Summary
There were three suits in two of which the appellant was defendant and in the other the plaintiff. One of the three was the main suit (in which appellant was a defendant and the others were connected suits. They were ordered to be consolidated for the purpose of hearing and a day was fixed for pronouncing judgment. The appellant did not appear and ex parte orders were passed against him. He filed application (purporting to be under Or. IX , r. 7 Code of Civil Procedure) for setting aside the ex parte orders which were rejected. Thereupon he filed revision application before the High Court which applications were rejected.
Within a short time he applied to the trial court for taking evidence and proceeding with the case. This application was rejected. Thereafter he filed again another application (under Or. IX, r. 13. Code of Civil Procedure) for setting aside the ex parte order alleging the same facts and reasons as before. The, respondents raised the bar of res judicata which was accepted by the Court. On the rejection of his application he appealed to the High Court. The 947High Court also dismissed the appeal on the ground of resjudicata. The present appeal is by special leave granted by this Court. The same plea was raised before this Court and the contentions of the parties were centered on the interpretation and application of Order IX, rr. 7, 9 and 13 of the Code of Civil Procedure, 1908.Held: (i) There is no material difference between the facts to be established for satisfying the two tests of "good cause" under Or. IX, r. 3 for non appearance and "sufficient cause" under Or. IX, r. 13.(ii) The scope of the principle of res judicata is not confined to what is contained in s. 11 but is of more general application. Res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits.Satyadhyan Ghosal v. Sm. Deorajin Debi, [1960] 3 S.C.R.590, referred to.(iii) Where the principle of resjudicata is invoked in the case of the different stages of proceedings in the same suit the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached as well as the specific provision made on matters touching such decisions are some of the factors to be considered before the principle is held to be applicable.(iv)Or. IX, r. 7 does not put an- end to the litigation nor does it involve the determination of any issues in controversy in the suit. A decision or direction in an interlocutory proceeding of the type provided for by Or.IX, r. 7 is not of the kind which can operate as resjudicata so as to bar the hearing on the, merits of an application under Or. IX, r. 13.Sankaralinga v. Ratnasabhapati, 21 Mad. 324 and Bhaoo Patel v. Naroo, 10 C.L.R. 45, referred to.(v)For the operation of res judicata the Court dealing with the first matter must have had jurisdiction and competency to entertain and decide the issue. It the entirety of the"hearing" of a suit has been completed and the court being competent to pronounce judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment (as it was done in the present case) there is no adjournment for hearing and Or. IX, r. 7 could have no application and the matter would stand at the stage of Or. IX, r. 6 to be followed up by passing of an ex parte decree making r. 13 of the only provision in Or. IX applicable. Therefore the Civil Judge had no jurisdiction in the present case to entertain the first application of the appellant for setting aside the ex parte order and hence the second application under Or. IX, r. 13 was not only competent but had to be heard on merits without reference to the findings contained in the previous order.(vi)The inherent power of the Court cannot override the express or implied provisions of law. Order IX r. 7 and Or.IX 94813 between them exhaust and provide for every contingency which is likely to happen in the trial vis-a-vis the non appearance of the defendant at the hearing of a suit. This being the position there is no scope or justification for the invocation of the inherent powers of the Court under s.151.(vii) The Civil Judge was not competent to entertain the first application of the appellant (purporting to be under Or. IX, r. 7) for setting aside the ex parte order and that consequently the reason given in the order passed would not be resjudicata to bar the hearing of the second petition (under Or. IX, r. 13) of the appellant to set aside the ex parte order.See the full content of this document
Extract
Arjun Singh VS. Mohindra Kumar & Ors.
PETITIONER: ARJUN SINGH Vs.RESPONDENT: MOHINDRA KUMAR & ORS.DATE OF JUDGMENT: 13/12/1963BENCH: AYYANGAR, N. RAJAGOPALABENCH: AYYANGAR, N. RAJAGOPALASINHA, BHUVNESHWAR P.(CJ)SARKAR, A.K.CITATION: 1964 AIR 993 1964 SCR (5) 946CITATOR INFO : R 1966 SC1899 (5)RF 1973 SC 313 (9)R 1979 SC1436 (5)ACT: Code of Civil Procedure (Act V of 1908). ss. 11 and 151 and O. IX, rr, 3, 7 and 13-Principle of res judicata when applicable-"Good cause" and "sufficient cause" if different.JUDGMENT: CIVIL APPELLEATE JURISDICTION : Civil Appeal No. 768 of 1963.Appeal by special leave from the judgment and order dated May 6, 1963, of the Allahabad High Court in F.A.F.O. No. 116 of 1959.M.C. Setalvad, Y. Talwar and J.P. Goyal, for the appellant.G.S. Pathak, R.S. Agarwala, B. Dutta, J.B. Dadachanji, O.C.Mathur and Ravinder Narain, for the respondents.December 13, 1963. The Judgment of the Court was delivered byAYYANGAR J.-This is an appeal by special leave filed by a defendant whose application under O. TX, r. 13, Civil Procedure Code to set aside an ex parte decree passed against him has been dismissed as barred by resjudicata.To appreciate the points arising in the appeal it would be necessary to narrate the proceedings in three litigations between the parties. The ex parte decree that was passed against the defendant-who will hereafter be referred to as the appellant-and which he sought to be set aside in the proceedings which are the subject of the present appeal, was in Suit 134 of 1956 on the file of the Court of Second Civil Judge, Kanpur. But long before this suit was filed, the two other proceedings were already pending. The first of them was a Small Cause suit by one Phula Kuer who sought to recover from the appellant Rs. 750 on the basis that she and the appel- 949lant were partners and by an arrangement between them he agreed to pay her Rs. 150 per month for her share of the profits which he had failed to pay. This was suit 1023 of 1951 on the file of the Small Cause Court, Kanpur. The appellant entered on his defence and denied the partnership and his liability to pay the sum claimed. While this suit was pending, the appellant in his turn filed suit No. 20 of 1953 against Phula Kuer for fixing the fair rent of the premises in which he was carrying on the business, which Phula Kuer alleged was a partnership business, it being common ground that Phula Kuer was the owner thereof. While these two suits were pending Phula Kuer died on July 13, 1953 and thereafter one Rup Chand Jain filed suit 134 of 1956 already referred to, Rup Chand Jain died pending the appeal in the High Court and is now represented by his heirs who have been brought on record. It would how...
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