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IN THE HIGH COURT OF CIRCUIT BENCH AT DHARWAD

DATED THIS THE 06 TH DAY OF DECEMBER 2012

BEFORE

THE HON’BLE MR.JUSTICE ARAVIND KUMAR

MISCELLANEOUS SECOND APPEAL NO.310/2010

BETWEEN:

1. SHRI KESHAV GANESH KALLEKAR AGE: 42 YEARS, OCC: LEGAL PRACTITIONER AND AGRICULTURE, R/O PARWAD, TQ. -591302, DIST:

2. SHRI. DEVADAS VISHRAM GAVADE AGE: 45 YEARS, OCC: AGRICULTURE AND CHAIRMAN OF SATERI GRAM VIKAS PANCHAS ASSOCIATION, PARWAD, R/O PARWAD, POST: TQ: KHANAPUR-591302, DIST: BELGAUM

3. SHRI.GOPAL FATTU GAVADE, AGE: 46 YEARS, OCC: SECRETARY SATERI GRAM VIKAS PANCHAS ASSOCIATION PARWAD, R/O PARWAD, POST: KANAKUMBI TQ: KHANAPUR-591302, DIST: BELGAUM

4. SHRI. SHANKAR BHIKAJI GAVADE SINCE DECEASED BY HIS LRS

4A. SMT. PARWATI W/O SHANKAR GAVADE AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O PARWAD, POST: KANKUMBI TQ: KHANAPUR-591302, DIST: BELGAUM : 2 :

4B. SHRI DNYANESHWAR SHANKAR GAVADE AGE: 32 YEARS, OCC: AGRICULTURE R/O PARWAD, POST: KANKUMBI TQ: KHANAPUR-591302, DIST: BELGAUM

4C. SHRI. TUKARAM SHANKAR GAVADE AGE: 30 YEARS, OCC: AGRICULTURE R/O PARWAD, POST: KANKUMBI TQ: KHANAPUR-591302, DIST: BELGAUM

4D. SHRI. EKANATH SHANKAR GAVADE AGE: 28 YEARS, OCC: AGRICULTURE R/O PARWAD, POST: KANKUMBI TQ: KHANAPUR-591302, DIST: BELGAUM

5. SHRI. DEMU VISHNU NAIK AGE: 50 YEARS, OCC: AGRICULTURE R/O PARWAD, POST: KANKUMBI TQ: KHANAPUR-591302, DIST: BELGAUM

6. SHRI. VISHWANATH LAXMAN GAVADE AGE: 40 YEARS, OCC: AGRICULTURE R/O PARWAD, POST: KANKUMBI TQ: KHANAPUR-591302, DIST: BELGAUM

7. SHRI. MOTIRAM ARJUN GAVADE SINCE DECEASED BY HIS LRS

7A(a) SMT.URMILA LAXMAN GAVADE AGE: 40 YEARS, OCC: NIL R/O PARWAD, POST: KANKUMBI TQ: KHANAPUR-591302, DIST: BELGAUM

7A(b) MISS. GOKULA D/O LAXMAN GAVADE AGE: 21 YEARS, OCC: HOUSEHOLD WORK R/O PARWAD, POST: KANKUMBI TQ: KHANAPUR-591302, DIST: BELGAUM

7B. SHRI. NARAYAN MOTIRAM GAVADE AGE: 35 YEARS, OCC: AGRICULTURE R/O PARWAD, POST: KANKUMBI TQ: KHANAPUR-591302, DIST: BELGAUM SHOWN R.A. AS R/O. NEW HOTEL : 3 :

RESTAURANT LODGE AND BOARDING, NEAR MUNCIPAL COMPLEX, MARGAO - GOA.

