IN THE SUPREME COURT OF INDIA
Civil Appeal No. 768 of 1963
Decided On: 13.12.1963
Mohindra Kumar and Ors.
Hon’ble Judges/Coram: B.P. Sinha, C.J., A.K. Sarkar and N. Rajagopala Ayyangar, JJ.
Citation:AIR 1964 SC 993
- This is an seductiveness by special leave filed by a suspect whose focus underneath O. IX, r. 13, Civil Procedure Code to set aside an ex parte direct inspected opposite him has been liberated as barred by res judicata.
- To conclude a points outset in a seductiveness it would be compulsory to recount a record in 3 litigations between a parties. The ex parte direct that was inspected opposite a suspect – who will penance be referred to as a appellant – and that he sought to be set aside in a record that are a theme of a benefaction appeal, was in Suit 134 of 1956 on a record of a Court of Second Civil Judge, Kanpur. But prolonged before this fit was filed, a dual other record were already pending. The initial of them was a Small Cause fit by one Phula Kuer who sought to redeem from a appellant Rs. 750 on a basement that she and a appellant were partners and by an arrangement between them he resolved to compensate her Rs. 150 per month for her share of a increase that he had unsuccessful to pay. This was fit 1023 of 1951 on a record of a Small Cause Court, Kanpur. The appellant entered on his counterclaim and denied a partnership and his guilt to compensate a sum claimed. While this fit was pending, a appellant in his spin filed fit No. 20 of 1953 opposite Phula Kuer for regulating a satisfactory lease of a premises in that he was carrying on a business, that Phula Kuer ostensible was a partnership business, it being common belligerent that Phula Kuer was a owners thereof. While these dual suits were tentative Phula Kuer died on Jul 13, 1953 and afterward one Rup Chand Jain filed fit 134 of 1956 already referred to. Rup Chand Jain died tentative a seductiveness in a High Court and is now represented by his heirs who have been brought on record. It would however be available to impute to a respondents as a plaintiff.
- Suit 134 of 1956 that was filed on May 19, 1956 steady a explain that Phula Kuer had entered into a partnership with a appellant underneath that she was entitled to get for her share Rs. 150 per month. This share of profits, it was alleged, had been paid to her adult to Oct 14, 1950 and that afterward a appellant unsuccessful to compensate a same. The plaintiff claimed to be a unbroken reversioner of Phula Kuer and on that basement claimed that a sum of Rs. 4,200 was due to him. Besides this, he ostensible that a appellant had been regulating a building belonging to Phula Kuer in courtesy to that he was probable to compensate lease that was claimed during Rs. 150 per mensem. The plaintiff also claimed that he was entitled to exude a appellant from a premises. In a result, a reliefs claimed in a fit were a money-decree for Rs. 9,390 on comment of a equipment we have set out, and (2) eviction from a premises where a business was being carried on. Having courtesy to a contentions of a parties in a 3 suits, all of them were eliminated by a District Judge, to a probity of a Second Civil Judge, Kanpur on Aug 4, 1956, and on Aug 23, 1956 a Civil Judge inspected an sequence directing that a suits 20 of 1953 and 134 of 1956 be combined for corner hearing, a justification led in Suit 134 of 1956 being treated as justification in a other fit as well. On Oct 10, 1956 a appellant filed his created matter to Suit 134 of 1956 in that he put brazen a box that he had already been reporting viz., (1) deficiency of any partnership attribute between himself and Phula Kuer, and (2) that he was in possession as a reside and could not be evicted given a explain orthodox conditions to capacitate a plaintiff to explain eviction, were not satisfied. Needles to supplement that there were several other defences that he urged to that it is nonessential to refer. Thereafter there were questions lifted as regards a endowment of a court-fee paid by a plaintiff in Suit 134 of 1956, applications by a plaintiff to rectify a wail etc. These took place during a year 1957. The issues were staid on Feb 28, 1958. We can pass over what transpired in a early partial of 1958. Both a parties were attempting to outcome a concede and for that purpose a conference was shelved nonetheless a concede was not finalised, and finally, on May 24, 1958 a corner focus was finished by a plaintiff and a appellant that dual months’ time competence be postulated to them to arrive during a allotment and that a conference that was firm for May 28, 1958 competence be shelved for that purpose. The court, however, refused this focus for a reason that a fit for a emplacement of lease was of a year 1953. On a 28th there was again another focus for demurral and a probity shelved a conference by one day and firm it for May 29, 1958, a sequence saying “If no concede is filed a box would be taken adult for final hearing”. On 29th a plaintiff was benefaction nonetheless a appellant was absent and a letters warn who was benefaction reported that they had no instructions to control a case. Thereupon a probity inspected an sequence in Suit 134 of 1956 in these terms :
“The plaintiff is present. Defendant is absent. Counsel for a defendants have no instructions. Case deduction ex parte. Plaintiff examined Mohindra Kumar and closed.”
