OM PRAKASHversusAMARJIT SINGH & ANR.

A                           OM PRAKASH
                                   v.
                         AMARJIT SINGH & ANR.

                               AUGUST 10, 1988

B           [A.P. SEN AND M.N. VENKATACHALIAH, JJ.]

          Civil Procedure Code, 1908: Section 105(2)-0rder 9, Rule 7-
    Application for setting aside order placing defendant ex parte dismissed
    by trial court as unsigned-High Court in revision remitting application
    for disposal after allowing defendant to affix signature-Application
    dismissed by trial court as time barred-Suit for specific performance
c   decreed on basis of witnesses examined in ex parte-District Court
    affirming that application was time barred, but remanding suit for fresh
    disposal-Remand order-Not appealed against-Assuming finality-
    Whether defendant entitled to adduce fresh evidence and recall witnesses
    examined ex parte, on remand.
D
          Specific Relief Act, 1963: Sections 20 and 34-Suit for specific
    performance-Grant of relief-Discretionary-Equitable and discre-
    tionary jurisdiction of Court-When can be exercised.

           In a suit for specific enforcement of an agreement to sell the suit
E   property filed by respondent No. I, the appellant was placed ex parte for
    default of non-appearance, after he entered appearance and filed his
    written statement. Thereafter, the appellant's application under Order
    IX, r. 7 of C.P.C. for setting aside the above order was dismissed for
    default. After respondent No. I examined two of his witnesses, appel-
    lant tiled an unsigned application for setting aside the aforesaid orders.
F   This was also dismissed by the trial court because it was unsigned. The
    High Court in revision, allowed the appellant's prayer, and remitted
    the application for fresh disposal, after affording an opporturdty to the
    appellant to sign the application. Thereafter the appellant signed the
    application, but it was again rejected by the trial court, as barred by
    lime, reckoning the date of affixture of signature as the date of its tiling,
G   and the suit was decreed on the basis of evidence of two witnesses
    examined for the plaintiff when the appellant was ex parte.

          On appeal, District Judge concurred with the trial court's view
    that the appliq11ion for setting aside the dismissal order and the ex
    parle order was barred by lime, but set aside the decree holding that
H   the decree was not in accordance with Jaw and not executable for a
                                        362
                            OM PRAKASH v. AMARJIT                           363

    number of reasons and remanded the suit to the trial court for a fresh
                                                                                   A
    disposal, after giving an opportunity of hearing to both parties.

          On remand, the trial court dismissed the suit. It held that the
    remand order having been upheld, the dismissal of the appellant's
    application for setting aside the order placing the appellant ex parte,
    must be understood to have excluded from the scope of the proceedings          B
    on remand, any entitlement of appellant to recall the witnesses
    examined when the appellant was ex parte. The District Judge, in
    appeal, confirmed this decision. The High Court rejected appellant's
    second appeal in limine.

          In the appeal tiled before this court, on behalf of the appellant, it C
    was contended that the trial court should have tried the suit de-novo by
    affording an opportunity to both the parties to adduce e~ldence afresh,
    and that the scope of the remand also entitled the appellant to have the
    two witnesses examined earlier for the plaintiff recalled for cross•
    examination.
                                                                                   D
          Allowing the appeal,

           HELD: 1.1 An order, which is appealable under Order 43, Civil
    Procedure Code, if not appealed against, becomes final and its correct·
    ness is no more open to examination in view of s. 105(2) of the Code. [368C)
                                                                                   E
"         Nainsingh v. Koonwarjee, [1971) l SCR 207 relied on.

          In the instant case, the order of remand, not .having been
    appealed against by either side, had assumed finality. Hence the Juris·
    diction of the trial court was circumscribed and fettered by the order of
    remand. [368E]                                                                 F

          1.2 It is true that it would not be necessary for a party to gel rid
    of an order placing him ex parte if the party wishes to participate in the
    proceedings at any particular stage onwards, provided that he does not
    seek to be relegated to the position he would have occupied if he had
    appeared at the earlier hearing or hearings and does not seek to set           G
    back the hands of the clock. It means that he must accept all that has
    gone before and be content to proceed from the stage al which he has
    come in. [368F)

          Sangram Singh v. Election Tribunal, Kotah,, Bhurey Lal Baya,
    [1955] 2 SCR land Arjun Singh v. Mahindra Kumar & Ors., [1964) 5               H
    SCR 946 referred to.
    364         SUPREME COURT REPORTS                [1988] Supp. 2 S.C.R.

