CASE ANALYSIS

(Case Analysis towards fulfilment of Continuous Assessment 2 in the Subject of Code of Civil

Procedure.)

Submitted by:…………………………………………………… …Submitted to:

Siddharth Tandon ……………………………………………..Mr. Deepankar Sharma

Roll No.: 1407…… ……………………………………………..Assistant Professor

Semester III- B.BA. LLB (Hons.)… ……………………………......Faculty of Law

National Law University, Jodhpur

Summer Semester

(July- November, 2017)

 MAHESH YADAV AND ANR. V. RAJESHWAR SINGH AND ORS.

(2009) 2 SCC 205

The Supreme Court on interpretation of proviso appended to Order 9, Rule 13 of the Code

held that when an ex parte decree has been passed, the defendant may have more than one

remedies. He may file a suit contending that the decree was obtained fraudulently. He may

file an application under Order 9, Rule 13 of the Code for setting aside the ex parte decree.

He may prefer an appeal from ex parte judgment and decree. In a given case, he may also

file review application.

BENCH:

Justice S.B. Sinha and Justice Cyriac Joseph.

AUTHOR:

Justice S.B. Sinha

RELEVANT LAWS:

The Constitution of India - Article 142

Code of Civil Procedure (CPC) - Order 9 Rule 13

Indian Evidence Act, 1872 - Section 44

RELEVANT COURTS:

 Munisff Court.

 The Trial Court

 The High Court of Judicature at Patna

 The Supreme Court of India.

2
 PARTIES TO THE SUIT:

Mr. Mahesh Yadav and Anr. - Appellant, represented by Mr. Goutam Prasad.

Mr. Rajeshwar Singh and 5 Ors. - Respondent, represented by Mr. H.L. Agrawal.

RATIO DECIDENDI

“An order setting aside the ex parte decree being a judicial order should have been

supported by reasons”

3
 TABLE OF CONTENTS

FACTUAL BACKGROUND .................................................................................................. 5

ISSUES TO BE ADJUDGED ................................................................................................. 8

ANALYSIS ............................................................................................................................... 9

ARGUMENTS BY THE APPELLANT ............................................................................ 9

ARGUMENTS BY THE RESPONDENT ......................................................................... 9

DECISION OF SUPREME COURT OF INDIA ............................................................ 10

REASONING BEHIND THE JUDGEMENT................................................................. 12

CONCLUSION .................................................................................................................. 13

4
 FACTUAL BACKGROUND

In the present case, the Plaintiff filed the given suit as the Secretary of Magadh, Raj Jarsandh

Akhara, Rajgir. The Plaintiff, Mr. Mahesh Yadav was in possession of 9 decimals of the land.

The defendants, Mr. Rajeshwar Singh and the 5 others, attempted to take forcible possession

this land. Pursuant to this, the plaintiff filed a suit in the Munsif Court of Nalanda against Mr.

Singh and the five others who tried to take possession of his land. The defendants filed a joint

written statement.

However, while this suit remained pending in the Munsiff Court, defendants No. 2 and 5

entered into compromise with the plaintiff. This compromise was conveyed to the Court by

means of a compromise petition filed by the parties, which was accepted. Witnesses examined

on behalf of the plaintiff were cross-examined on behalf of defendant Nos. 1 and 6. However,

they did not adduce any evidence.

The learned Munsif, Biharsharif, decreed the suit, stating the following:

“After contest this suit is decreed in favour of the plaintiff partly on the basis of the compromise

petition and partly after contest. If the defendants have effected any possession over the

disputed land during pendency of the present suit, the plaintiff will have full right to effect

eviction of the defendants with the assistance of the court on payment of proper cost. No order

regarding any cost is being given in the suit.”

The Appellants, following this order, filed a suit in the District Court under Order 9 Rule 13 of

the Code of Civil Procedure, 1908 [“CPC”], and presented their case with a large number of

witnesses in their favour. However, during the pendency of this hearing, the Judge was

transferred. This was in the year 1995.