- The sequence resolved with a disproportion “Judgment reserved”. In a fit for a emplacement of lease that was taken adult for conference on a same date a sequence of a probity ran :
“Plaintiff is absent. Defendant with his Counsel is present. Counsel for a plaintiff has no instructions. Suit is liberated as per orders inspected separately.”
- It is customarily compulsory to supplement that a third fit – 1023 of 1951 – was on a same day also dictated ex parte.
- On May 31, 1958 a appellant filed 3 applications in a 3 suits for environment aside a ex parte orders inspected opposite him. The focus in Suit 134 of 1956 was treated as a primary one and in support of it an confirmation was filed in that a appellant staid that after a talks for concede had reached a wilful theatre and when a appellant was creation arrangements to practice that preference he got an conflict of heat-stroke and was, therefore, amateurish to be benefaction in Court when a box was called on a 29th – i.e. a day firm for hearing. He, therefore, prayed that a sequence or instruction to ensue ex parte inspected opposite him in a dual suits in that he was suspect competence be set aside and he be given an event to competition a suits. Needless to supplement that in fit 20 of 1953 that had been liberated for default, a ask was to set aside that dismissal. Notices were released on these applications and a plaintiff filed a counter-affidavit in that he doubtful a law of a matter per a appellant’s illness and prayed that a applications competence be dismissed. He also suggested that if they were to be systematic it should be on certain terms. We should discuss even during this theatre that nonetheless a focus filed on a 31st did not discuss a sold sustenance of law underneath that a office of a Court was invoked, a parties and a probity proceeded on a basement that in propinquity to suits 1023 of 1951 and 134 of 1956 they were applications underneath O. IX, r. 7 of a Civil Procedure Code. So distant as a other move was endangered – O.S. 20 of 1953 – it was positively an focus for environment aside a exclusion of a plaintiff’s fit for default and was filed underneath O. IX, r. 9 These 3 applications were expected of by a common visualisation of a Civil Judge on Aug 23, 1958 and a schooled Civil Judge reason that a story of a illness of a appellant that had been put brazen as affording sufficient reason for not being benefaction in probity on May 29, 1958 was false. For this reason he refused to set aside a sequence dismissing a fit for default of fit 20 of 1953 in that visualisation had already been delivered. In a other dual suits 1023 of 1951 and 134 of 1956 he systematic a instruction for a reservation of judgments to mount and firm Aug 25, 1958 for a smoothness of a judgments.
- The appellant thereupon changed a High Court of Allahabad in rider opposite a sequence inspected opposite a refusal of his focus in fit 134 of 1956 alone and apparently performed a stay of smoothness of a judgment. This focus was expected of by a High Court on Sep 4, 1958 when a following sequence was inspected :
“It is conceded that no ex parte direct has nonetheless been passed. The customarily sequence inspected is that a box shall ensue ex parte opposite a appellant. In perspective of a fact that no direct has nonetheless been passed, a environment aside of a ex parte sequence was not positively necessary.”
- After referring to a preference of this Court in Sangram Singh v. Election Tribunal MANU/SC/0044/1955 : 2SCR1 a schooled Judge combined :
“It follows that, even nonetheless a ex parte sequence had been passed, a applicant could seem and take partial in a box from a theatre during that a ex parte sequence had been passed. The customarily thing he could not explain was to be relegated behind to a aged position as if he had not absented himself on a date fixed. In these circumstances, we think, no division is called for with a sequence of a schooled Civil Judge refusing to set aside a ex parte order. It will be open to a applicant to benefaction himself on a date to that a box now stands shelved and ask a schooled Civil Judge to concede him to attend in a record from that state.
There is therefore no force in this application. It is rejected.”
- We are creation this mislay from a sequence for emphasising a fact that it appears to have been a common box before a High Court that a focus of a appellant in Suit 134 of 1956 was underneath O. IX, r. 7 of a Civil Procedure Code and it was on that basement that a High Court approached a doubt and motionless a rider petition.
- Within 4 days of this sequence of a High Court and apparently behaving in pursuit of a instruction of a schooled Judge a appellant finished an focus to a Civil Judge sketch his courtesy to a observations we have quoted and prayed :
“That your Honour be gratified to hear a focus and take a justification of a applicant.”
- Applications of a same form were filed in a other fit – 1023 of 1951 – also. He liberated a applications for a reason that given a appellant’s ask for being relegated to a strange position had been deserted by him and also by a High Court in revision, it strait be taken to have been finally staid that a appellant could not lead justification given a final conference of a dual suits was over. The customarily move in that a appellant could attend was in conference a visualisation and therefore, he added, “the applicant is now entitled customarily to hear a judgment”. On a same contend – Sep 25, 1958 – a visualisation that had already been prepared was delivered. The visualisation examination :
“Both a suits are dictated with costs ex parte with seductiveness during 6% etc.”
