JUDGMENT
Prakash Krishna, J.
1. This is plaintiffs appeal from order of the First Additional District Judge, Aligarh dated 13.5.1994 in Civil Appeal No. 45 of 1987 whereby the court below allowed the appeal, set aside the judgment and decree of the trial court and remanded the matter to the trial court for fresh decision.
2. The Suit No. 262 of 1981 was instituted by the present appellants against the defendant respondent on the pleas inter alia that the defendant is the tenant of the disputed land of which the plaintiffs are owners and landlord, on a monthly rent of Rs. 180. The defendant failed to pay the rent after 20.6.1977 and sublet a portion of it to defendant No. 3. The tenancy was terminated through a notice, which was served on 10.1.1981 and the suit was filed for recovery of arrears of rent, damages and ejectment of the defendants.
3. The defendant No. 1, contested the suit denying the ownership and landlordship of the plaintiff over the disputed land. He came out with the case that the disputed property was trust property in respect of which a litigation is already going on.
4. Issues were framed and the suit was posted for recording evidence. Due to dialectic tactics adopted by the defendant tenant, after recording of the evidence, the evidence of the defendant was closed as he failed to participate in the proceedings in spite of due notice. His action to stall the further proceedings of the suit went in vain. The defendant tenant also in his design to delay the disposal of the suit, filed transfer application for transferring the case to another Court on the pretext that he was a poor man and was not able to engage a counsel at his own expenses therefore free legal services may be provided to him through Legal Aid Board. The transfer application was rejected as it was not a bona fide one. The conduct of the defendant tenant has been noticed in detail by the court below in its order and it is not necessary to reproduce them. The fact remains that ultimately the suit was decreed ex parte. An application to set aside the ex parte decree filed by the defendant tenant. The said application was rejected and the order rejecting the application filed under Order IX, Rule 13, C.P.C. was confirmed in appeal.
5. The defendant tenant simultaneously also filed a regular appeal against the judgment and decree dated 4.12.1986 of the trial court decreeing the suit for ejectment and recovery of arrears of rent etc. This was numbered as Civil Appeal No. 45 of 1987.
6. The court below by the order under appeal has allowed the aforestated appeal and set aside the judgment and decree of the trial court. Aggrieved against the aforesaid judgment and decree the present appeal is at the instance of the plaintiff.
7. It may be placed on record that after the decree of the suit by the trial court the plaintiffs have obtained the possession over the disputed property by ejecting the defendant tenant and presently the plaintiffs are in occupation of the disputed property.
8. The appellate court has found that “on an examination of the record I find that the defendant No. 1 who has appealed before this Court has undoubtedly been guilty of delaying the proceedings of the case”. The learned Counsel for the appellant strenuously contended that having recorded the aforesaid finding and taking into consideration that an application under Order IX, Rule 13, C.P.C. was dismissed and that order was confirmed in appeal, the court below committed illegality in setting aside the order of the trial court on the ground that the defendant could not participate in the proceedings. In contra, the learned Counsel for the defendant respondents submitted that since the defendant tenant could not participate in the proceedings, the order under appeal is just and proper order and therefore, the Court should not interfere in this appeal.
9. I have given careful consideration to the respective submissions of the learned Counsel for the parties. The appellate court in so many words in para 8 of its judgment has found that the defendant was undoubtedly guilty of delaying the proceedings of the case and his conduct was also undesirable. However, taking a sympathetic view of the matter observed that the merits of the case has yet to be examined and therefore it remanded the matter back to the trial court. The said approach of the appellate court in the facts and circumstances of the case cannot be approved. So far as the question of affording proper opportunity of hearing is concerned, it does not lie in the mouth of the defendant to say that no proper opportunity of hearing was afforded to him by the trial court. It also does not lie in his mouth to say that he was prevented by sufficient cause that the suit was taken up for hearing. A person to whom opportunity of hearing was afforded cannot make a complaint that he could not avail it because of his own fault. Therefore, the appellate court was not justified in remanding the matter back to the trial court to dispose of the suit within a period of four months after giving opportunity to the parties to adduce their evidence. The said direction affording opportunity to the parties to adduce evidence in the facts and circumstances of the case is uncalled for as the conduct of the defendant itself is blemished. This part of the order cannot be sustained, but that is no the end of the matter. The appellate court has rightly found that the case was not examined on merits. Still it is open to the defendant to argue on the basis of the material on record and he can demonstrate that the decree of the trial court cannot be sustained on the basis of the material on the record. For this limited purpose the appellate court should have examined the matter itself instead of restoring the matter to the file of the trial court. The decision by the Apex Court in Bhanu Kumar Jain v. Archana Kumar , covers the issue in its entirety. The relevant paragraphs 37, 38 and 39 from the report is reproduced below:
37. We have, however, no doubt in our mind that when an application under Order IX, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available thereagainst viz. to prefer an appeal in terms of Order XLIII, Rule 1 of the Code. Once such an appeal is dismissed, the appellant cannot raise the same contention in the first appeal. If it be held that such a contention can be raised both in the first appeal as also in the proceedings arising from an application under Order IX. Rule 13, it may lead to conflict of decisions which is not contemplated in law.
38. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the Court can also be a possible plea in such an appeal. We, however, agree with Mr. Chaudhari that the “Explanation” appended to Order IX, Rule 13 of the Code shall receive a strict construction as was held by this Court in Rani Chaudhury, P. Kiran Kumar and Shyam Sundar Sharma v. Pannalal Jaiswal.
39. We, therefore, are of the opinion that although the judgment of the High Court cannot be sustained on the premise on which the same is based, the respondents herein are entitled to raise their contentions as regards merit of the plaintiffs case in the said appeal confining their contentions to the materials which are on record of the case.
10. The appeal is therefore allowed in part. The order of the remand passed by the court below is set aside and the matter is restored back to the file of the court below who shall hear and decide the appeal on merits on the basis of the material available on the record in the light of the observations made above. No order as to costs.