Appeal against remand back order dismissed, trial court to hear and consider the case afresh

January 25, 2018

A Bench of Supreme Court Judges, Justice R. K. Agrawal and Justice Abhay Manohar Sapre dismissed the appeal filed against the order of Kerala High Court directing to remand back a case in which the order was passed ex parte without issuing fresh notice to two respondents at the time of considering the case afresh.

The facts of the case Jayaprakash & Anr v. T.S. David & Ors, Civil Appeal No. 883 of 2018 is that the appellants filed a civil suit being O.S. No. 337/2001 against the respondents in the Court of Principal Sub-Judge, Kottayam for specific performance of the agreement for sale of suit properties to the appellants by the respondents for a total consideration of Rs.5,70,000/-.

Since the original owners of the suit properties failed to sell the suit properties to 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 against defendant Nos. 1 and 2.

The 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 jointly and severally.

Thereafter, defendant Nos. 3 and 4 applied for setting aside of 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. On remand, defendant Nos. 3 and 4 filed the written statement. 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.

Defendant Nos. 3 and 4 felt aggrieved and filed first appeal before the High Court. By impugned judgment, the High Court allowed 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.

The plaintiffs felt aggrieved by the impugned judgment and have filed special leave appeal in the Supreme Court. The short question, which arises for consideration in the appeal, was whether the High Court was justified in remanding the case to the Trial Court for its de novo trial.

The Supreme Court opined that 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.

The court said that "in our view, defendant Nos. 1 and 2 were entitled to a notice 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 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."

The court dismissed the appeal and directed that 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.

Read the Judgment of Supreme Court of India in Jayaprakash & Anr v. T.S. David & Ors 25.1.2018