- To set aside this ex parte direct so inspected opposite him on Sep 25, 1958 a suspect filed an focus underneath O. IX, r. 13. Obviously, a significant belligerent on that a use was sought, viz., that there was reasonable or sufficient means for a appellant’s deficiency from Court on May 29, 1958 was a same as had been set out by him in a focus that he had filed on May 31, 1958. This was opposite by a plaintiff who, besides repeating a defence per a law of a illness, lifted 3 certified objections of a rough nature. Some of these have been inspected by a Civil Judge and a High Court nonetheless any one of them was sought to be inspected before us by Mr. Pathak for a respondents. They were : (1) that a anticipating available in a progressing focus filed on May 31, 1958 in fit 134 of 1956 that there was not sufficient means for non-appearance on May 29, 1958 operated as res judicata in a petition filed underneath O. IX, r. 13 and was a bar to a re-inquiry of a same doubt on a merits; (2) a anticipating in a focus to set aside a exclusion for default of fit 20 of 1953 that had spin final operated was a bar to a conference of a same doubt in a focus underneath O. IX, r. 13 in fit 134 of 1956; and (3) that a direct in fit 134 of 1956 was not in existence an ex parte direct nonetheless was a direct on a merits within O. XVII, r. 3, Civil Procedure Code and hence a pill of a appellant was customarily by approach of an seductiveness opposite a direct and he could not come in by approach of an focus underneath O. IX, r. 13. The schooled Civil Judge inspected a initial rough belligerent of conflict and liberated a application. The appellant thereupon filed an seductiveness to a High Court and a schooled Judges serve reason that any exploration into a doubt possibly a appellant had sufficient means for non-appearance on May 29, 1958 was barred by res judicata by reason of a preference of a same matter in a progressing move underneath O. IX, r. 7. It is from this visualisation of a High Court that a benefaction seductiveness has been brought by special leave underneath Art. 136 of a Constitution.
- Before move to understanding with a arguments addressed to us by Mr. Setalvad – schooled warn for a appellant, it would be available to discuss a point, not severely pulpy before us, nonetheless that during progressing stages was suspicion to have substantial highlight for a preference of this doubt viz., a disproportion between a disproportion “good cause” for non-appearance in O. IX, r. 7 and “sufficient cause” for a same purpose in O. IX, r. 13 as indicating to opposite criteria of “goodness” or “sufficiency” for successive in a dual proceedings, and as therefore furnishing a belligerent for a inapplicability of a sequence of res judicata. As this belligerent was not severely mentioned before us, we need not inspect it in any detail, nonetheless we competence observe that we do not see any element disproportion between a contribution to be determined for gratifying a dual tests of “good cause” and “sufficient cause”. We are amateurish to detect of a “good cause” that is not “sufficient” as affording an reason for non-appearance, nor conversely of a “sufficient cause” that is not a good one and we would supplement that possibly of these is not opposite from “good and sufficient cause” that is used in this context in other statutes. If, on a other hand, there is any disproportion between a dual it can customarily be that a requirement of a “good cause” is complied with on a obtuse grade of explanation than that of “sufficient cause” and if so, this can't assistance a appellant, given presumption a qualification of a element of res judicata to a decisions in a dual proceedings, if a probity finds in a initial proceeding, a lighter weight not discharged, it strait a fortiori bar a care of a same matter in a later, where a customary of explanation of that matter is, if anything, higher.
- As it is a initial of a rough objections that we have set out progressing that has shaped a basement of a preference opposite a appellant, both by a schooled Civil Judge as good as by a High Court, we shall initial take that adult for consideration. The courts successive have approached this doubt in this form. Order IX, r. 7 reads :
“7. Where a Court has shelved a conference of a fit ex parte, and a defendant, during or before such hearing, appears and assigns good means for his prior non-appearance, he may, on such terms as a Court leads as to costs, or otherwise, be listened in answer to a fit as if he had seemed on a day firm for his appearance.”
- If an focus is finished underneath this sustenance and a Court considers that there is not any good means for a prior non-appearance and deduction serve with a fit and eventually it formula in an ex parte decree, can a Court in traffic with a focus to set aside a ex parte direct underneath O. IX, r. 13 recur a doubt as to possibly a suspect had a sufficient means for non-appearance on a day in courtesy to that a focus underneath O. IX, r. 7 had been filed ?
- That a doubt of fact that arose in a dual record was matching would not be in doubt. Of course, they were not in unbroken suits so as to make a supplies of s. 11 of a Civil Procedure Code germane in terms. That a range of a element of res judicata is not cramped to what is contained in s. 11 nonetheless is of some-more ubiquitous focus is also not in dispute. Again, res judicata could be as most germane to opposite stages of a same fit as to commentary on issues in opposite suits. In this tie we were referred to what this Court conspicuous in Satyadhyan Ghosal v. Sm. Deorajin Debi MANU/SC/0295/1960 : 3SCR590 where Das Gupta, J. vocalization for a Court voiced himself so :
“The element of res judicata is formed on a need of giving a finality to certified decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it relates as between past lawsuit and destiny litigation. When a matter – possibly on a doubt of fact or on a doubt of law – has been motionless between dual parties in one fit or move and a preference is final, possibly given no seductiveness was taken to a aloft probity or given a seductiveness was dismissed, or no seductiveness lies, conjunction celebration will be certified in a destiny fit or move between a same parties to canvass a matter again………………………. The element of res judicata relates also as between dual stages in a same lawsuit to this border that a court, possibly a conference probity or a aloft probity carrying during an progressing theatre motionless a matter in one approach will not concede a parties to re-agitate a matter again during a unbroken theatre of a same proceedings.”
