Jayaprakash . vs T.S.David .

CIVIL APPEAL NO. 883 OF 2018 (Arising out of S.L.P.(c) No. 14306 of 2015)

Jayaprakash & Anr. ….Appellant(s)

VERSUS

T.S. David & Ors. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed by the plaintiffs against the

final judgment and order dated 05.11.2014 passed

by the High Court of Kerala at Ernakulam in R.F.A.

No.541 of 2007 whereby the High Court allowed the Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2018.01.25 16:22:25 IST Reason: 1 appeal filed by defendant Nos. 3 & 4 (respondent

Nos.1 & 2 herein) and set aside the judgment and

decree dated 20.02.2007 passed by the sub-Court,

Kottayam in O.S. No.337 of 2001.

3. In order to appreciate the short controversy

involved in the appeal, few relevant facts need

mention hereinbelow.

4. The appellants are the plaintiffs whereas the

respondents are the defendants in the civil suit out

of which this appeal arises.

5. The appellants filed a civil suit being O.S. No.

337/2001 against the respondents (defendants) in

the Court of Principal Sub-Judge, Kottayam for

specific performance of the agreement (Ex-A-1) for

sale of suit properties to the appellants by the

respondents (defendant Nos.1-4) for a total

consideration of Rs.5,70,000/-.

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6. According to the appellants, since defendant

Nos. 1 and 2 (original owners of the suit properties)

failed to sell the suit properties to the appellants as

per the terms of the agreement despite taking

advance money from the appellants and instead

sold the suit properties to defendant Nos. 3 and 4,

the appellants filed the suit against defendant Nos.

1 to 4 seeking specific performance of the agreement

(Ex-A-1) against defendant Nos. 1 and 2.

7. The defendants (respondents) were served by

substituted service. They, however, remained ex

parte since inception. The Trial Court, therefore, on

27.02.2004 passed an ex parte decree against the

defendants (respondents) jointly and severally.

8. Thereafter, defendant Nos. 3 and 4 applied for

setting aside of the ex parte decree dated 27.2.2004

under Order 9 Rule 13 of the Code of Civil

Procedure, 1908. The Trial Court, by order

3 20.12.2006, allowed the application and set aside

the ex parte decree and restored the original suit to

its file to decide the suit afresh on merits.

9. On remand, defendant Nos. 3 and 4 filed the

written statement. So far as defendant Nos. 1 and 2

are concerned, they remained ex parte. The Trial

Court, by judgment/decree dated 20.02.2007, again

decreed the suit against all the four defendants

jointly and severally.

10. Defendant Nos. 3 and 4 felt aggrieved and filed

first appeal before the High Court. By impugned

judgment, the High Court allowed the appeal and

while setting aside the judgment/decree of the Trial

Court again remanded the case to the Trial Court

for fresh trial on merits. In the opinion of the High

Court, the Trial Court did not decide the issues

arising in the case properly and, therefore, the

entire case needs a fresh consideration with a

4 liberty to parties to adduce further evidence. The

case was accordingly remanded to the Trial Court.

11. The plaintiffs felt aggrieved by the impugned

judgment and have filed this appeal by way of

special leave in this Court.

12. Therefore, the short question, which arises

for consideration in this appeal, is whether the High

Court was justified in remanding the case to the

Trial Court for its de novo trial.

13. Heard Mr. C.S. Rajan, learned senior counsel

appearing for the appellants and Mr. Thomas P.

Joseph, learned senior counsel for respondent Nos.

3 & 4 and Mr. C.K. Sasi, learned counsel for

respondent Nos. 1 & 2.

14. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

find no merit in this appeal.

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15. In our opinion, the remand order of the High

Court to try the suit afresh on merits appears to be

correct, though we uphold the remand order on

additional grounds, which were not taken note of by

the High Court and nor urged here. In our opinion,

therefore, the remand of the case to Trial Court is

otherwise called for.

16. It is not in dispute that all the four defendants

(1 to 4) suffered ex parte decree on 27.02.2004

jointly and severally. It is also not in dispute that

only defendant Nos. 3 and 4 applied to the Court for

setting aside the decree under Order 9 Rule 13 of

the Code. This application was allowed by the Trial

Court by order dated 20.12.2005 which resulted in

setting aside of the entire ex parte decree against all

the defendants, including defendant Nos. 1 and 2

though they did not apply for its setting aside. The

6 suit was accordingly restored to its file for fresh trial

on merits.

17. In our view, defendant Nos. 1 and 2 were

entitled to a notice of the proceedings under Order 9

Rule 13 of the Code in terms of local amendment

made by the State of Kerala in the first proviso to

Order 9 Rule 13, wherein the words "after notice to

them” were inserted. This local amendment made in

the first proviso to Order 9 Rule 13 was applicable

to defendant nos. 1 and 2. When enquired, it was

stated that no notice was served on defendant Nos.

1 and 2 before setting aside the ex parte decree and

in their absence, the suit was restored. This was, in

our view, one irregularity committed by the Trial

Court while restoring the entire suit, though it was

for the benefit of defendant Nos. 1 and 2.

18. Be that as it may, in our considered opinion,

after the suit was restored at the instance of

7 defendant Nos. 3 and 4, the Trial Court committed

another error inasmuch as it again did not issue

fresh notice of the suit to defendant Nos. 1 and 2. In

other words, defendant Nos. 1 and 2 were entitled

for a fresh notice of the suit once restored despite

their non-appearance in the first round of trial in

the suit and in Order 9 Rule 13 proceedings.

19. The Trial Court, however, again decreed the

suit by judgment/decree dated 20.02.2007 ex parte

against defendant Nos. 1 and 2 but after hearing

only defendant Nos. 3 and 4. It is against this

judgment and decree which was impugned in

appeal by defendant Nos. 3 and 4, which was again

set aside by the High Court by impugned judgment

resulting in remand of the case to the Trial Court for

fresh trial on merits giving rise to filing of this

appeal by the plaintiffs.

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20. As mentioned above, though we are inclined to

uphold the remand order, but that we do so on the

basis of aforementioned two grounds noticed by us

in the proceedings in the suit and in Order 9 Rule

13 proceedings. The two legal infirmities noticed by

us in the proceedings call for remand of the case to

the Trial Court for fresh adjudication of the civil suit

on merits in accordance with law.

21. In the light of the foregoing discussion, the

appeal fails and is accordingly dismissed.

22. The Trial Court will now issue fresh notice to

defendant Nos. 1 and 2 in the suit by usual mode of

service and then by substituted service, if need

arises. It is only after the service of the suit is held

complete on defendant Nos. 1 and 2, the Trial Court

will proceed with the trial in the suit on merits.

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23. So far as defendant Nos. 3 and 4 are

concerned, they are already served and hence they

are not entitled to any notice.

24. Parties to appear before the Trial Court in the

Suit on 05.02.2018 to enable the Trial Court to

proceed in the trial as directed above. The Trial

Court will decide the suit on merits strictly in

accordance with law expeditiously.

………...................................J. [R.K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE] New Delhi;

January 25, 2018

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