TaxTMI 
TaxTMI 
1957 (10) TMI 41
X X X X Extracts X X X X
X X X X Extracts X X X X
....instituted the present suit O. S. No. 598/1950, in the Attingal Munsiffs Court for recovery of the amount due to him under the decree of the Jaffna Court, as evidenced by Ext'. A. In resisting the suit the defendants contended that they were not residing within the jurisdiction of the Jaffna Court when the plaintiff obtained the decree Ext. A against them, that the decree happened to be passed as a result of the fraud practised by the plaintiff and that the suit based on such a decree passed by a foreign Court cannot be made the basis of any claim against the defendants in the present suit. The trial Court repelled all these contentions and definitely found that the defendants were residing within the jurisdiction of the Jaffna Court at the time of the passing of the decree Ext. A and that the plaintiff had not been guilty of any fraud in obtaining that decree. It was further found that the decree Ext. A must be deemed to be a decree passed on the merits of the plaintiff's claim and that therefore the present suit based on that decree is maintainable. Accordingly, a decree was passed in favour of the plaintiff. The 2nd defendant took the matter in appeal before the Triva....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by Cl. (b) of Section 13 of the i.e., of Civil Procedure. In Janno Hassan v. Mohammed ohuthu AIR 1925 Mad 155 (A) and in Nagoor Meera v. Mahadu Meera AIR 1926 Mad 259 (B), it was ruled that in a case in which there is no appearance at all for the defendant and a decree is passed ex parte, it must be deemed that the decree was passed on the merits. In the-first of these cases an apparently contrary, view taken by the Privy Council in Keymer v. Viswanatham Reddi AIR 1916 PC 21 (C), was noticed but the scope of that decision was explained to be limited to cases where a defence had been raised and a decree was passed? without, for some reason or other, adjudicating upon such defence. The foreign judgment which the Privy Council had to consider was one passed under the following circumstances. A suit for money was brougnt in an English Court against the defendant as partner of certain firm. He denied that be was a partner and also that any money was due from him. Thereupon he was served with certain interrogatories to be answered. On his omission to answer them, his defence was struck off and judgment entered for the plaintiff. On the basis of that judgment passed by the English C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h the question of the possibility of the Court giving a judgment on the merits of the case where the defendant fails to appear. The question referred to the Full Bench related to a case where the defendant had failed to appear and judgment was given merely on the strength of the plaint allegations and without any trial on evidence. In answering the question in the negative, the learned Judges were careful to emphasise both the aspects of such a decree viz., the default of appearance of the defendant and also the absence of any trial on evidence. Krishnan, J. who was a party to that decision, further clarified the matter by pointing out the possible distinction "between a case in which a decree is given without any trial whatever and a decree in a case in which, even though the defendant did not appear, the matter was tried in full on evidence and the plaintiff proved his case". His view was in favour of the position that the latter class of cases could be said to have been decided on the merits and thus falling outside the ambit of Sub-section (b) of Section 13. The decisive factor was taken to be that the judgment must be based on evidence in order that the decision may be said....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ver a defence, must be regarded as a judgment passed on the merits of the case when the proceedings had been strictly in accordance with the rules of the Supreme Court." It was also pointed out that the words "judgment on the merits" have been used in S. 13 of the Code of Civil Procedure in contradistinction to a decision on a matter of form or by way of penalty and a case must be taken to have been decided on the merits where the defendant had ample opportunity to raise a defence and voluntarily refrained from raising such a defence and the judgment was passed ex parte. In Ishri Prasad v. Shri Ram (H), also the view taken was that the expression 'judgment on the merits' is used in Section 13 of the Code of Civil Procedure in contradistinction to a judgment by way of penalty. The same view was taken in AIR 1925 Mad 155 (A), and in Mohammad Kunju v. Abdul Kassim Lebba 1943 Trav LR 276 (I). In the second of these cases it was held that the question whether a foreign judgment was given on the merits would depend upon the procedure adopted by the foreign Court and that the conduct of the defendant in not denying the claim should be taken as a implied admission of the clai....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... way or the other. That appears to be the red-son why Section 13 does not refer to ex parte judgments falling under a separate category by themselves. A foreign Court may have its own special procedure enabling it to give a decision against the defendant who has failed to appear in spite of the summons served on him and in favour of the plaintiff, even without insisting on any evidence in support of his claim in the suit. Such a judgment may be conclusive between the parties so far as that jurisdiction is concerned, but for the purpose of Section 13 of the Indian Civil Procedure Code such a judgment cannot be accepted as one given on the merits oGBP the case, and to that extent the law in India is different from the law in other jurisdictions where foreign judgments given for default of appearance of defendants are also accepted as final and conclusive between the parties thereto. This position was noticed and recognised in AIR 1927 Mad 265 (D). The contention that the defendant who had chosen to remain ex parte, must be taken to have admitted the plaint claim was also repelled in that case as unsound and untenable. His non-appearance can only mean that he is not inclined to com....
X X X X Extracts X X X X
X X X X Extracts X X X X
....speak of a judgment on the merits, passed by that Court. Ext. V has been put forward as copy of the judgment of that Court in the particular case. But the decision as embodied in that document is in no way different from the decree as embodied in Ext. A. The decision recorded in Ext. V is under the heading "Decree in default of appearance of the defendant" thereby indicating that there has been only a decree but no judgment. There has not even been a formal consideration of the truth or otherwise of the plaintiffs' claim obviously for the reason that no evidence whatever had been adduced in proof of that claim. What is disclosed by Exts. A and V is that the Court merely noted the absence of the defendant on whom summons had been served, and then straightway decreed the claim against the defendants. It is seen from Ext. V that the process-server had sworn an affidavit to show that the summons had been duly served on the defendant. The plaintiff also filed an affidavit in proof of the service of summons on the defendant. Ext. B contains copies of these two affidavits and of the report of the process-server. Nothing else was proved in the case by the plaintiff. Ext. C is cop....