- Mr. Pathak laid good highlight on this thoroughfare as ancillary him in a dual submissions that he finished : (1) that an emanate of fact or law motionless even in an interlocutory move could work as res judicata in a after proceeding, and (2) that in sequence to attract a element of res judicata a sequence or preference initial rendered and that is pleaded as res judicata need not be able of being appealed against.
- We determine that generally vocalization these propositions are not open to objection. If a probity that rendered a initial preference was efficient to perform a fit or other proceeding, and had therefore competency to confirm a emanate or matter, a business that it is a judiciary of disdainful office or one from whose preference no seductiveness lay would not by themselves disastrous a anticipating on a emanate by it being res judicata in after proceedings. Similarly, as staid already, nonetheless s. 11 of a Civil Procedure Code clearly contemplates a existence of dual suits and a commentary in a initial being res judicata in a after suit, it is timeless that a element underlying it is equally germane to a box of decisions rendered during unbroken stages of a same fit or proceeding. But where a element of res judicata is invoked in a box of a opposite stages of record in a same suit, a inlet of a proceedings, a range of a enquiry that a adjectival law provides for a preference being reached, as good as a specific supplies finished on matters touching such preference are some of a element and germane factors to be deliberate before a element is reason applicable. One aspect of this doubt is that that is dealt with in a sustenance like s. 105 of a Civil Procedure Code that enacts :
“105. (1) Save as differently specifically provided, no seductiveness shall distortion from any sequence finished by a Court in a practice of a strange or appellate jurisdiction; but, where a direct is appealed from, any error, forsake or anomaly in any order, inspiring a preference of a case, competence be set onward as a belligerent of conflict in a chit of appeal.
(2) Notwithstanding anything contained in sub-section (1), where any celebration depressed by an sequence of remand finished after a derivation of this Code from that an seductiveness lies does not seductiveness therefrom, he shall afterward be precluded from encountering a correctness.”
- It was this that was explained by Das Gupta, J. in Satyadhayan Ghosal’s box MANU/SC/0295/1960 : 3SCR590 , already referred to :
“Does this, however, meant that given during an progressing theatre of a lawsuit a probity has motionless an interlocutory matter in one approach and no seductiveness has been taken therefrom or no seductiveness did lie, a aloft probity can't during a after theatre of a same lawsuit cruise a matter again ?………… It is transparent therefore that an interlocutory sequence that had not been appealed from possibly given no seductiveness lay or even nonetheless an seductiveness lay an seductiveness was not taken could be challenged in an seductiveness from a final direct or order.”
- If a exactness of a sequence of a Civil Judge in disposing of a focus filed by a appellant on May 31, 1958 were questioned in an seductiveness opposite a direct in a suit, these beliefs and a observations would have clear relevance. But it is not as if a eminence here drawn between a form of interlocutory orders that achieve finality and those that do not, is of no materiality in deliberation possibly a sold interlocutory sequence is of a kind that would obviate a restlessness of a same doubt before a same probity in serve stages of a same proceeding. Dealing with a decisions of a Privy Council in Ram Kirpal Shukul v. Rup Kuari 11 I.A. 37., Bani Ram Nanhu Mal (11 I.A. 181), and Hook v. Administrator-General of Bengal 48 I.A. 187 that are a heading cases in that a element of res judicata was reason germane to opposite stages of a same proceedings, Das Gupta J. celebrated MANU/SC/0295/1960 : 3SCR590 :
“It will be beheld that in all these 3 cases, viz., Ram Kirpal Shukul’s case, Bani Ram’s box and Hook’s case, a prior preference that was found to be res judicata was partial of a decree. Therefore nonetheless in form a after move in that a doubt was sought to be lifted again was a check of a prior proceeding, it was in substance, an eccentric unbroken proceeding. The preference of a brawl as regards execution it is frequency compulsory to discuss was a direct underneath a Code of Civil Procedure and so in Ram Kirpal’s box and Bani Ram’s case, such a preference being a direct unequivocally consummated a prior proceedings. The fact therefore that a Privy Council in Ram Kirpal Shukul’s box described Mr. Probyn’s sequence as an ‘interlocutory judgment’ does not transparent a schooled counsel’s row that all kinds of interlocutory judgments not appealed from spin res judicata, Interlocutory judgments that have a force of a direct strait be renowned from other interlocutory judgments that are a step towards a preference of a brawl between parties by approach of a direct or a final order.”