5
In 2003, the learned District Court Judge while considering the case of the appellants that they

were kept in dark about the development of the case due to connivance of the respondents

directed that the applicant furnishes satisfactory reasons to show that he had no information

about developments in suit and his application for revival is fit to be accepted.

The District Court judge was satisfied that the applicant had furnished enough reason to show

that he was unaware about the developments in the matter. The application was, therefore,

accepted subject to a cost of Rs. 200/- under Order 9 Rule 13 of the CPC. The ex parte decree

of the Munsiff Court was, thus, set aside.

A revision application was filed in the High Court. The High Court passed the impugned

judgment only on the premise that as all the defendants had filed a joint written statement, there

was no occasion for the court to set aside the ex parte decree stating that if a fraud had been

practised upon the court, an appropriate proceeding should have been initiated. Therefore,

permitting setting aside an ex parte decree under Order 9 Rule 13 of the CPC is set aside by

the High court.

NOTE: Order 9 Rule 13 reads as under:

"13. Setting aside decree ex parte against defendants.--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 set it aside; and if 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:

6
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 plaintiffs

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

the ex parte decree."

7
 ISSUES TO BE ADJUDGED

1. Whether the decision of the High Court setting aside the order of District Court to set

aside the ex-party decree is sustainable?

2. Whether the presence of a joint statement binds all the parties to the suit to accept the

compromise of some of the parties?

8
 ANALYSIS

The analysis of the present case will be based on the analysis of the arguments given by

appellant and respondent respectively. Further, the decision of the Supreme Court will be

discussed. Finally, I would attempt to find out the reasoning behind the judgement.

ARGUMENTS BY THE APPELLANT

The appellants contended that the decree was obtained via fraud as only some of the parties

agreed to compromise with the respondents. Although, two appellants, i.e. Defendant No 1 and

6, were involved in some talks with the respondents, it does not mean that they agreed to enter

into any compromise with them.

The appellants also argued that the premise of presumption that the property belonged to

plaintiff just because no evidence was adduced by them is a faulty one.

The appellant contended that just because they filed a joint statement that does not mean that

they were bound by any compromise entered by the parties contesting with them, and therefore,

the decision given on the premise of joint statement and its binding value which was itself

based on the compromise between the parties is not valid.

ARGUMENTS BY THE RESPONDENT

The Respondents to the Appeal argued that as the Appellants had filed a joint statement before

the Court, they were, therefore, bound by the decision given on that. Thus, the application filed

by Appellants is invalid.

Further, the Respondents stated that some of the defendants in the case before the Munsiff

Court agreed to compromise with them and other have not adduced any evidence before the

9
court. Moreover if the party had got the judgment through fraud then suit under section 44 of

evidence Act could have been filed which was not done at any time by the party.

DECISION OF SUPREME COURT OF INDIA

In the course of argument, the learned Counsel appearing on behalf of the appellant, submitted

that the High Court had failed to take into consideration that only because a joint written

statement was filed, the same was binding upon the appellants although some of them had been

won over by the plaintiff. While, the learned senior counsel appearing on behalf of the

respondents, however, supported the judgment.

The Learned Supreme Court stated that the High Court of Patna failed to notice the contents of

the written statement filed by the appellants. Further, The High Court failed to consider that

talks of compromise were started by and between the defendant Nos. 1 and 6, only, and the

plaintiff. It was on the aforementioned premise alone, the plaintiff was found to be in

possession of the suit land and a decree was passed.

The Supreme Court said that there was nothing on record to show that the Appellants were

being represented by the same learned advocate during the course of the Trial. If they were

represented by different advocates, it is not known as to whether the order of transfer of the

case was brought to the notice of the learned advocate for the appellants, therefore, The High

Court may not be correct in holding that only because a joint written statement was filed, an

application for ex parte decree was not maintainable.

The proviso appended to Order 9 Rule 13 of the CPC states that when an ex parte decree has

been passed against some of the defendants, and it is necessary to set aside the entire decree, it

is within the powers of the Court to do so. When an ex parte decree is passed, the defendant

may have more than one remedies. These include:

10
 a. Filing a suit contending that the decree was obtained fraudulently.

b. Filing an application under Order IX Rule 13 of the Code of Civil Procedure for setting

aside the ex parte decree.

c. Preferring an appeal from the ex parte judgment and decree.

d. Filing a review application.

