Shri Ishabhai Jivabhai Jafari vs Jain Enterprises on 19 October, 2011

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH AT NAGPUR




                                                                                        
                             Letters Patent Appeal No. 116/2011 in




                                                                
                                   Writ Petition No. 276/2011

            Sadruddin Jivabhai Jafari,
            aged 53 years, Occ. Service, thr. his
            constituted power of attorney holder




                                                               
            Shri Ishabhai Jivabhai Jafari r/o Laxmibai
            Ward, Gondia, Tq.Dist. Gondia.                                      .....APPELLANT

                                   ...V E R S U S...




                                                
     1.     Jain Enterprises, thr. its Proprietor
                            
            Mr. Sunilkumar Ratanchand Jain,
            aged 47 years, Occ. Business.
                           
     2.     Sunilkumar Ratanchand Jain,
            aged 47 years, Occ. Business,

            Both r/o Laxmibai Ward, Gondia,
      

            Tq. Dist. Gondia, thr. his power of
            attorney holder Mohan s/o Ladharam
   



            Prithiani, r/o Sindhi Colony, Gondia,
            Dist. Gondia.

     3.     Pramodkumar s/o Ratanchand Jain,





            aged about 45 years, Occ. Business,
            r/o Civil Line, Gondia, Tq. Dist. Gondia.                           ....RESPONDENTS

     --------------------------------------------------------------------------------------------------------
     Mr. Atul Vastani with Mr. D. V. Mahajan, Advocate for appellant.





     Mr. Anup Parihar, Advocate for respondents.
     --------------------------------------------------------------------------------------------------------

     CORAM:- S. A. BOBDE & M. N. GILANI, JJ.

th
Date of Reserving the Judgment: 27 September, 2011

th
Date of Pronouncing the Judgment: 19 October, 2011

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ORAL JUDGMENT (Per:- S. A. Bobde, J.)

1. Heard. Admit. Taken up for final hearing by consent of the

parties.

2. This appeal is preferred by landlord against order of the

learned Single Judge holding that the lower appellate Court was justified in

holding that the application under Order IX Rule 13 of the Code of Civil

Procedure was not maintainable but remanding the matter to the District

Judge, Gondia to decide the appeal in accordance with law. The suit filed

by the appellant before the Civil Judge Senior Division, Gondia for eviction,

possession and arrears of rent was proceeded ex parte and eventually

decreed. The tenants preferred an appeal against the ex parte decree along

with an application for condonation of delay. They also filed an application

under Order IX Rule 13 of the C.P.C. for setting aside the ex parte decree.

The District Judge, Gondia dismissed the application for condonation of

delay in filing the appeal against the ex parte decree and the civil suit was

also dismissed. Thereafter, the trial Court i.e. Civil Judge Senior Division,

Gondia dismissed the tenant’s application under Order IX Rule 13 of the

C.P.C. for setting aside the ex parte decree.

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3. The tenants, therefore, preferred Misc. Civil Appeal before

the District Judge, Gondia against the order rejecting their application

under Order IX Rule 13. The appellant-landlord raised a preliminary

objection to the maintainability of this appeal on the ground that after

dismissal of the regular appeal against the ex parte decree, the application

under Order IX Rule 13 of the C.P.C. was bound to be dismissed in view of

explanation to Order IX Rule 13 and, therefore, the Misc. Civil Appeal under

Order XLIII Rule 1-A of the C.P.C. against the order rejecting application

under Order IX Rule 13 was itself not tenable.

