1963 (12) TMI 27 - SC - Indian Laws

Ex Parte Decree Challenge: Res Judicata Not Applicable, Case Remanded for Fresh Examination Under Order IX, Rule 13

ARJUN SINGH Versus MOHINDRA KUMAR

HC analyzed an ex parte decree challenge under CPC Order IX, Rule 13. The court held that res judicata does not bar subsequent applications to set aside ... - The core legal questions considered in this judgment revolve around the procedural aspects of setting aside an ex parte decree under the Civil Procedure Code, specifically: (1) Whether the dismissal of an application under Order IX, Rule 7 (O. IX, r. 7) for setting aside an ex parte adjournment order operates as res judicata and bars a subsequent application under Order IX, Rule 13 (O. IX, r. 13) to set aside the ex parte decree itself; (2) The nature and scope of the interlocutory order under O. IX, r. 7 and whether it can have finality sufficient to invoke res judicata; (3) Whether the court had jurisdiction to entertain the application under O. IX, r. 7 after the hearing of the suit was complete and judgment reserved; (4) Whether the inherent powers of the court under Section 151 CPC can be invoked to entertain an application akin to O. IX, r. 7 when the statutory provisions do not expressly provide for such a stage; (5) Whether an order passed in a different suit, though tried jointly, can operate as res judicata in the suit in question; and (6) Whether the decree passed was truly ex parte or a decree on merits under Order XVII, Rule 3 (O. XVII, r. 3). These issues were considered in the context of three related suits, with particular focus on Suit 134 of 1956.Regarding the first issue on res judicata, the Court examined the legal framework of res judicata as embodied in Section 11 CPC and its broader application beyond successive suits to different stages of the same suit. The Court referenced the authoritative precedent which holds that once a matter has been finally decided, it cannot be re-agitated in subsequent proceedings between the same parties. However, the Court emphasized that the applicability of res judicata depends on the nature of the earlier decision, the scope of the enquiry, and whether the earlier decision was final. The Court noted that interlocutory orders, such as those under O. IX, r. 7, which do not decide any substantive issue or put an end to the litigation, generally lack the finality required to operate as res judicata. The Court distinguished interlocutory orders that preserve status quo or regulate procedure from interlocutory judgments that form part of a decree, which may have res judicata effect.On the second issue, the Court analyzed the nature of an order under O. IX, r. 7, which permits the court to hear a defendant who appears at or before the adjourned hearing and assigns good cause for prior non-appearance. The Court held that this provision is designed to ensure orderly conduct of proceedings and penalize dilatory tactics, but does not decide any substantive issue or terminate the suit. The Court highlighted that no appeal lies against an order under O. IX, r. 7, reflecting its interlocutory and non-final character. The Court cited prior decisions explaining that such an order does not amount to an ex parte decree or final adjudication, and refusal under O. IX, r. 7 does not preclude the defendant from participating in subsequent proceedings, only that the defendant cannot set back the clock to the original stage of the suit.On the third issue, the Court considered whether the application under O. IX, r. 7 filed after the hearing was complete and judgment reserved was competent. The Court interpreted the language of O. IX, r. 7, which applies only where the court has adjourned the hearing of the suit ex parte. Since the hearing had been completed and only judgment remained to be pronounced, the Court concluded that the hearing was not adjourned for hearing purposes, and thus O. IX, r. 7 did not apply. Consequently, the court lacked jurisdiction to entertain the application under that rule at that stage. This reasoning led to the conclusion that the earlier order dismissing the application under O. IX, r. 7 could not operate as res judicata to bar the subsequent application under O. IX, r. 13 to set aside the ex parte decree.On the fourth issue, the Court addressed the submission that the court could invoke its inherent jurisdiction under Section 151 CPC to entertain an application similar to O. IX, r. 7 even when the statutory provisions do not expressly provide for such a stage. The Court rejected this argument, holding that inherent powers cannot override or cut across express statutory provisions, especially where the Code exhaustively provides remedies for all contingencies relating to non-appearance of parties. The Court reasoned that once the hearing is complete, the only remedy is under O. IX, r. 13 to set aside the ex parte decree, and there is no statutory or inherent jurisdiction to entertain an O. IX, r. 