IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31870 of 2009(O)
1. SHIVA, S/O.GOVIND NAIK, D.NO.E-44-1,
... Petitioner
Vs
1. THE FERTILIZER & CHEMICALS TRAVANCORE
... Respondent
2. CHIEF DISTRIBUTION MANAGER,
3. NAVADURGA WAREHOUSING CORPORATION,
4. SUJAYANAND, S/O.SHIVA NAIK, OCC: NIL,
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :09/11/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No. 31870 of 2009
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Dated: 9th November, 2009
JUDGMENT
The Writ Petition is filed seeking the following reliefs:
1. To call for the records relating to Ext.P7 order and set aside the
same and allow Ext.P5 application as prayed for.
2. To hold that the order Ext.P2 setting aside the ex parte decree
enures to the petitioner’s benefit as well under the 1st proviso to
Order 9 Rule 13 of the Code of Civil Procedure.
3. To pass an order of stay of all proceedings in the suit O.S.No.215
of 2000 on the file of the Subordinate Judge’s Court of North Paravur,
pending disposal of the above writ petition.
2. Petitioner is the second defendant in O.S.No.215 of 2000 on
the file of the Sub Court, North Paravur. The above suit is one for
recovery of money, and the respondents 1 and 2 are the plaintiffs.
Respondents 3 and 4 in the present petition are defendants 1 and 3
in the suit. An ex parte decree was passed in the suit on 31.3.2004.
Defendants 1 and 3 (respondents 3 and 4) moved an application to
set aside the ex parte decree under Order 9 Rule 13 of the Code of
Civil Procedure. That application was allowed by P2 order setting
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aside the ex parte decree and restoring the suit to file. After the suit
was restored, petitioner, the 2nd defendant, moved P5 application
along with his written statement requesting that the setting aside of
the ex parte decree be treated as applicable to all the defendants in
the suit, and he also be permitted to contest the suit and have a
decision on merits. Plaintiffs filed P6 objections to that application.
The learned Sub Judge, after hearing both sides, declined the request
of the petitioner/2nd defendant by P7 order. Propriety and correctness
of P7 order is challenged in the Writ Petition invoking the supervisory
jurisdiction vested with this court under Article 227 of the
Constitution of India.
3. I heard the learned counsel for the petitioner. Having regard
to the submissions made and the facts and circumstances presented
with reference to P7 order challenged in the writ petition, I find no
notice to the respondents is necessary and it is dispensed with.
Learned counsel for the petitioner inviting my attention to P1, copy of
the plaint in the suit, submitted that the allegations raised by the
plaintiffs clearly spell out that a decree in common as against all the
defendants imputing that they are jointly and severally liable for the
suit claim has been canvassed, and so much so, when the ex parte
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decree passed in the suit had been set aside at the instance of some
of the defendants in the suit, it has to enure to the benefit of all the
defendants in common. Though it has not been so specifically stated
in the order setting aside the ex parte decree, having regard to the
applicability of the first proviso to Rule 13 of Order 9 of the Code of
Civil Procedure, according to the learned counsel, it is open to the
court to permit the petitioner/2nd defendant also to contest the suit,
receiving his written statement, treating that the decree had been set
aside ex parte as against him as well in allowing of the application
moved by the two other defendants in the suit.
4. The applicability of the first proviso to Rule 13 of Order 9 of
the C.P.C. canvassed by the learned counsel to contend that the ex
parte decree set aside at the instance of some other defendants in
the suit has to be treated as in common for the other defendants as
well in view of the allegations raised in the plaint imputing joint and
several liability against the defendants does not at all carry
conviction. When an ex parte decree is passed against several
defendants, the ordinary rule is that, if at all, it is set aside, it is
applicable only in the case of those who had applied for setting it
aside. However, the first proviso to Rule 13 of Order 9 of the C.P.C.
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enables the court to set it aside even as against the others who had
not appeared, if the nature of the decree requires it. The first proviso
to the above rule reads thus:
“Provided that where the decree is of such a nature
that it cannot be set aside as against such defendant only
it may be set aside as against all or any of the other
defendants also.”
It has to be noted the proviso does not confer any right on the party
but only empower the court while setting aside an ex parte decree at
the instance of one of the defendants to set aside that decree against
all or any of the other defendants also where it is satisfied the decree
is of such a nature that it cannot be set aside solely against the
defendant who alone had applied for setting aside the ex parte
decree. The rule would apply in cases where the decree is one and
indivisible, the decree likely to be passed after setting aside the
earlier ex parte decree would result in inconsistent decree, if it were
not set aside against the other defendants also, the relief to which
the applicant is entitled to in the suit could not effectively be given
otherwise than by setting aside the decree as against the other
defendants also and where the decree proceeds on a ground common
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to all the defendants. The fundamental principle to be followed in the
applicability of the first proviso to Rule 13 of Order 9 C.P.C. is that if
the ex parte decree is of such a nature that it cannot be set aside
against the defendant who had applied only, it may be set aside as
against all or any of the other defendants. But, it has to be noted that
the applicability of the proviso has to be considered by the court at
the time of setting aside the ex parte decree and not at a later stage
after the restoration of the suit on setting aside the ex parte decree
at the instance of any other defendant who had not applied for
setting aside the ex parte decree against him.
5. Normally, in the case of a money claim, the general rule is
that the ex parte decree is not set aside for the codefendant other
than the applicant who has moved for setting aside the ex parte
decree. In Vasant v. Tukaram (AIR 1960 Bombay 485) where a suit
for damages was instituted against three defendants who were
partners and it was decreed ex parte against one of them, and
against the other two after hearing them, and the ex parte defendant
applied to set it aside, it was held no order should be made setting it
aside against the other defendants also. The allegation in P1 plaint
that the first defendant is a proprietary concern and the second and
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third defendants are having interest and control over the first
defendant, which has been canvassed to contend that the ex parte
decree passed against the second defendant has also to be treated as
set aside on the allowing of the application moved by the other
defendants for setting aside the ex parte decree, applying the first
proviso to Rule 13 of Order 9 of the C.P.C., in the given facts of the
case and the principles of law applicable, is found to be devoid of any
merit. I do not find any impropriety or illegality in P7 order passed by
the court below. Writ Petition lacks merit, and it is dismissed.
srd S.S. SATHEESACHANDRAN, JUDGE