           In the present case, however, the appellant did seek to set the
A
    hands of the clock backwards and wanted to recall the witnesses for
    cross-examination. This was not possible having regard to the finality
    the .order of remand had assumed. [368H]

          2. In a suit for specific performance of an agreement to sell, grant
B   of relief is discretionary. The Court after consideration of all relevant
    circumstances must be persuaded to exercise its equitable and discre-
    tionary jurisdiction in favonr of specific enforcement. The jurisdiction
    is subject to all the conditions to which all discretionary jurisdictions
    are subject. [369A]

          In the instant case, there are certain personal bars to relief.
c   Respondent No. I, who was the plaintiff in the suit, did not enter the
    box and tender evidence. The subject matter of the suit is a small piece
    of property of 68 sq. yds. and is said to be the only worldly goods of the
    appellant. Therefore having regard to all the circumstances of the case
    and in order that complete justice is done, the decrees of the courts
D   below are set aside and the suit remitted for a fresh disposal after
    affording an opportunity to both parties to adduce fresh evidence on
    their respective sides. Appellant will also be entitled to have the wit-
    nesses examined in his absence recalled for cross examination. [369B-D]

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2582
E   of 1988.

          From the Judgment and Order dated August 6, 1987 of the
    Ptmjab and Haryana High Court in Regular Second Appeal No. 2569
    of 1987.

F         A.K. Nag and Ms. Madhu Tewatia for the Appellant.

          K.K. Mohan and Ms. Arnita Gupta for the Respondents.

          The following Order of the Court was delivered:

G                                   ORDER

          Special Leave granted. Arguments heard.

       This appeal by the unsuccessful defendant who has suffered a
  decree of specific performance of an agreement to sell relating to a
H piece of immovable property, is directed against the order dated
                            OM PRAKASH v. AMARJIT                          365

    6.8.1987 of the High Court of Punjab andHaryana in RSA No. 2569 of A
    1987 dismissing, in limine, appellant's second appeal.

           2. Amarjit Singh, Respondent I, brou,ght the Civil Suit No.
    3397 /82/259.80 in the Court of Sub Judge, 1st Class, Patiala for, specific
    enforcement of an agreement to sell dated 14.2.1979 said to have been
    executed in his favour by the appellant respecting the suit property.         B
    After service of summons, appellant entered appearance and filed his
    written statement. But on 7.12.1981 he was placed ex-parte for
    "default of non-appearance". On 4.2.1982, plaintiff (respondent 1)
    examined two witnesses on his side. But later the same day appellant
    appears to have filed an application presumably under Order IX, r. 7
    CPC to have the earlier order dated 7 .12.1981 placing him ex parte set
    aside. This application was dismissed for default on 25.9. l982. On           C
    30.9.1982 appellant filed an unsigned application for setting aside that
    order of dismissal dated 25.9.1982 and -also for setting aside the order
    dated 7.12.1981 placing him ex parte. This application was dismissed
    by the trial court on 25.2.1983 on the ground that it had not been
    signed by the appellant. Howe•er, the High Court in revision allowed          D
    appellant's prayer and remitted that application for a fresh disposal,
J   after affording to the appellant the opportunity to sign that applica-
    tion. Pursuant thereto, that application was signed by the appellant on
    12.5.1983; but on 16.9.1983 the application was again dismissed by the
    trial court on the ground that it was barred by time. The tr!al court.
    took the view that the date of affixture of the signature was to be           E
    reckoned as the date· of its filing and, accordingly found it out of time.
                                    '                          .
          On. the same day, the trial court on the basis of the evidence of
    the two witnesses examined.earlier for the plaintiff, decreed the suit.

          3. Against this decree, appellant filed an appeal in ,the Court of      F
    Additional District Judge Patiala. The learned District Judge appears
    to have concurred with the trial court's view that the application dated
    30.9.1982 was barred by-time. Le.arned District Judge held:

                      " ..... For all these reasons I ·agree with the lower
                court that application dated 30.9.1982 was barred by limita-      G
                tion and deserves dismissal on this ground ........... ".