7C. SMT. SHANTA MOTIRAM GAVADE AGE: 30 YEARS, OCC: AGRICULTURE R/O PARWAD, POST: KANKUMBI TQ: KHANAPUR-591302, DIST: BELGAUM

8. SHRI. MANJUNATH @ FATTU VITHAL GAVADE AGE: 40 YEARS, OCC: AGRICULTURE R/O PARWAD, POST: KANKUMBI TQ: KHANAPUR-591302, DIST: BELGAUM

9. SHRI. PRAKASH MALOJI GAVADE AGE: 35 YEARS, OCC: AGRICULTURE R/O PARWAD, POST: KANKUMBI TQ: KHANAPUR-591302, DIST: BELGAUM

10. SHRI. MADHUKAR LADU GAVADE AGE: 42 YEARS, OCC: AGRICULTURE R/O PARWAD, POST: KANKUMBI TQ: KHANAPUR-591302, DIST: BELGAUM

…APPELLANTS [BY SHRI HARISH S MAIGUR, ADV.]

AND:

1. SHRI. UMESH BABU SHIRODKAR @ SHRI. SADGURU PARWADESHWAR MAHARAJ AGE: 51 YEARS, OCC: BUSINESS R/O PARWAD, POST: KANKUMBI TQ: KHANAPUR-591302, DIST: BELGAUM

2. SHRI. SADGURU PARWADESHWAR MAHARAJ MATH, RELIGIOUS, CHARITABLE AND EDUCATIONAL TRUST, STYLES AS HAVING REGD. OFFICE NO.VPC 42/116-70 (R.S.NO.17 & 18) R/O PARWAD, POST: KANKUMBI : 4 :

TQ: KHANAPUR-591302, DIST: BELGAUM

…RESPONDENTS [BY SHRI CHANDRASHEKHAR SIRUR, ADV. FOR SHRI M.B.GUNDAWADE, ADV.]

THIS MISCELLANEOUS SECOND APPEAL IS FILED U/O.43 RULE 1(U) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 25.11.2009 PASSED IN R.A.NO.249/2008 (OLD NO.159/2006) ON THE FILE OF CIVIL JUDGE (SR.DN.) KHANAPUR AT KHANAPUR, ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DTD: 11.04.2002 PASSED IN O.S. NO.195/2011, ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.), KHANAPUR, DECREEING THE SUIT FILED FOR DECLARATION AND CONSEQUENTLY RELIEF OF PERMANENT INJUNCTION.

THIS MISCELLANEOUS SECOND APPEAL COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING: -

JUDGMENT

Heard Shri Harish S. Maigur, learned Advocate appearing for the appellants and Shri Chandrashekhar

Sirur, learned Advocate appearing on behalf of respondent Nos.1 and 2. This Court by order dated

29.03.2012 has admitted the above appeal for adjudication of the following substantial question of law.

“Whether the lower Appellate Court was justified in setting aside the judgment and decree of the trial Court and remanding the matter, when the appellant had parallelly : 5 :

initiated proceedings under Order 9 Rule 13 CPC and the miscellaneous proceedings filed under Order 9 Rule 13 CPC having been dismissed?”

2. Facts in brief leading to the filing of the present second appeal are as under: -

Parties are referred to as per their rank in O.S.

No.195/2001 which is the original proceedings.

3. Plaintiffs filed a suit for declaration and injunction against the defendants and an ex-parte judgment and decree came to be passed on 11.04.2002 by the Court of Principal Civil Judge (Junior Division)

Khanapur. Aggrieved by this judgment and decree the defendants filed an appeal in R.A. No.159/2006 (old) which came to be re-numbered as R.A. No.249/2008, challenging the said judgment and decree.