- It is nonessential to indicate out that interlocutory orders are of several kinds; some like orders of stay, explain or receiver are designed to safety a standing quo tentative a lawsuit and to safeguard that a parties competence not be biased by a normal check that a record before a probity customarily take. They do not, in that sense, confirm in any demeanour a merits of a debate in emanate in a fit and do not, of course, put an finish to it even in part. Such orders are positively able of being altered or sundry by unbroken applications for a same relief, nonetheless routinely customarily on explanation of new contribution or new situations that subsequently emerge. As they do not strike on a certified rights of parties to a lawsuit a element of res judicata does not request to a commentary on that these orders are based, nonetheless if applications were finished for use on a same basement after a same has once been expected of a probity would be fit in rejecting a same as an abuse of a routine of court. There are other orders that are also interlocutory, nonetheless would tumble into a opposite category. The disproportion from a ones usually now referred to lies in a fact that they are not destined to progressing a standing quo or to safety a skill tentative a final adjudication, nonetheless are designed to safeguard a just, smooth, nurse and swift ordering of a suit. They are interlocutory in a clarity that they do not confirm any matter in emanate outset in a suit, nor put an finish to a litigation. The box of an focus underneath O. IX. r. 7 would be an painting of this type. If an focus finished underneath a supplies of that sequence is liberated and an seductiveness were filed opposite a direct in a fit in that such focus were made, there can be no doubt that a appropriateness of a sequence rejecting a reopening of a move and a refusal to banish a celebration to an progressing theatre competence be canvassed in a seductiveness and dealt with by a appellate court. In that sense, a refusal of a probity to assent a suspect to “set a time back” does not achieve finality. But what we are endangered with is somewhat opposite and that is possibly a same Court is finally firm by that sequence during after stages, so as to obviate a being reconsidered. Even if a sequence of res judicata does not request it would not follow that on each unbroken day on that a fit stands shelved for serve conference a petition could be steady and uninformed orders sought on a basement of matching facts. The element that steady applications formed on a same contribution and seeking a same reliefs competence be disallowed by a probity does not however indispensably rest on a element or res judicata. Thus if an focus for a demurral of a fit is rejected, a unbroken focus for a same purpose even if formed on a same facts, is not barred on a focus of any sequence of res judicata, nonetheless would be deserted for a same drift on that a strange focus was refused. The element underlying a eminence between a sequence of res judicata and a rejecting on a belligerent that no new contribution have been adduced to transparent a opposite sequence is vital. If a element of res judicata is germane to a preference on a sold emanate of fact, even if uninformed contribution were placed before a Court, a bar would continue to work and obviate a uninformed examination of a issue, since in a other case, on explanation of uninformed facts, a probity would be competent, and would be firm to take those into comment and make an sequence conformably to a contribution creatively brought before a court.
- This leads us to a care of a inlet of a court’s instruction underneath O. IX, r. 7 a inlet of that interlocutory proceeding-with a perspective to discern possibly a preference of a Court underneath that sustenance decides anything finally so as to consecrate a bar of res judicata when traffic with an focus underneath O. IX, r. 13, Civil Procedure Code. To sum adult a germane facts, it is common belligerent that a fit – 134 of 1956 had inspected a stages adult to r. 5 of O. IX. Order IX, r. 6 relates to a box where a plaintiff appears and a suspect does not seem when a fit is called on for hearing. Order IX, sequence 6 provides, to quote a element partial :
“Where a plaintiff appears and a suspect does not seem when a fit is called on for conference afterwards –
(a) if it is valid that a summons was duly served, a probity competence ensue ex parte; ……………………”
- This is a sustenance underneath that a Civil Judge ostensible to act on a 29th of May. And afterwards comes O. IX, r. 7 that reads :
“Where a Court has shelved a conference of a fit ex parte and a defendant, during or before such hearing, appears and assigns good means for his prior non-appearance, he may, on such terms as a Court leads as to costs or otherwise, be listened in answer to a fit as if he had seemed on a day firm for his appearance.
- On that unequivocally date a probity took justification of a plaintiff and indifferent judgment. In other words, a conference had been finished and a customarily partial of a box that remained afterward was a pronouncing of a judgment. O. XX, r. 1 provides for this strait and it reads :-
“The Court, after a box has been heard, shall pronounce visualisation in open Court, possibly during once or, as shortly afterward as competence be practicable, on some destiny day; and when a visualisation is to be conspicuous on some destiny day, a Court shall repair a day for that purpose, of that due notice shall be given to a parties or their pleaders.
- Two days after a conference was finished and visualisation was indifferent a suspect seemed and finished a focus purporting to be underneath O. IX, r. 7. And it is a exclusion of this focus that has been reason to consecrate a bar to a conference of a focus underneath O. IX, r. 13 on a merits.
- The range of a move underneath O. IX, r. 7 and a place in a intrigue of a supplies of a Code relating to a conference of suits was a theme of care in Sangram Singh v. Election Tribunal MANU/SC/0044/1955 : 2SCR1 . Dealing with a definition of a disproportion “The Court competence ensue ex parte” in O. IX, r. 6(1)(a) Bose J. vocalization for a Court conspicuous :
“When a suspect has been served and has been afforded an event of appearing, then, if he does not appear, a Court competence ensue in his absence. But, be it noted, a Court is not destined to make an ex parte order. Of march a fact that it is move ex parte will be available in a mins of a record nonetheless that is merely a matter of a fact and is not an sequence finished opposite a suspect in a clarity of an ex parte direct or other ex parte sequence that a probity is certified to make. All that sequence 6(1)(a) does is to mislay a bar and no more. It merely authorises a Court to do that that it could not have finished yet this authority, namely to ensue in a deficiency of one of a parties.”