          The reason for holding that the application was statute-barred
    was that:

                      " ..... Application dated 30.9.1982 was admittedly          H
    366        SUPREME COURT REPORTS                 [1988] Supp. 2 S.C.R.

               not signed when it was presented in court on that day but it
A
               was subsequently signed by defendant No. 1 on 12.5.1983.
               There was no application in the eyes of law on 30. 9 .1982 as
               it was not duly signed by defendant No. 2. It became a
               proper application only on 12.5.1983 when it was signed by
               defendant No. 1 and so it must be deemed to have been
B              filed on that date ..... ".

          The understanding by both the courts of the directions of the
    High Court in the revision proceedings permitting appellant to sign the
    application may not be a correct one. But that order was not assailed
    by the appellant in the appropriate proceedings. However, the learned
    District Judge set aside the decree dated 16.9.1983 on some other
c   ground and remitted the suit to the trial court for a fresh disposal. The
    operative part of the judgment dated 14.2.1986 of the learned District
    Judge is in the following tei'ms:

                " ..... In the result I accept the appeal set aside the judg-
D               ment and decree passed by the lower court and remand the
                case to the lower court i.e. court of Shri J.R. Singla, which
                is successor court of the court of Shri G .K. Rai with the        l
                direction to re-admit the suit under its original number in
                the register of civil suits and proceed to determine the suit
                afresh in the light of above observations by giving a clear
E               findings according to law as to the suit property in respect
                of which any relief is granted to the plaintiff, nature of the
                relief declined or allowed to' the plaintiff out of the reliefs
                prayed for and the conditions subject to which decree of
                specific performance and possession if any, is passed and
                the names of the defendants against whom it is passed. The
F               lower courf shall give proper opportunity of hearing to
                both the parties in accordance with law before passing
                afresh decree ..... '.'.

         Referring to the need for, and the points which require to be
    decided on, remand the learned District Judge said:
G
                     "I have, however, found that in some other respects
                the decreer passed by the lower court is not sustainable
                being not in conformity with law and not a executable
                decree due to the number of reasons ..... ". ·

H                     " ..... The learned sub-judge has failed to give a
                           OM J'RAKASH v. AMARJIT                      367

               clear finding as to what was the sale consideration for the
                                                                              A
               disputed transaction of sale as entered into between
               defendant No. 1 and the plaintiff vide the agreement dated
               14.2.1979 executed by defendant No. 1 and as to how much
               consideration had already been paid at the time of agree-
               ment and what was the amount which remained for pay-
               ment and in what manner and by what date it was to be B
               paid by the plaintiff to defendant No. I. The learned Sub-
               judge did not at all go into the question as to whether the
               property in suit was already mortgaged and what was the
               mortgage amount which was payable to the prior mortga-
               gee. He has missed even to look into the admission made
               by the plaintiff in this regard in the plaint. Again the lower C
               court has failed to give any finding on the· prayer of the
               plaintiff for possession of the suit property and as to if it
               (sic) any conditions this relief could be granted to him
               while passing the decree in his favour. No direction was
               given in the impugned decree about the payment of any
               sale consideration under the agreement in dispute and D
               accordingly no time was fixed for making the said payment
)              as required under rule 12A of Order 20 CPC. Plan of the
               suit property in respect of which the decree for specific
               performance has been passed by the lower court has also
               not be~n got proved and referred to in the decree. In the
               absence of same, decree must be termed as vague and in- E
               executable ..... ".

         4. On remand, the trial court dismissed the suit by its
    judgment dated 30.5.1986. The District Judge in appeal confirmed this
    decree for dismissal. The High Court by its order' dated 6.8,1987, now
    under appeal, rejected appellant's second appeal in limine.               F

          5. Appellant's main grievance in this appeal is that pursuant to
    and in terms of the order of remand dated 14.2.1986 the trial court,
    should have tried the suit de-nova by affording an opportunity to both
    the parties to adduce evidence afresh and that the scope of the remand
    also entitled appellant to have the two witnesses examined earlier for    G
    the plaintiff recalled for cross examination. The trial court however
    understood the order of remand dated 14.2. 1986 differently. It held
    that the order hav_ing upheld the dismissal of the appellant's applica-
    tion for setting aside the order, placing appellant ex-parte must be
    understood to have clearly excluded from the scope of the proceedings
    on remand, any entitlement of -appellant to recall the witnesses          H
    368         SUPREME COURT REPORTS                [1988) Supp. 2 S.C.R.