7 type application post-hearing. The Court further emphasized that the Code's scheme contemplates only two stages after hearing starts: adjournment for hearing or completion of hearing, with no intermediate stage for such applications.Regarding the fifth issue, the Court rejected the contention that an order passed in suit 20 of 1953 (dismissed for default and subsequently restored) could operate as res judicata in suit 134 of 1956 merely because the suits were ordered to be tried jointly. The Court explained that joint trial for evidence does not merge the suits into one and does not mean that procedural orders in one suit bind the others. Each suit remains independent for procedural and substantive purposes, and applications must be considered on their own merits within each suit. Moreover, the issue in the application under O. IX, r. 9 in suit 20 of 1953 was distinct from the issue in suit 134 of 1956 under O. IX, r. 7 or r. 13, further negating the applicability of res judicata.On the sixth issue, the Court examined whether the decree passed in suit 134 of 1956 was truly ex parte or a decree on merits under O. XVII, r. 3. The Court found the submission that it was a decree on merits to be without substance. The Court noted that the parties and courts throughout treated the decree as ex parte, and the order sheet explicitly recorded that the case proceeded ex parte due to the defendant's absence and lack of instructions to counsel. The Court further observed that the conditions of O. XVII, r. 3, which permits the court to decide a suit forthwith where a party fails to produce evidence or perform necessary acts after time granted, were not satisfied because the adjournment was by joint application of the parties and not solely at the defendant's instance. Thus, the decree was correctly characterized as ex parte under O. XVII, r. 2.In conclusion, the Court held that the dismissal of the application under O. IX, r. 7 could not operate as res judicata to bar the subsequent application under O. IX, r. 13 to set aside the ex parte decree. The Court found that the application under O. IX, r. 7 was incompetent at the stage it was filed since the hearing was complete and judgment reserved, so the court lacked jurisdiction to entertain it. The inherent jurisdiction of the court could not be invoked to cure this defect. The Court also rejected the argument that orders in other suits tried jointly could operate as res judicata in the suit in question. Finally, the Court affirmed that the decree was ex parte and not a decree on merits. Accordingly, the appeal was allowed, and the matter was remanded to the trial court for disposal of the application under O. IX, r. 13 on merits.Significant holdings include the following verbatim excerpts capturing the core legal reasoning and principles:'The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again... The principle of res judicata applies also as between two stages in the same litigation to this extent that a court... having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.''Order IX, r. 7... is directed to ensure the orderly conduct of the proceedings by penalising improper dilatoriness calculated merely to prolong the litigation. It does not put an end to the litigation nor does it involve the determination of any issue in controversy in the suit.''If the entirety of the 'hearing' of a suit has been completed and the Court... adjourns the suit merely for the purpose of pronouncing judgment... there is clearly no adjournment of 'the hearing' of the suit, for there is nothing more to be heard in the suit.''The inherent power of the Court cannot override the express provisions of the law... If there are specific provisions of the Code dealing with a particular topic... the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code.''The suits were... ordered to be tried jointly... but that affords no basis for the contention that every application made in one suit... must be treated as an application made in every other suit... so far as regards the ex parte orders in the three suits each had to be considered independently.''The decree was passed ex parte as had been expressly stated by the learned Civil Judge when he passed that decree... the terms of O. XVII, r. 3 were not attracted at all.'The Court's final determinations were: (1) The order dismissing the O. IX, r. 7 application does not operate as res judicata to bar the O. IX, r. 13 application; (2) The application under O. IX, r. 7 was incompetent after hearing was complete and judgment reserved; (3) The inherent jurisdiction under Section 151 CPC cannot be invoked to entertain such an application outside statutory provisions; (4) Orders in other jointly tried suits do not bind the suit in question for purposes of res judicata; (5) The decree was ex parte and not a decree on merits; and (6) The ex parte decree must be reconsidered on merits under O. IX, r. 13, and the appeal was allowed accordingly.