- Dealing unbroken with a intrigue of a Code, a schooled Judge forked out that a demeanour in that a Court could afterward ensue i.e., after r. 6(1)(a) was inspected would count on a purpose for that a fit stood adjourned, and proceeded :
“If it is for final hearing, an ex parte direct can be passed, and if it is passed, afterwards O. IX, r. 13 comes into play and before a direct is set aside a Court is compulsory to make an sequence to set it aside. Contrast this with r. 7 that does not need a environment aside of what is commonly, nonetheless erroneously, famous as ‘the ex parte order’. No sequence is contemplated by a Code and therefore no sequence to set aside a sequence is contemplated either.” (italics ours)
- And referring to a outcome of a rejecting of focus finished underneath O. XI, r. 7, he combined :
“If a celebration does seem on a day to that a conference of a fit is adjourned, he can't be stopped from participating in a record simply given he did not seem on a initial or some other hearing. But nonetheless he has a right to seem during an shelved hearing, he has no right to set behind a hands of a clock. Order IX. r. 7 creates that clear. Therefore, unless he can uncover good cause, he strait accept all that has left before and be calm to ensue from a theatre during that he comes in.”
- That being a outcome of a proceedings, a doubt unbroken arises what is a inlet of a sequence if it can be called an sequence or a inlet of a adjudication that a probity creates underneath O. IX, r. 7. In a hint it is destined to safeguard a nurse control of a record by penalising crude dilatoriness distributed merely to lengthen a litigation. It does not put an finish to a lawsuit nor does it engage a integrity of any emanate in debate in a suit. Besides, it is apparent that a move is of a unequivocally outline inlet and this is clear from a fact that as contrasted with O. IX, r. 9 or O. IX, r. 13, no seductiveness is supposing opposite movement of a probity underneath O. IX, r. 7. “refusing to set behind a clock”. It is, therefore, perceptible that a Code deduction on a perspective of not imparting any finality to a integrity of any issues of fact on that a court’s movement underneath that sustenance is based. In this tie anxiety competence be finished to a preference of a Division Bench of a Madras High Court in Sankaralinga v. Ratnasabhapati I.L.R. 21 Mad. 324. The doubt arose on an seductiveness to a High Court by a defendants opposite whom an ex parte direct had been inspected on Mar 30, 1895. Previous thereto they had put in petitions inspected by affidavits underneath s. 101 of a Civil Procedure Code of 1882 analogous of O. IX, r. 7. to set aside “an ex parte order,” accept their created statements, and ensue with a fit on a merits. The belligerent ostensible for a use sought was that they were not duly served with summons. This focus was deserted by a Court. Thereafter, after an ex parte direct was passed, they again filed another focus underneath s. 108 underneath a afterwards code, analogous to a benefaction O. IX, r. 13. The belligerent put brazen was again a same, namely that a summons was not scrupulously served. The district Judge carrying liberated a focus underneath s. 108 (O. IX, r. 13), a defendants elite an seductiveness to a High Court. On interest of a plaintiffs-respondents a row was lifted by Mr. Bhashyam Ayyangar-learned Counsel-that a focus to set aside a ex parte direct underneath s. 108 was amateurish given a same doubt has already been motionless opposite a suspect when he filed a focus underneath s. 101. The Court stoical of Subramania Iyer Benson JJ. said, “the row during initial steer competence seem to be reasonable, nonetheless carrying courtesy to a unequivocally far-reaching disproportion ‘in any case’ used in s. 108 we are amateurish to reason that a suspect was not entitled to make an focus underneath territory 108. ” There have been other decisions in that a matching perspective has been reason and nonetheless a supplies of a Code analogous to O. IX, r. 7 and O. IX, r. 13 have been in force for over a century from 1859, there has not been a singular box in that a defence of res judicata such as has been urged in a seductiveness before us has been upheld. On a other hand, we competence indicate out that an accurately matching conflict of res judicata was specifically lifted and detered in Bhaoo Patel v. Naroo 10 C.P.L.R. 45 in a preference rendered in 1896 in that faith was placed on a box reported in 8 Cal. 272.
- In a resources we cruise that a preference or instruction in an interlocutory move of a form supposing for by O. IX, r. 7, is not of a kind that can work as res judicata so as to bar a conference on a merits of an focus underneath O. IX, r. 13. The latter is a specific orthodox pill supposing by a Code for a environment aside of ex parte decrees, and it is not yet highlight that underneath O. XLIII, r. 1(d) an seductiveness lies not opposite orders environment aside a direct inspected ex parte nonetheless opposite orders rejecting such an application, certainly indicating to a process of a Code being that theme to securing due industry on a partial of a parties to a suit, a Code as distant as probable creates sustenance for decisions in suits after a conference afforded to a parties.