Simultaneously, they also filed a miscellaneous petition numbered as Civil Miscellaneous No.05/2004 challenging the said ex-parte judgment and decree passed by the Civil Judge (Junior Division) in both, : 6 : namely in Civil Miscellaneous Nos.05/2004 and

R.A.159/2006, there was delay in filing the respective petition and appeal. Hence, applications were filed seeking condonation of delay. In Civil Miscellaneous

No.05/2004, the application for condonation of delay came to be rejected and consequently, Civil

Miscellaneous No.05/2004 also came to be dismissed by order dated 07.11.2006. Being aggrieved by this order, defendants preferred an appeal in M.A.24/2008 and same came to be dismissed for default and said order reached finality. The application for condonation of delay filed in R.A. No.249/2008 (old No.159/2006) came to be allowed by order dated 30.07.2009 and lower Appellate Court condoned the delay in filing the appeal. Thereafter, the matter came to be adjudicated on merits by the Lower Appellate Court and R.A.

No.249/2008 (old No.159/2006) came to be disposed of by allowing the appeal by order dated 25.11.2009 by setting aside the ex-parte judgment and decree passed by the trial Court in O.S. No.195/2001 dated : 7 :

11.04.2002 and remanding the matter back to the trial

Court reserving liberty to the defendant to file the written statement and also reserving liberty to both the parties to tender the evidence with a further direction to the trial Court to dispose of the suit in accordance with law. On such order being made, the original suit came to be restored to its file and matter is said to be pending before the Court of Civil Judge (Junior Division)

Khanapur. Being aggrieved by the order of remand passed by the Lower Appellate Court the present appeal, under Order 43 Rule 1(u) of CPC has been filed by plaintiffs and as already noticed herein above, this

Court has admitted the appeal to adjudicate the substantial question of law formulated herein above.

4. It is the contention of Shri Harish S. Maigur, learned counsel appearing for the appellant that First

Appellate Court erred in not considering the fact that even prior to the filing of Regular appeal i.e.,

R.A.159/2006 (old) 249/2008 (new) the very same defendants had already filed Civil Miscellaneous : 8 :

No.05/2004 and same had been rejected which order also came to be affirmed in M.A. No.24/2008 and as such, Lower Appellate Court could not have condoned the delay in R.A.249/2008 and thereafter, allowed the appeal, in as much as, the embargo placed under

Explanation to Order 9 Rule 13 prohibit the litigant to have two remedies being espoused in two different forums for the same cause and as such, he contends that judgment of the Lower Appellate Court remanding the original suit to the trial Court by setting aside the ex-parte judgment and decree is erroneous, unjust, opposed to the facts and circumstances of the case and the law on this aspect, laid down by the Hon’ble Apex

Court and as such, he seeks for allowing the appeal by answering the substantial question of law in favour of the appellant and against the respondent. In support of his submission, he relies upon the following judgments:

i) AIR 2002 Supreme Court 2286: - “P.Kiran Kumar, vs. A.S.Khadar and Others”. : 9 :

ii) AIR 2005 Supreme Court 626: - “Bhanu Kumar Jain vs. Archana Kumar and Another”.

5. Per contra, Shri Chandrashekhar Sirur would support the judgment and decree passed by the

Lower Appellate Court and would contend that much water has flown down the bridge after the order of remand having been passed by the Lower Appellate

Court, namely the parties have appeared and filed their respective pleadings, tendered their evidence and argued the matter and it is at the stage of pronouncing of the judgment and if the judgment of the Lower

Appellate Court is now reversed, it would put the clock back and it would not serve the purpose for which the order of remand has been passed. As such, he requests this Court to answer the substantial question of law formulated in favour of the respondents – defendants and against the plaintiffs – appellants. He would also hasten to add that he does not dispute the proposition of law laid down by the Hon’ble Apex Court in the two : 10 : judgments relied upon by the learned counsel appearing for the appellants.

