JAYAPRAKASH & ANR.versusT. S. DAVID & ORS.

262                      [2018]REPORTS
               SUPREME COURT    1 S.C.R. 262                 [2018] 1 S.C.R.


A                          JAYAPRAKASH & ANR.
                                         v.
                              T. S. DAVID & ORS.
                         (Civil Appeal No. 883 of 2018)
B                              JANUARY 25, 2018
        [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
             Code of Civil Procedure, 1908 – Or.IX, r.13 – Setting aside of
      ex parte decree – Suit for specific performance of agreement for
      sale of suit property filed by appellants on the ground that
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      respondents-defendant nos.1 and 2 failed to complete sale
      transaction as per the terms of agreement despite taking the advance
      money from appellants and instead sold the suit properties to
      defendant nos.3 and 4 – Respondents remained ex parte since
      inception – Ex-parte decree passed against respondents jointly and
D     severally – Defendant no.3 and 4 applied for setting aside the ex
      parte decree under Or.IX, r.13 – Trial court set aside the ex parte
      decree and restored the original suit to its file to decide the suit
      afresh on merits – On remand, defendant nos.1 and 2 remained ex
      parte – Trial court again decreed the suit against all the four
      defendants – Defendant nos.3 and 4 filed appeal before High Court
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      – High Court allowed the appeal and again remanded the case to
      trial court for fresh trial – Whether High Court was justified in
      remanding the case to trial court for its denovo trial – Held:
      Defendant nos. 1 and 2 were entitled to a notice of the proceedings
      under Or.IX, r.13 in terms of local amendment made by the State of
F     Kerala in the first proviso to Or.IX, r.13 wherein the words “after
      notice to them” were inserted – This local amendment made in the
      first proviso was applicable to defendant nos. 1 and 2 – No notice
      was served on defendant Nos. 1 and 2 before setting aside the ex
      parte decree and in their absence, the suit was restored – This was
      one irregularity committed by the trial court while restoring the entire
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      suit, though it was for the benefit of defendant Nos. 1 and 2 – After
      the suit was restored at the instance of defendant nos. 3 and 4, the
      trial court committed another error inasmuch as it again did not
      issue fresh notice of the suit to defendant nos. 1 and 2 – In other
      words, defendant nos. 1 and 2 were entitled for a fresh notice of the
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                                        262
                  JAYAPRAKASH v. T. S. DAVID                                 263


suit once restored despite their non-appearance in the first round           A
of trial in the suit and in Or.IX, r.13 proceedings – The two legal
infirmities call for remand of the case to the trial court for fresh
adjudication of the civil suit on merits in accordance with law –
Specific performance – Decree – Ex-parte decree – Notice.
        Dismissing the appeal, the Court                                     B
      HELD: 1. The Trial Court will now issue fresh notice to
defendant Nos. 1 and 2 in the suit by usual mode of service and
then by substituted service, if need arises. It is only after the
service of the suit is held complete on defendant Nos. 1 and 2,
the Trial Court will proceed with the trial in the suit on merits.           C
[Para 22][266-D]
        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 883 of
2018.
      From the Judgment and Order dated 05.11.2014 of the High Court
of Kerala at Ernakulam in RFA No. 541 of 2007.                               D
       C. S. Rajan, Sr. Adv., A. Raghunath, Ms. Pushpa Devi Sikri, Advs.
for the Appellants.
      Thomas P. Joseph, Sr. Adv., V. Sreedha Reddy, Abhijit Sengupta,
Jayant Muthraj, C. K. Sasi, Advs. for the Respondents.
                                                                             E
        The Judgment of the Court was delivered by
        ABHAY MANOHAR SAPRE, J. 1. Leave granted.
      2. This appeal is filed by the plaintiffs against the final judgment
and order dated 05.11.2014 passed by the High Court of Kerala at
Ernakulam in R.F.A. No.541 of 2007 whereby the High Court allowed            F
the appeal filed by defendant Nos. 3 & 4 (respondent Nos.1 & 2 herein)
and set aside the judgment and decree dated 20.02.2007 passed by the
sub-Court, Kottayam in O.S. No.337 of 2001.
      3. In order to appreciate the short controversy involved in the
appeal, few relevant facts need mention hereinbelow.                         G

       4. The appellants are the plaintiffs whereas the respondents are
the defendants in the civil suit out of which this appeal arises.
      5. The appellants filed a civil suit being O.S. No. 337/2001 against
the respondents (defendants) in the Court of Principal Sub-Judge,
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264             SUPREME COURT REPORTS                            [2018] 1 S.C.R.