- So distant as a box before us is endangered a sequence underneath seductiveness can't be postulated even on a basement that a anticipating available in disposing of an focus underneath O. IX, r. 7 would work as res judicata when a same doubt of fact is lifted in a unbroken focus to set aside an ex parte direct underneath O. IX, r. 13. This is given it is not doubtful that in sequence to work as res judicata, a probity traffic with a initial matter strait have had office and competency to perform and confirm a issue. Adverting to a contribution of a benefaction appeal, this would essentially spin on a scold construction of a terms of O. IX, r. 7. The opening disproportion of that sequence are, as already seen, ‘Where a Court has shelved a conference of a fit ex parte’. Now, what do these disproportion meant ? Obviously they assume that there is to be “a hearing” on a date to that a fit stands adjourned. If a entirety of a “hearing” of a fit has been finished and a Court being efficient to pronounce visualisation afterwards and there, adjourns a fit merely for a purpose of pronouncing visualisation underneath O. XX, r. 1, there is clearly no demurral of “the hearing” of a suit, for there is zero some-more to be listened in a suit. It was precisely this thought that was voiced by a schooled Civil Judge when he staid that carrying courtesy to a theatre that a fit had reached a customarily move in that a appellant could attend was to bear a visualisation conspicuous and that on a terms of manners 6 7 he would assent him to do that. If, therefore, a conference was finished and a fit was not “adjourned for hearing”, O. IX, r. 7 could have no focus and a matter would mount during a theatre of O. IX, r. 6 to be followed adult by a flitting of an ex parte direct creation r. 13 a customarily sustenance in sequence IX applicable. If this were a scold position, it would automatically follow that a schooled Civil Judge would have no office to perform a focus antiquated May 31, 1958 purporting to be underneath O. IX, r. 7, or pass any sequence thereon on a merits. This in a spin would lead to a outcome that a focus underneath O. IX, r. 13 was not customarily efficient nonetheless had to be listened on a merits yet anxiety to a commentary contained in a prior order.
- Mr. Pathak while not encountering that if a focus filed on May 31, 1958 was amateurish during a theatre it was filed, a sequence inspected by a Civil Judge would not bar a care on a merits of a after focus to set aside a ex parte decree, sought to get over this apparent conditions by a acquiescence that even if O. IX, r. 7 was impossible a probity had an fundamental office saved by s. 151 C.P. Code to perform a focus outward a specific orthodox sustenance and that it strait be taken that a appellant invoked that office and that Court being so efficient to extend or exclude a use followed a latter choice in a resources of a box and that hence a record before a Court were not amateurish and that a sequence inspected on a focus antiquated May 31, 1958 was therefore with jurisdiction.
- On this submission, that we competence discuss has been urged for a initial time in this court, a initial doubt that arises is possibly a Court has a fundamental office that schooled warn contends that it has. For a purpose of a contention of a doubt in a context of a germane supplies of a Code, it is nonessential to embark on any minute or downright conference of a resources and situations in that it could be predicated that a Court has a fundamental office that is saved by s. 151 of a Civil Procedure Code. It is sufficient if we ensue on a ostensible and certified stipulations to a existence of such a jurisdiction. It is common belligerent that a fundamental energy of a Court can't overrule a demonstrate supplies of a law. In other words, if there are specific supplies of a Code traffic with a sold theme and they specifically or by compulsory import empty a range of a powers of a Court or a office that competence be exercised in propinquity to a matter a fundamental energy of a Court can't be invoked in sequence to cut opposite a powers conferred by a Code. The breach contained in a Code need not be demonstrate nonetheless competence be pragmatic or be substantial from a unequivocally inlet of a supplies that it creates for covering a contingencies to that it relates. We shall obstruct a courtesy to a theme on hand, namely applications by defendants to set aside ex parte orders inspected opposite them and free a record that had been conducted in their absence. Order IX, r. 1 requires a parties to attend on a day firm for their coming to answer a explain of a defendant. Rule 2 deals with a box where a suspect is absent nonetheless a Court from a possess record is familiar of a fact that a summons has not been duly served on a suspect in sequence to familiarise him with a record before a Court. Rule 2 contains a portion germane to cases where notwithstanding a deficiency of use of summons, a suspect appears. Rule 3 deals with a box where a plaintiff alongwith a suspect is absent when a fit is called on and empowers a Court to boot a suit. Rule 5 deals with a box where a suspect is not served scrupulously and there is default on a partial of a plaintiff in carrying this done. Having so tired a cases where a suspect is not scrupulously served, r. 6(1)(a) enables a Court to ensue ex parte where a suspect is absent even after due service. Rule 6 contemplates dual cases : (1) The day on that a suspect fails to seem is one of that a suspect has no sign that a fit will be taken adult for final conference for example, where a conference is customarily a initial conference of a suit, and (2) where a theatre of a initial conference is inspected and a conference that is firm is for a ordering of a fit and a suspect is not benefaction on such a day. The outcome of move ex parte