Considering the principle related to ex parte decrees and Order 9 Rule 13 of the CPC in Bhanu

Kumar Jain v. Archana Kumar and Anr1, the Supreme Court held that the judgment of the High

Court was not sustainable. The court also said that the order by the Civil Judge was an

unreasoned one. Further, they found that the evidence adduced on behalf of the appellants was

not analysed for arriving at a finding as to whether a case for setting aside an ex parte decree

has been made out by the appellants or not. The matter had not been considered appropriately

as per Order 9 Rule 13 of the CPC.

The Supreme Court, thus, laid down that an order setting aside the ex parte decree being a

judicial order should have been supported by reasons. Therefore, the Supreme Court set aside

the Judgment of the High Court and Civil Judge. It further ordered a fresh hearing into the case.

1
Bhanu Kumar Jain v. Archana Kumar and Anr, AIR 2005 SC 626

11
 REASONING BEHIND THE JUDGEMENT

The Supreme Court after a through perusal of all the relevant facts and findings, concluded that

the High Court of Patna was wrong in coming to the impugned decision. The Supreme Court

expressed its dissatisfaction that the High Court did not delve into the written statement filed

by the appellants in the matter. The Supreme Court observed that there were talks for

compromise going on between the plaintiff and only 2 of the defendants, i.e. defendant No 1

and 6. The Supreme Court admonished the High Court for not analysing the evidence adduced

by the appellants in the present matter.

The court found that there was nothing in the record to show that all the defendants were

represented by the same counsel and therefore, the knowledge was not provided to the other

defendants about the transfer of case. Further, it was observed that mere joint statement by the

defendant does not mean that they are bound by the compromise made by some of the party

and have the right to file an application to set aside the decree.

The Supreme Court also dismissed the order of setting aside the ex-parte decree by Civil Judge

as it was not based on proper reasons. The Supreme Court did not find the intention of the

defendants, as all together, to set aside the decree.

12
 CONCLUSION

According to me, the Supreme Court’s decision is correct, in all senses. The Court has correctly

clarified that a joint statement in a suit does not bind all the parties to the suit. The Court held

that in cases where a co-party has decided something, it does not bind the other co-parties.

The Supreme court while considering the present case, is correct in its order to set aside the

Judgment of the High court and Civil Judge. The Supreme Court said that any order setting

aside the ex-parte decree being a judicial order must be supported by reasons. The court said

that there should be logical and valid supported reason while setting aside the ex-parte decision.

The statements made by both parties must always be taken into consideration. One party must

not be given undue precedence over the other. Evidence adduced by both parties must be taken

into equal consideration, and a judgment should be passed only after such perusal by the Court.

The Supreme Court admitted that an application to set aside an ex parte decree would be

accepted if it is proved that a summons was not duly served, and if it is proved that the party

was prevented from appearing for the hearing.2 Furthermore, there has been an element of fraud

involved in the present matter as the plaintiff though had entered into compromise with some

of the defendant (No 1 and 6) and were in deliberation with others they presented such picture

before the lower court that all the parties have refrained their claims and thus influenced the

lower court to pass an ex-parte decree. It has been held that a suit to set aside an ex-parte decree

obtained by fraud and collusion is maintainable and it is also open to the defendant to institute

a regular suit3.

2
UCO Bank v. Iyengar Consultancy Services, 1994Supp (2) SCC 399
3
Rupchand v. Raghuvanshi, AIR 1964 SC 1889

13
The Court has previously held that it is upon the defendant to decide whether he wants to file

an application under Order 13 Rule 9 or a suit. However, the disposal of the suit will result in

a ban in operation of the right of application under Order 13 Rule 94. Thus the decision of the

Court in the present matter is apt owing to the facts and circumstances of the case.

4
Rani Chaudhary v. Suraj Jit Chaudhary, (1982) 2 SCC 596

14