A examined at a time when appellant was ex-parte.
          This view of the trial court as to the scope of the proceedings on
    remand was endorsed by the first appellate court and must be held to
    have been approved by the High Court. Appellant as~ails its correc-
    tness here.

           6. Appellant's entitlement to adduce fresh evidence and to have
    plaintiff's witnesses recalled for cross-examination turns upon and is
    circumscribed by the order of remand. The order of remand dated
     14.2.1986, not having been appealed against by either side had
    assumed finality. As observed by this court in Nain Singh v. Koonwar-
    jee, [1971) I SCR 207 an order, which is appealable under order 43,
C   CPC, if not appealed against, becomes final and its correctness is no
    more open to examination in view of the provisions of Section 105(2)
    of the Code which provides that where any party, aggrieved by an
    order of remand from which an appeal lies, does not appeal therefrom,
    he shall thereafter be precluded from disputing its correctness. It is
D   true that the correctness of the view taken by the District-Judge in the
    course of the remand order that the date of the signing of the applica-
    tion and not the date of its initial filing was the relevant date for
    purposes of reckoning limitation is open to doubt in the light of the
    directions of the High Court permitting appellant to sign that applica-
    tion. But that order of remand, as stated earlier, was not appealed
E   against by the appellant. The trial court was right in its view that its
    jurisdiction on remand was circumscribed and fettered by the terms of
    the order of remand.

        The appeal to the principle in Sang ram Singh v. Election
  Tribunal, Kotah, Bhurey Lal Baya, [1955) 2 SCR I, in the circumst-
F ances, is not much of assistance to the appellant. It is true that it would
  not be necessary for a party to get rid of an order placing him ex parte if
  the party wishes to participate in the proceedings at any particular
  stage onwards, provided that he does not seek to be relegated to the
  position he would have occupied if he had appeared at the earlier
  hearing or hearings and does not seek to set back the hands of the
G clock. It means that he must accept all that has gone before and be
  content to proceed from the stage at which he has come in. (See also:
  A1j11n Singh v. Mahindra Kumar & Ors., [1964) 5 SCR 946). In the
  present case, appellant did seek to set the hands of the clock back-
  wards; he wanted !he witnesses to be recalled for cross examination.
  This, unfortunately, was not permissible having regard to the finality
H the order of remand had assumed.
                          OM PRAKASH v. AMARJIT                               369

          7. But that does not appear to be the end of the matter. ·This is a
• ·suit 'for specific performance on an agreement to sell. The grant of ·A
   relief is discretionary. The court after consideration of all relevant
  ·circumstances must be persuaded to exercise its equitable and ·dis-
  ·cretionary jurisdiction in favour of specific enforcement. The jurisdic-
  -tion is subject to all the conditions to which all discretionary jurisdic-
  -lions are subject. There are certain personal bars to relief. Res- B
   ponden1:1, who was the plaintiff in the suit, did not enter the box and
   _tender evidence._ The subject matter of the suit is a small piece of
   property of 68 Sq. yds. and is said to be the onlyworldly goods of the
   appellant. -· -

        Having regard to all the circumstances of the case and in order
  that complete justice is done, the· order that -commends itself as                c
  appropriate is to set aside the decrees of the courts below and remit
  the suit for a fresh disposal after affording an opportunity to both
  parties to adduce fresh evidence on their respective sides. Appellant
  shall also be entitled to have the witnesses examined in his absence
  recalled for cross examination.                                                   D

        The relief we grant might look a little over-liberal; we think that
 the appellant should have another opportunity to have his case put-
 forward and examined on the merits. This is dP"e by compensating the
 first-respondent as to on costs which we determine at a sum of
 Rs.1,000 which appellant shall pay to the first respondent in the trial            'E
  court after the suit goes back before it.                    ·          -

     __ 8. Accordingly, the appeal is allowed, the decrees of the courts
  below set aside and the suit is remitted to the trial court to be
''re-registered in its original number and disposed of in accordance with
  · law and in the light of the observations made in the course of this             F
  judgment. Both the parties are directed to appear before .the trial
  court on 30th of September 1988, for further proceedings in the suit on
  remand without the requirement of service of fresh· notices to them
  from the trial court in this behalf. The trial.court is directed to call this
  matter on 30th of September 1988, for this purpose.                     .-, ·-

 'N.P.V.                                                     Appeal allowed .
     . ,/