6. In view of the above narrated undisputed facts, it requires to be noticed that with regard to the proposition that when an ex-parte judgment and decree is passed, the aggrieved party has two alternates available before him, namely either he can challenge the said judgment and decree before the Appellate Court by invoking the appeal provision namely Section 96 read with Order 43 Rule 1(u) of CPC or alternatively, he can seek to before the same Court which passed the judgment and decree to set aside the said ex-parte judgment and decree by filing an application or petition under Order 9 Rule 13 and there cannot be two opinion on this. However, when he elects of either filing an application or a petition under Order 9 Rule 13, it would be needless to state that it requires to be continued till it reaches its logical end. However, he/she cannot file both an appeal under Order 43 Rule 1(u) and also maintain a petition under Order 9 Rule 13 or vice-versa. : 11 :

It is to clarify this situation the legislature in its wisdom thought fit to bring in amendment to CPC by Act

104/1976 with effect from 01.02.1977 by adding explanation the second proviso to Rule 13 of Order 9, which reads as under: -

2[Explanation - Where there has been an appeal against a decree passed ex parte' under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree ].

7. From perusal of above explanation, it can be noticed that when an appeal is preferred by an aggrieved person challenging an ex-parte judgment and decree and the said appeal has been disposed of, application would lie under this rule for setting aside such ex-parte judgment and decree. In other words, it would mean that the litigant cannot maintain two parallel remedies provided under the CPC to espouse a single cause. It is in this background, such aggrieved : 12 : person is given the liberty to choose, either to file an appeal or to file a petition under Order 9 Rule 13. At this juncture, it would be of benefit to note the law laid down by the Apex Court on this aspect and same reads as under: -

AIR 2002 Supreme Court 2286: “P.Kiran Kumar, vs. A.S.Khadar and Others”. 12. Explanation was added to Order IX Rule 13 with effect from February 1, 1977 by the Code of Civil Procedure (Amendment Act, 1976). Prior to its enactment a defendant burdened by an ex parte decree could apply under Order IX Rule 13 for setting aside the ex parte decree. He could also file an appeal under Section 96 against the ex parte decree. The mere fact of filing the appeal did not take away the jurisdiction to entertain and dispose of an application for setting aside an ex parte decree. Only in the cases in which the trial court decree merged with the order of the appellant court by reversal, confirmation or varying it, the trial court was precluded from setting aside the ex parte decree. Where the trial court decree did not : 13 : merge with the appellate court order the trial court was at liberty to proceed with the application for setting aside the ex-parte decree. Such instances arose when the appeal was dismissed in default or where it was dismissed as having abated by reasons of omission by the appellant to implead the legal representatives of a deceased respondent or where it was dismissed as barred by limitation. Explanation was added to discourage the two pronged attacks on the decree i.e. by preferring an application to the trial court under Order IX Rule 13 for setting aside the decree and by filing an appeal to the superior court against it. The legislative attempt incorporating the Explanation to Order IX Rule 13 is to confine the defendant, to either one of the remedies made available to him and not both. Dismissal of the appeal on any ground, apart from its withdrawal constituted a bar on the jurisdiction of the trial court to set aside the ex-parte decree. With the introduction of the explanation, no application to set aside the ex-parte decree would be maintainable where the defendant filed an appeal and the appeal was disposed of on any ground, other : 14 : than the ground that the appeal have been withdrawn by the appellant.