A     Kottayam for specific performance of the agreement (Ex-A-1) for sale
      of suit properties to the appellants by the respondents (defendant Nos.1-
      4) for a total consideration of Rs.5,70,000/-.
             6. According to the appellants, since defendant Nos. 1 and 2
      (original owners of the suit properties) failed to sell the suit properties to
B     the appellants as per the terms of the agreement despite taking advance
      money from the appellants and instead sold the suit properties to
      defendant Nos. 3 and 4, the appellants filed the suit against defendant
      Nos. 1 to 4 seeking specific performance of the agreement (Ex-A-1)
      against defendant Nos. 1 and 2.
C           7. The defendants (respondents) were served by substituted
      service. They, however, remained ex parte since inception. The Trial
      Court, therefore, on 27.02.2004 passed an ex parte decree against the
      defendants (respondents) jointly and severally.
             8. Thereafter, defendant Nos. 3 and 4 applied for setting aside of
D     the ex parte decree dated 27.2.2004 under Order 9 Rule 13 of the Code
      of Civil Procedure, 1908. The Trial Court, by order 20.12.2006, allowed
      the application and set aside the ex parte decree and restored the original
      suit to its file to decide the suit afresh on merits.
             9. On remand, defendant Nos. 3 and 4 filed the written statement.
E     So far as defendant Nos. 1 and 2 are concerned, they remained ex
      parte. The Trial Court, by judgment/decree dated 20.02.2007, again
      decreed the suit against all the four defendants jointly and severally.
             10. Defendant Nos. 3 and 4 felt aggrieved and filed first appeal
      before the High Court. By impugned judgment, the High Court allowed
F     the appeal and while setting aside the judgment/decree of the Trial
      Court again remanded the case to the Trial Court for fresh trial on merits.
      In the opinion of the High Court, the Trial Court did not decide the issues
      arising in the case properly and, therefore, the entire case needs a fresh
      consideration with a liberty to parties to adduce further evidence. The
      case was accordingly remanded to the Trial Court.
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            11. The plaintiffs felt aggrieved by the impugned judgment and
      have filed this appeal by way of special leave in this Court.
              12. Therefore, the short question, which arises for consideration
      in this appeal, is whether the High Court was justified in remanding the
      case to the Trial Court for its de novo trial.
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                    JAYAPRAKASH v. T. S. DAVID                                    265
                   [ABHAY MANOHAR SAPRE, J.]

      13. Heard Mr. C.S. Rajan, learned senior counsel appearing for              A
the appellants and Mr. Thomas P. Joseph, learned senior counsel for
respondent Nos. 3 & 4 and Mr. C.K. Sasi, learned counsel for respondent
Nos. 1 & 2.
       14. Having heard the learned counsel for the parties and on perusal
of the record of the case, we find no merit in this appeal.                       B
        15. In our opinion, the remand order of the High Court to try the
suit afresh on merits appears to be correct, though we uphold the remand
order on additional grounds, which were not taken note of by the High
Court and nor urged here. In our opinion, therefore, the remand of the
case to Trial Court is otherwise called for.                                      C
        16. It is not in dispute that all the four defendants (1 to 4) suffered
ex parte decree on 27.02.2004 jointly and severally. It is also not in
dispute that only defendant Nos. 3 and 4 applied to the Court for setting
aside the decree under Order 9 Rule 13 of the Code. This application
was allowed by the Trial Court by order dated 20.12.2005 which resulted           D
in setting aside of the entire ex parte decree against all the defendants,
including defendant Nos. 1 and 2 though they did not apply for its setting
aside. The suit was accordingly restored to its file for fresh trial on
merits.
       17. In our view, defendant Nos. 1 and 2 were entitled to a notice          E
of the proceedings under Order 9 Rule 13 of the Code in terms of local
amendment made by the State of Kerala in the first proviso to Order 9
Rule 13, wherein the words “after notice to them” were inserted. This
local amendment made in the first proviso to Order 9 Rule 13 was
applicable to defendant nos. 1 and 2. When enquired, it was stated that
no notice was served on defendant Nos. 1 and 2 before setting aside the           F
ex parte decree and in their absence, the suit was restored. This was,
in our view, one irregularity committed by the Trial Court while restoring
the entire suit, though it was for the benefit of defendant Nos. 1 and 2.
       18. Be that as it may, in our considered opinion, after the suit was
restored at the instance of defendant Nos. 3 and 4, the Trial Court               G
committed another error inasmuch as it again did not issue fresh notice
of the suit to defendant Nos. 1 and 2. In other words, defendant Nos. 1
and 2 were entitled for a fresh notice of the suit once restored despite
their non-appearance in the first round of trial in the suit and in Order 9
Rule 13 proceedings.
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266              SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A            19. The Trial Court, however, again decreed the suit by judgment/
      decree dated 20.02.2007 ex parte against defendant Nos. 1 and 2 but
      after hearing only defendant Nos. 3 and 4. It is against this judgment
      and decree which was impugned in appeal by defendant Nos. 3 and 4,
      which was again set aside by the High Court by impugned judgment
      resulting in remand of the case to the Trial Court for fresh trial on merits
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      giving rise to filing of this appeal by the plaintiffs.
             20. As mentioned above, though we are inclined to uphold the
      remand order, but that we do so on the basis of aforementioned two
      grounds noticed by us in the proceedings in the suit and in Order 9 Rule
      13 proceedings. The two legal infirmities noticed by us in the proceedings
C     call for remand of the case to the Trial Court for fresh adjudication of
      the civil suit on merits in accordance with law.
            21. In the light of the foregoing discussion, the appeal fails and is
      accordingly dismissed.

D             22. The Trial Court will now issue fresh notice to defendant Nos.
      1 and 2 in the suit by usual mode of service and then by substituted
      service, if need arises. It is only after the service of the suit is held
      complete on defendant Nos. 1 and 2, the Trial Court will proceed with
      the trial in the suit on merits.

E           23. So far as defendant Nos. 3 and 4 are concerned, they are
      already served and hence they are not entitled to any notice.
             24. Parties to appear before the Trial Court in the Suit on 05.02.2018
      to enable the Trial Court to proceed in the trial as directed above. The
      Trial Court will decide the suit on merits strictly in accordance with law
F     expeditiously.


      Devika Gujral                                                 Appeal dismissed.




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