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TMI Blog1963 (12) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant ₹ 750 on the basis that she and the appellant were partners and by an arrangement between them he agreed to pay her ₹ 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 however be convenient to refer to the respondents as the plaintiff. Suit 134 of 1956 which was filed on May 19, 1956 repeated the allegation that Phula Kuer had entered into the partnership with the appellant under which she wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was fixed for May 28, 1958 may be adjourned for that purpose. The court, however, refused this application for the reason that the suit for the fixation of rent was of the year 1953. On the 28th there was again another application for adjournment and the court adjourned the trial by one day and fixed it for May 29, 1958, the order stating If no compromise is filed the case would be taken up for final hearing . On 29th the plaintiff was present but the appellant was absent and the latters' counsel who was present reported that they had no instructions to conduct the case. Thereupon the court passed an order in Suit 134 of 1956 in these terms: The plaintiff is present. Defendant is absent. Counsel for the defendants have no instructions. Case proceeds ex parte. Plaintiff examined Mohindra Kumar and closed. The order concluded with the words ,Judgment reserved . In the suit for the fixation of rent which was taken up for trial on the same date the order of the court ran: Plaintiff is absent. Defendant with his Counsel is present. Counsel for the plaintiff has no instructions. Suit is dismissed as per orders passed separately. It is only necessary to ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to stand and fixed August 25, 1958 for the delivery of the judgments. The appellant thereupon moved the High Court of Allahabad in revision against the order passed against the refusal of his application in suit 134 of 1956 alone and apparently obtained a stay of delivery of the judgment. This application was disposed of by the High Court on September 4, 1958 when the following order was passed: It is conceded that no ex parte decree has yet been passed. The only order passed is that the case shall proceed ex parte against the appellant. In view of the fact that no decree has yet been passed, the setting aside of the exparte order was not absolutely necessary. After referring to the decision of this Court in Sangram Singh v. Election Tribunal([1955] 2 S.C.R. p.l.) the learned Judge added: It follows that, even though the expert order had been passed, the applicant could appear and take part in the case from the stage at which the ex parts order had been passed. The only thing he could not claim was to be relegated back to the old position as if he had not absented himself on the date fixed. In these circumstances, I think, no interference is called for with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these have been upheld by the Civil Judge and the High Court but each one of them was sought to be supported before us by Mr. Pathak for the respondents. They were: (1) that the finding recorded in the earlier application filed on May 31, 1958 in suit 134 of 1956 that there was not sufficient cause for non-appearance on May 29, 1958 operated as res judicata in the petition filed under O. IX, r. 13 and was a bar to the re-inquiry of the same question on the merits; (2) the finding in the application to set aside the dismissal for default of suit 20 of 1953 which had become final operated was a bar to the trial of the same question in the application under O. IX, r. 13 in suit 134 of 1956; and (3).that the decree in suit 134 of 1956 was not in reality an ex parte decree but was a decree on the merits within O. XVII, r. 3, Civil Procedure Code and hence the remedy of the appellant was only by way of an appeal against the decree and he could not come in by way of an application under O. IX, r: 13. The learned Civil Judge upheld the first preliminary ground of objection and dismissed the application. The appellant there-upon filed an appeal to the High Court and the learned Judges like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration. The courts below have approached this question in this form. Order IX, r. 7 reads : 7. Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs, or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. If an application is made under this provision and the Court considers that there is not any good cause for the previous non-appearance and proceeds further with the suit and ultimately it results in an ex parte decree, can the Court in dealing with the application to set aside the ex parte decree under O.IX , r. 13 reconsider the question as to whether the defendant had a sufficient cause for non- appearance on the day in regard to which the application under O. IX, r. 7 had been filed? That the question of fact which arose in the two proceedings was identical would not be in doubt. Of course, they were not in successive suits so as to make the provisions of s. 11 of the Civil Procedure Code applicable in terms. That the scope of the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two suits and the findings in the first being res judicata in the later' suit, it is well-established that the principle underlying it is equally applicable to the case of decisions rendered at successive stages of the same suit or proceeding. But where the principle of res judicata 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 provisions made on matters touching such decision are some of the material and relevant factors to be considered before the-principle is held applicable. One aspect of this question is that which is dealt with in a provision. like s. 105 of the Civil Procedure Code which enacts: 105.(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure and so in Ram Kirpal's case and Bani Ram's case, such a decision being a decree really terminated the previous proceedings. The fact therefore that the Privy Council in Ram Kirpal Shukul's case described Mr. Probyn's order as an 'interlocutory judgment' does not justify the learned counsel's contention that all kinds of interlocutory judgments not appealed from become res judicata, Interlocutory judgments which have the force of a decree must be distinguished from other interlocutory judgments which are a step towards the decision of the dispute between parties by way of a decree or a final order. It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of resjudicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof of fresh facts, the court would be competent, nay,, would be bound to take those into account and make an order conformably to the facts freshly brought before the court. This leads us to the consideration of the nature of the court's direction under O. IX, r. 7-the nature of that interlocutory proceeding-with a view to ascertain whether the decision of the Court under that provision decides anything finally so as to constitute the bar of res judicata when dealing with an application under O. IX, r. 13, Civil Procedure Code. To sum up the relevant facts, it is common ground that the suit-134 of 1956 had passed the stages up to r. 5 1/SCI/64-61 of O. IX. Order IX, r. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the fact that it is proceeding ex parte will be recorded in the minutes 'of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ex parte decree or other ex parte order which the court is authorised to make. All that rule 6(1)(a) does' is to remove a bar and no more. It merely authorises the Court to do that which it could not have done without this authority, namely to proceed in the absence of one of the parties. Dealing next with the scheme of the Code, the learned Judge pointed out that the manner in which the Court could thereafter proceed i.e., after r. 6(1)(a) was passed would depend upon the purpose for which the suit stood adjourned, and proceeded : If it is for final hearing, an ex parte decree can be passed, and if it is passed, then O. IX, r. 13 comes into play and, before the decree is set aside the Court is required to make an order to set it aside. Contrast this with r. 7 which does not require the setting aside of what is commonly, though erroneously, known as.'the ex parte order'. No order is contemplated by the Code and there- fore no order to set aside the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onding to the present O. IX, r. 13. The ground put forward was again the same, namely that the summons was not properly served. The District Judge having dismissed the application under s. 108 (O. IX, r. 13), the defendants preferred an appeal to the High Court. On behalf of the plaintiffs-respondents the contention was raised by Mr. Bhashyam Ayyangar-learned Counsel-that the application to set aside the ex parte decree under s. 108 was incompetent because the same question has already been decided against the defendant when he filed the application under s. 101. The Court composed of Subramania Iyer Benson JJ. said, the contention at first sight may seem to be reasonable, but having regard to the very wide words 'in any case' used in s. 108 we are unable to hold that the defendant was not entitled to make an application under section 108. There have been other decisions in which a similar view has been held and though the provisions of the Code corresponding 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 single case in which the plea of res judicata such as has been urged in the appeal before us has been upheld. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to the stage which the suit had reached the only proceeding in which the appellant could participate was to hear the judgment pronounced and that on the terms of rules 6 7 he would permit him to do that. If, therefore, the hearing was completed and the suit was not adjourned for hearing , O. IX, r.7 could have no application and the matter would stand at the stage of O. IX, r.6 to be followed up by the passing of an ex parte decree making r. 13 the only provision in order IX applicable. If this were the correct position, it would automatically follow that the learned Civil Judge would have no jurisdiction to entertain the application dated May 31, 1958 purporting to be under O. IX, r.7, or pass any order thereon on the merits. This in its turn would lead to the result that the application under O. IX, r. 13 was not only competent but had to be heard on the merits without reference to the findings contained in the previous order. Mr. Pathak while not disputing that if the application filed on May 31, 1958 was incompetent at the stage it was filed, the order passed by the Civil Judge would not bar the consideration on the merits of the later application to set aside the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that the summons has not been duly served on the defendant in order to acquaint him with the proceedings before the Court. Rule 2 contains a proviso applicable to cases where notwithstanding the absence of service of summons, the defendant appears. Rule 3 deals with a case where the plaintiff alongwith the defendant is absent when the suit is called on and empowers the Court to dismiss the suit. Rule 5 deals with a case where the defendant is not served properly and there is default on the part of the plaintiff in having this done. Having thus exhausted the cases where the defendant is not properly served, r. 6(1)(a) enables the Court to proceed exparte where the defendant is absent even after due service. Rule 6 contemplates two cases: (1) The day on which the defendant fails to appear is one of which the defendant has no intimation that the suit will be taken up for final hearing for example, where the hearing is only the first hearing of the suit, and (2) where the stage of the first hearing is passed and the hearing which is fixed is for the disposal of the suit and the defendant is not present on such a day. The effect of proceeding ex parte in the two sets of cases would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the suit: (1) Where the hearing is adjourned or (2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that O. XX, r. 1 permitts judgment to be delivered after an interval after the hearing is complated. It would, therefore, follow that after the stage contemplated by O. IX, r. 7 is passed the next stage is only the passing of a decree which on the terms of O. IX, r. 6 the Court is competent to pass. And then follows the remedy of the party to have that decree set aside by application under O.IX. r. 13. There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of O. IX, r. 7. We are, therefore, of the opinion that the Civil Judge was not competent to entertain the application dated May 31, 1958 purporting to be under O. IX, r. 7 and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under O. IX, r. 13 filed by the appellant. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e joint trial of the three suits- 1023 of 1951, 20 of 1953 and 134 of 1956 and that as the three suits were thus linked together, the application made for the restoration of suit 20 of 1953 constituted a finding by a competent Court that there was no good or sufficient cause for the non-appearance of the appellant in court for any suit on May 29, 1958. The suits were. no doubt, ordered to be tried jointly in the sense that the evidence recorded in one suit was to be treated as evidence in the other suits also, suit 134 of 1956 being treated as the main suit in which evidence was recorded, but that affords no basis for the contention that every application made in one suit for the relief which is pertinent only to that suit must be treated as an application made in every other suit. Thus, for instance, in the present case if no application were made for the restoration of suit 20 of 1953 which had been dismissed for default it could hardly be contended that because of the application made in suit 134 of 1956 it would serve the purpose of an application for the restoration of that other suit Similarly, if an application had been made for the restoration of suit 20 of 1953 and the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis that the previous hearing was ex parte and was contested by the respondent on the same basis. The order of the High Court in revision on September 4, 1958 proceeds on the same basis. When finally judgment was pronounced by the Civil Judge in suit 134 of 1956 it expressly stated that it was a decree ex parte. In the face of these circumstances there should be overwhelming evidence of the proceedings not being ex parte if the respondent is to succeed in his present plea. In order that the decree passed was one under O. XVII, r. 3 which is the submission of Mr. Pathak the opening words of that rule must be satisfied. That rule reads: Where any party to a suit to whom time has been granted falls to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. In regard to this the Civil Judge stated: The ground on which this objection is based is that 29.5.58 was the date adjourned at the instance of the defendant-applicant. I do not think, that this ground has any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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