in a dual sets of cases would apparently meant a good disproportion in a result. So distant as a initial form of cases is endangered it has to be shelved for final ordering and, as already seen, it would be open to a suspect to seem on that date and urge a suit. In a second form of cases, however, one of dual things competence happen. The justification of a plaintiff competence be taken afterwards and there and visualisation competence be pronounced. In that box O. IX, r. 13 would come in. The suspect can, besides filing an seductiveness or an focus for review, have chance to an focus underneath O. IX, r. 13 to set aside a ex parte decree. The entirety of a justification of a plaintiff competence not be resolved on a conference day on that a suspect is absent and something competence sojourn so distant as a conference of a fit is endangered for that purpose there competence be a conference on an shelved date. On a terms of O. IX, r. 7 if a suspect appears on such shelved date and satisfies a Court by display good means for his non-appearance on a prior day or days he competence have a progressing record removed – “set a time back” and have a fit listened in his presence. On a other hand, he competence destroy in display good cause. EVen in such a box he is not penalised in a clarity of being banned to take partial in a serve record of a fit or whatever competence still sojourn of a trial, customarily he can't explain to be relegated to a position that he assigned during a derivation of a trial. Thus each strait that is expected to occur in a conference vis-a-vis a non-appearance of a suspect during a conference of a fit has been supposing for and O. IX, r. 7 and O. IX, r. 13 between them empty a whole progression of situations that competence arise during a march of a trial. If, thus, sustenance has been finished for each contingency, it stands to reason that there is no range for a bid of a fundamental powers of a Court to make an sequence compulsory for a ends of justice. Mr. Pathak however, heartily contended that a box of a arrange now on palm where a suspect seemed after a end of a conference nonetheless before a pronouncing of a visualisation had not been supposing for. We cruise that a idea that there is such a theatre is, on a intrigue of a Code, unconditionally unrealistic. In a benefaction context when once a conference starts, a Code contemplates customarily dual stages in a conference of a fit : (1) Where a conference is shelved or (2) where a conference is completed. Where a conference is finished a parties have no serve rights or privileges in a matter and it is customarily for a preference of a Court that O. XX, r. 1 permits visualisation to be delivered after an interlude after a conference is completed. It would, therefore, follow that after a theatre contemplated by O. IX, r. 7 is inspected a unbroken theatre is customarily a flitting of a direct that on a terms of O. IX, r. 6 a Court is efficient to pass. And afterwards follows a pill of a celebration to have that direct set aside by focus underneath O. IX, r. 13. There is so no interregnum between a dual stages of reservation of visualisation and pronouncing a visualisation so as to make it compulsory for a Court to means to a celebration a pill of removing orders inspected on a lines of O. IX, r. 7. We are, therefore, of a opinion that a Civil Judge was not efficient to perform a focus antiquated May 31, 1958 purporting to be underneath O. IX, r. 7 and that hence a reasons given in a sequence inspected would not be res judicata to bar a conference of a petition underneath O. IX, r. 13 filed by a appellant.
- There is one other aspect from that a same doubt could be viewed. O. IX, r. 7 prescribed a conditions theme to that alone an focus efficient underneath a opening disproportion of that sequence ought to be dealt with. Now, a acquiescence of Mr. Pathak if accepted, would meant to omit a opening disproportion and contend that nonetheless specific energy is endangered when a fit is shelved for hearing, a Court has an fundamental energy even when (a) it is not shelved for that purpose, and (b) and this is of some importance, when a fit is not shelved during all, carrying courtesy to a terms of O. XX, r. 1. The categorical partial of O. IX, r. 7 speaks “of good means being shown for non-appearance” on a prior day. Now, what are a criteria to be practical by a Court when a ostensible fundamental office of a Court is invoked. Non-constant it need not be matching with what is statutorily supposing in r. 7. All this customarily shows that there is unequivocally no range for invoking a fundamental powers of a Court. Lastly, that energy is to be exercised to secure a needs of justice. If during a theatre of r. 7 energy is vested in a Court and after a direct is inspected O. IX, r. 13 becomes germane and a celebration can relief himself of that remedy, it is unequivocally formidable to conclude a ends of probity that are ostensible to be served by a Court being reason to have a energy that a schooled warn says strait entail in it. In this perspective it is nonessential to cruise possibly to means a benefaction acquiescence a respondent strait settle that a probity was unwavering that it lacked specific orthodox energy and dictated to practice an fundamental energy that it believed it hexed to make such orders as competence be compulsory for a ends of justice.
- It was unbroken urged that even if a focus underneath O. IX, r. 7 in honour of fit 134 of 1956 was amateurish carrying courtesy to a theatre that a conference of that fit reached when that focus was made, still a sequence inspected in fit 20 of 1953 in a focus finished for a replacement of that fit underneath O. IX, r. 9 was efficient and that a sequence inspected on that focus operated as res judicata to a maintain-ability of a focus underneath O. IX, r. 13 in honour of fit 134