13. The scope of explanation to Order IX Rule 13 was considered by this Court in Rani Choudhury vs. Lt. Col. Suraj Jit Choudhury [1982 (2) SCC 596]. In the said case, the wife who had filed the appeal in this court had obtained an ex-parte decree of divorce against her husband in the matrimonial court. Husband had preferred an appeal in the high court alongwith an application under section 5 of the Limitation Act for condonation of delay in filing the appeal. The High Court dismissed the appeal as time barred. Respondent then moved an application under Order IX Rule 13, CPC for setting aside the ex parte decree. The matrimonial court dismissed the application on the ground that sufficient cause was not shown for condoning the delay. In appeal, however, the High Court took the view that explanation to Order IX Rule 13, CPC did not create any bar to the maintainability of the application under that rule as the appeal against the ex parte decree had not been dismissed on merits, : 15 : but on the ground of delay. By not accepting the application for condonation of delay meant as if no appeal had been preferred. This Court allowed the appeal and set aside the judgment and order of the High Court. The main judgment was written by R.S.Pathak, J. It was held: "The Code of Civil Procedure (Amendment) Act, 1976 was enacted with the avowed purpose of abridging and simplifying the procedural law. By enacting the Explanation, Parliament left it open to the defendant to apply under Rule 13 of Order 9 for setting aside an ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him. The withdrawal of the appeal was tantamount to effacing it. It obliged the defendant to decide whether he would prefer or have the decree set aside by the trial court under Rule 13 of Order 9. The legislative attempt incorporated in the Explanation was to discourage a two-pronged attack on the decree and to confine the defendant to a single course of action. If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of on any : 16 : other ground, he was denied the right to apply under Rule 13 of Order 9. The disposal of the appeal on any ground, whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation."

16. In the present case, admittedly an appeal MFA No.4166 of 1998 had been preferred by respondent No.2 and the same was dismissed as barred by limitation. In view of the dismissal of the earlier appeal, the application under Order IX Rule 13, CPC for setting aside an ex parte decree/award was not maintainable and the Tribunal erred in setting aside the ex parte decree/award made against the respondents. The High Court failed to notice this point in spite of the fact that the same had been specifically raised.

AIR 2005 Supreme Court 626: “Bhanu Kumar Jain vs. Archana Kumar and Another”. 26. When an ex-parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex-parte decree on the ground of fraud) : 17 : has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex-parte decree passed by the Trial Court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, the Explanation 1 appended to said provision does not suggest that the converse is also true.

31. In a case of this nature, however, the doctrine of 'issue estoppel' as also 'cause of action estoppel' may arise. In Thoday (supra) Lord Diplock held: "……" cause of action estoppel" is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation : 18 :

between the same parties. If the cause of action was determined to exist, i.e., judgment was given on it, it is said to be merged in the judgment. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam."

37. We have, however, no doubt in our mind that when an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available there against, viz, to prefer an appeal in terms of Order 43, Rule 1 of the Code. Once such an appeal is dismissed, the Appellant cannot raise the same contention in the First Appeal. If it be held that such a contention can be raised both in the First Appeal as also in the proceedings arising from an application under Order 9, Rule 13, it may lead to conflict of decisions which is not contemplated in law.

From the perusal of the above dicta laid down by the Hon’ble Apex Court, it would emerge that when one of the options is chosen or elected by an aggrieved person and he would not be entitled to : 19 : maintain both i.e., application for setting aside exparte judgment and decree and challenging the same judgment and decree in appeal.

8. Keeping the principles enunciated in the above two judgements, when the facts on hand with reference to Explanation to Order 9 Rule 13 is examined, it can be noticed that an ex-parte judgment and decree came to be passed on

11.04.2002. Aggrieved by this judgment and decree, Civil Miscellaneous No.05/2004 was filed invoking Order 9 Rule 13 of CPC. In filing such petition/application, there was a delay. Seeking condonation of delay, an application under Section

5 of the Limitation Act came to be filed. On the miscellaneous application, parties tendered their evidence and trial Court by order dated

07.11.2006 dismissed the Interlocutory

Application filed under Section 5 of the limitation

Act and consequently, dismissed the petition filed under Order 9 Rule 13 also. Aggrieved by this : 20 : order, M.A. No.24/2008 was filed before the

Principal Civil Judge (Senior Division) Khanapur, which is said to have been dismissed for default and matter was not pursued thereafter and as such order of dismissal reached finality.

9. However, during the pendency of Civil

Miscellaneous No.05/2004, a regular appeal also came to be filed before the Principal Civil Judge

(Senior Division), Khanapur, in Regular Appeal

No.159/2006 on 24.04.2006. By which time, the defendants were already prosecuting their petition filed under Order 9 Rule 13 before the trial Court in Civil Miscellaneous No.05/2004. A perusal of the appeal memorandum, Regular Appeal

No.159/2006 (re-numbered as Regular Appeal

No.249/2008), a passing reference is made to Civil

Miscellaneous No.05/2004 at paragraph 21.

