BHANU KUMAR JAIN versus ARCHANA KUMAR AND ANR.

Citation: [2004] SUPP. 6 S.C.R. 1104 · Decided: 17-12-2004 · Supreme Court of India · Bench: N. SANTOSH HEGDE · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
BHANU KUMAR JAIN 
v. 
ARCHANA KUMAR AND ANR. 
DECEMBER 17, 2004 
[N. SANTOSH HEGDE, B.P. SINGH AND S.B. SINHA, JJ.] 
Code of Civil Procedure, 1908 : Section 96(2), Order IX rules 7 & 
13, Order 22 rule 10 and order 1 rule 10 
C 
Section 96(2)-Appeal against Ex parte decree-Maintainability-
Application under 09 r.13 for setting aside ex parte decree dismissed till 
Supreme Court-Held, Appeal maintainable on merits-Contention raised 
in the application under 09 r.13 can't be raised. 
D 
Order 9 r. 7-Applications under-Stage of-Application under rule 7 
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F 
when an order posting a suit for ex-parte hearing is passed only and not 
when the hearing is complete. 
Res judicata-Applicability-Applicable in different stages of the same 
proceeding-Debars a court from exercising its jurisdiction. 
Doctrines : 
Doctrine of issue estoppel-Applicability-lssue decide against a 
party-Estopped from raising the same in the latter proceeding. 
Doctrine of 'cause of action' estoppel-Applicability of-Identical 
issues raised in two different proceeding-Latter proceeding to be dealth 
with similarly as done in the previous proceeding. 
Plaintiff filed suit for partition of suit premises. On the date fixed 
G for evidence, nobody appeared for the defendants even after adjourn-
ments whereafter application was filed by the plaintiff that he had 
closed his evidence. Cost of Rs. 200 was imposed on the defendants with 
a stipulation that it cost was not paid, the right of cross-examination will 
be closed. On the next date defendant No. 1 was again absent, the case 
H was posted ex parte against her and, cost having not been paid, the right 
1104 
B.K. JAIN v. ARCHANA KUMAR 
1105 
to cross examine was forfeited. On the date fixed for final argument, the A 
defendant No. 1 did not appear and the case was posted for delivery of 
judgment, on which date an application under 09 r7 was filed by the 
defendants (Respondents herein) for setting aside the order by which the 
suit was posted for ex parte hearing. The said application wa-: rejected 
and a preliminary decree for partition in favour of the plaintiff was B 
passed. Application under 09 rl3 for setting aside the ex parte decree 
was dismissed and the appeal under 043 rl thereagainst as well. The 
special leave petition filed against the appellate order came to be dis-
missed as withdrawn. Thereafter, the defendants filed regular First 
appeal in the High Court which was allowed. In the meanwhile the 
plaintiff transferred his right, title and interest in favour of the present 
appellant. Hence, this appeal. 
It was contended by the appellant that subject matter of the ap-
plication under 09 R13 and the regular First appeal being the same,. 
allowing two parallel to continue is against public policy and, in any 
event, the claim of the respondent was hit by the Doctrine of issue 
Estoppel. As regards the counter claim of the respondent No. 2 it was 
contended that it was directed only against his mother in law and thus 
it could not have been enforced against plaintiff. 
The respondents, on the other hand, contended that they were 
entitled to maintain an appeal against the ex parte decree and, in any 
event, were entitled to assail the judgment on merit of the matter. As 
regards the counter claim of respondent No. 2, it was contended that 
even if no written statement was filed the court may direct the parties 
to adduce evidence in which event the court may pass a decree only 
upon the satisfaction that the plaintiff has been able to prove his case. 
The restricted statutory right. upon a party to the suit under Section 
96(2) will always be available to assail the judgment if the plain tiff fails 
to prove his case. Contention on the issue that the appellant has no locus 
standi to maintain this appeal, as upon the death of the original plaintiff 
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he has not been substituted in his place (in the proceeding pending. G 
before the High Court) was also advanced. 
Allowing the appeal, the Court held 
HELD : 1.1. Order 9 Rule 7 of the Code postulates an application 
for allowing a defendant to be heard in answer to the suit when an order H 
1106 
SUPREME COURT REPORTS {2004] SUPP. 6 S.C.R. 
A 
posting a suit for ex-parte hearing was passed only in the event the suit 
had not been heard as in a case where hearing of the suit was complete 
and the court had adjourned a suit for pronouncing the judgment, an 
application under Order 9 Rule 7 would not be maintainable. [1115-

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