4. The learned District Judge hearing appeal under Order XLIII

Rule 1-A against rejection of the application under Order IX Rule 13, held

that application under Order IX Rule 13 was not maintainable since ex parte

judgment and order had been dismissed and not withdrawn as

contemplated by explanation to Order IX Rule 13. The District Judge,

however, also held that since the application under Order IX Rule 13 was

not tenable, the appeal against rejection of that application was also not

tenable. The explanation to Order IX Rule 13 of the C.P.C. reads as follows:

“Order IX Rule 13

13. Setting aside decree ex parte against defendant- In any case
in which a decree is passed ex parte against a defendant, he may
apply to the Court by which the decree was passed for an order to

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set it aside; and it he satisfies the Court that the summons was

not duly served, or that he was prevented by any sufficient cause
from appearing when the suit was called on for hearing, the

Court shall make an order setting aside the decree as against him
upon such terms as to costs, payment into Court or otherwise as
it thinks fit, and shall appoint a day for proceeding with the suit:

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:

Provided further that no Court shall set aside a decree

passed ex parte merely on the ground that there has been an
irregularity in the service of summons, if it is satisfied that the

defendant had notice of the date of hearing and had sufficient
time to appear and answer the plaintiff’s claim.

Explanation-Where there has been an appeal against a

decree passed ex parte under this rule, and the appeal has been

disposed of on any ground other than the ground that the
appellant has withdrawn the appeal, no application shall lie
under this rule for setting aside that ex parte decree.”

Order XLIII Rule 1-A of the C.P.C. which is relevant reads as

follows:

“Order XLIII Rule 1-A
1-A. Right to challenge non-appealable orders in appeal against
decrees-

(1) Where any order is made under this Code against a party

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and thereupon any judgment is pronounced against such party

and a decree is drawn up, such party may, in an appeal against
the decree, contend that such order should not have been made

and the judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit after
recording a compromise or refusing to record a compromise, it

shall be open to the appellant to contest the decree on the ground
that the compromise should, or should not, have been recorded.”

From a plain reading of the explanation to Order IX Rule 13,

it is obvious that an application for setting aside an ex parte decree will not

lie where an appeal has also been filed against that very decree and has

been disposed of on any grounds other than the fact that it has been

withdrawn. Therefore, in the writ petition filed by the tenants, the learned

Single Judge has rightly held that the finding of the learned District Judge

to that effect is correct.

5. However, as regards the tenability of the appeal against the

order rejecting the application under Order IX rule 13 of the C.P.C. it is

equally obvious that the learned District Judge was wrong in holding the

same to be not maintainable merely because application under Order IX

Rule 13 of the C.P.C. was found to be not maintainable. A Judgment

Debtor whose application under Order IX Rule 13 for setting aside the

dismissal of a suit has been rejected is entitled to prefer an appeal and the

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appeal cannot be dismissed as not tenable merely because the application

under Order IX Rule 13 has been rejected as not tenable. The learned

Single Judge quite rightly observed in the judgment that the District Judge

ought not to have held that the appeal before him was not tenable.

6. Thus, there is no reason why the appellant-tenant should

raise any grievance about these findings of the learned Single Judge.

However, the learned Single Judge has remanded the matter back to the

appellate Court for deciding the appeal, in accordance with law. The

appellant, aggrieved by that finding has preferred this Letters Patent

Appeal.

7. Having considered the matter, we are of the view that the

remand of the matter to the appellate Court was not necessary since the

learned Single Judge had come to the conclusion that the finding of the

learned District Judge that the appeal was not tenable was wrong. The

learned Single Judge having held that the appeal was tenable and that the

order in appeal was otherwise justified, it would have been proper for the

learned single Judge to hold that the application under Order IX Rule 13 of

the C.P.C. was rightly rejected as not tenable. The order of the remand

results in sending the matter back to the appellate Court only for the

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purpose of rendering a finding that the appeal is tenable. This was not

necessary.

In this view of the matter, we set aside only the direction of

the learned Single Judge remanding the matter back to appellate Court. In

our view, the order of the learned Single Judge is liable to be upheld and

the order of the remand to the lower appellate Court is liable to be set

aside.

Order accordingly.

The L. P. A. stands disposed of. No order as to costs.

                               JUDGE                                   JUDGE
      
   



     kahale






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