There is no other pleading as to why the said petition was not being prosecuted or as to how the

Regular Appeal No.156/2009 (old), Regular Appeal : 21 :

No.249/2008 (new) was being filed and prosecuted when petitioner had already elected another forum. This is obviously with an intention to have the benefit of an order that may flow in favour of the defendant in either of the proceedings. Thus, the defendant choose to ride one boat with two legs in two different boats which is impermissible in view of Explanation to Rule 13 of Order 9. In the appeal filed i.e., R.A.159/2006 (old) 249/2008

(new) also there was delay in approaching the

Appellate court and seeking condonation of delay an application had also been filed. The appellate court condoned the delay by its order dated

13.07.2009 and set aside the exparte Judgment and decree by its Judgment dated 25.11.2009.

Neither in the order passed on Interlocutory

Application No.02/2012 namely application filed seeking condonation of delay which came to be disposed of on 13.07.2009 nor in the judgment and decree dated 25.11.2009 passed in Regular : 22 :

Appeal No.249/2008, there has been any discussion with regard to the filing of the Civil

Miscellaneous No.05/2004 or the pendency of it and the disposal of the said petition and its effect on the pending appeal i.e., R.A.249/2008. This clearly goes to show that the defendants are guilty of suppression of facts. The defendants themselves having filed Civil Miscellaneous

No.05/2004 and having suffered an Order of dismissal dated 07.11.2006 and having pursued the said order of dismissal of the petition filed under Order 9 Rule 13 by filing an appeal in

Miscellaneous Appeal No.24/2008 and the said appeal also having been dismissed for default and not prosecuting with those proceedings to its logical end, have with open eyes prosecuted

Regular Appeal No.249/2008 (new) Regular Appeal

No.159/2006 (old) by filing an appeal which at the cost of petition has to be held as not maintainable. : 23 :

10. In view of the aforesaid discussion, the one and only conclusion that can be drawn would be that when the defendants had chosen to challenge the judgment and decree passed in O.S. No.195/2001 by filing Civil Miscellaneous No.05/2004 by invoking the provision under Order 9 Rule 13 could not have maintained the appeal that too during the pendency of the said petition, an appeal namely Regular Appeal

No.159/2006 (old) Regular Appeal No.249/2008 (new) and parallelly prosecuted both the matters, and it was impermissible.

11. In view of the aforesaid discussion, the substantial question of law formulated herein has to be held in the negative, namely by holding that the Lower

Appellate Court was not justified in setting aside the judgment and decree of the trial Court and remanding the matter, when the appellants were parallelly prosecuting the petition filed under Order 9 Rule 13

CPC before the same Court. As such, it has to be held that the appeal filed by the appellants in Regular Appeal : 24 :

No.249/2008 (old Regular Appeal No.159/2006) was not maintainable and as such, the judgment and decree passed by the Lower Appellate Court requires to be set aside.

12. Hence, the following order: -

ORDER

i) Appeal is hereby allowed by answering the substantial question of law in favour of the appellants against the respondents.

ii) The judgment and decree passed by the Civil Judge (Senior Division), Khanapur, dated 25.11.2009 in Regular Appeal No.249/2008 (old Regular Appeal No.159/2006) is hereby set aside.

iii) Consequently, the appeal filed by respondents in R.A.249/2008 (new) 159/2006 (old) before the Civil Judge (Senior Division), Khanapur, is hereby dismissed.

Parties to bear their respective costs. : 25 :

In view of the appeal having been dismissed question of considering the application I.A.No.1/2011 for disposal does not arise and it stands rejected.

Sd/- JUDGE

Rsh