Ex-Parte Decree | Remedies Under Order 9 Rule 13 & Section 96 CPC Are Concurrent, Can Be Resorted To Simultaneously: Jammu & Kashmir High Court

The Jammu and Kashmir and Ladakh High Court has reiterated that remedies under Order 9 Rule 13 CPC and Section 96 of the CPC, which allow for setting aside an ex parte judgment and filing an appeal, respectively, are concurrent and can be resorted to simultaneously.

Justice Javed Iqbal Wani made this reiteration while hearing a second appeal against judgment and decree passed by the Court of Sub-Judge Katra as also judgment and decree passed by the Court of District Judge Reasi in an appeal.

In the instant matter the Respondent/Plaintiff had filed a suit for injunction before the trial court in respect of a patch of a land, alleging that he was one of the co-owners in possession of the land and that the Appellant/Defendant had unlawfully interfered with the land by cutting and digging it for the construction of a hotel.

The trial court proceeded with the case, and despite the Appellant/defendant's multiple absences, the suit was decreed in favour of the Respondent/plaintiff. The defendant chose to appeal the judgment, but the appellate court upheld the decision of the trial court.

One of the key issues raised in the second appeal was the perversity of both the lower courts in not deciding the defendant's application under Order 7 Rule 11 of the CPC, which sought the rejection of the plaint. The Appellant/defendant argued that the plaintiff lacked the right and competence to maintain the suit as he had not acquired joint common possession of the land with the other purchasers, and he had failed to implead the co-sharers as parties. The defendant also contended that the claim made by the plaintiff was vexatious and an abuse of process.

Adjudicating upon the matter Justice Wani observed that the remedies under Order 9 Rule 13 CPC and under Section 96 CPC are concurrent and can be resorted to simultaneously, as one does not debar the other.

Elaborating on the subject the bench observed,

"...The said two remedies are provided by the statute and in law one cannot said to be operating in derogation of the other and though, there is cavalage of opinions on the question whether the power of Appellate Court while testing the validity of an ex-parte judgment and decree is confined to the merits of the case and passing of the decree or that it has also jurisdiction to decide proprietary of the ex-parte proceedings against the defendant".

Deliberating further the bench observed that the Appellate Court's decision to focus on the merits of the case, rather than the defendant's non-appearance, cannot be disputed as the power of the Appellate Court extends to determining the validity of an ex-parte judgment and decree, even if the sufficiency of the cause for nonappearance may not be considered.

Upon examining the application of the Appellant/Defendant under Order 7 Rule 11 of the CPC, which sought the rejection of the plaintiff's plaint the bench concluded that it did not fall within any of the clauses provided in Order 7 Rule 11 CPC, which would have justified the rejection of the plaint, further adding that neither Section 105 nor Section 139 of the Land Revenue Act, Svt. 1996, cited in the application, barred the institution or trial of the plaintiff's suit.

"Even otherwise as well, perusal of the impugned judgment(s) and decree(s) passed by the courts below, seemingly, have been correctly and rightly passed having regard to the case setup by plaintiff/Respondent 1 herein and evidence in exparte led in support thereof", the bench said while finding the appellant's ground for perversity as legally unsustainable.

Case Title: Swarn Salaria Vs Baldev Raj Sharma & Ors.

Citation: 2023 LiveLaw (JKL) 129

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