JAYAPRAKASH & ANR. versus T. S. DAVID & ORS.

Citation: [2018] 1 S.C.R. 262 · Decided: 25-01-2018 · Supreme Court of India · Bench: R.K. AGRAWAL · Disposal: Dismissed
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Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 1 S.C.R.
JAYAPRAKASH & ANR.
v.
T. S. DAVID & ORS.
(Civil Appeal No. 883 of  2018)
JANUARY 25, 2018
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
Code of Civil Procedure, 1908 – Or.IX, r.13 – Setting aside of
ex parte decree – Suit for specific performance of agreement for
sale of suit property filed by appellants on the ground that
respondents-defendant nos.1 and 2 failed to complete sale
transaction as per the terms of agreement despite taking the advance
money from appellants and instead sold the suit properties to
defendant nos.3 and 4 – Respondents remained ex parte since
inception – Ex-parte decree passed against respondents jointly and
severally – Defendant no.3 and 4 applied for setting aside the ex
parte decree under Or.IX, r.13 – Trial court 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.1 and 2 remained ex
parte – Trial court again decreed the suit against all the four
defendants – Defendant nos.3 and 4 filed appeal before High Court
– High Court allowed the appeal and again remanded the case to
trial court for fresh trial – Whether High Court was justified in
remanding the case to trial court for its denovo trial – Held:
Defendant nos. 1 and 2 were entitled to a notice of the proceedings
under Or.IX, r.13 in terms of local amendment made by the State of
Kerala in the first proviso to Or.IX, r.13 wherein the words “after
notice to them” were inserted – This local amendment made in the
first proviso was applicable to defendant nos. 1 and 2 – 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
one irregularity committed by the trial court while restoring the entire
suit, though it was for the benefit of defendant Nos. 1 and 2 – After
the suit was restored at the instance of defendant nos. 3 and 4, the
trial court committed another error inasmuch as it again did not
issue fresh notice of the suit to defendant nos. 1 and 2 –  In other
words, defendant nos. 1 and 2 were entitled for a fresh notice of the
[2018] 1 S.C.R. 262
262
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suit once restored despite their non-appearance in the first round
of trial in the suit and in Or.IX, r.13 proceedings – The two legal
infirmities call for remand of the case to the trial court for fresh
adjudication of the civil suit on merits in accordance with law –
Specific performance – Decree – Ex-parte decree – Notice.
Dismissing the appeal, the Court
HELD: 1. 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.
[Para 22][266-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 883 of
2018.
From the Judgment and Order dated 05.11.2014 of the High Court
of Kerala at Ernakulam in RFA No. 541 of 2007.
C. S. Rajan, Sr. Adv., A. Raghunath, Ms. Pushpa Devi Sikri, Advs.
for the Appellants.
Thomas P. Joseph, Sr. Adv., V. Sreedha Reddy, Abhijit Sengupta,
Jayant Muthraj, C. K. Sasi, Advs. for the Respondents.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J. 1. Leave granted.
2. This appeal is filed by the plaintiffs against the final judgment
and order dated 05.11.2014 passed by the High Court of Kerala at
Ernakulam in R.F.A. No.541 of 2007 whereby the High Court allowed
the appeal filed by defendant Nos. 3 & 4 (respondent Nos.1 & 2 herein)
and set aside the judgment and decree dated 20.02.2007 passed by the
sub-Court, Kottayam in O.S. No.337 of 2001.
3. In order to appreciate the short controversy involved in the
appeal, few relevant facts need mention hereinbelow.
4. The appellants are the plaintiffs whereas the respondents are
the defendants in the civil suit out of which this appeal arises.
5. The appellants filed a civil suit being O.S. No. 337/2001 against
the respondents (defendants) in the Court of Principal Sub-Judge,
JAYAPRAKASH v. T. S. DAVID
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SUPREME COURT REPORTS
[2018] 1 S.C.R.
Kottayam for specific performance of the agreement (Ex-A-1) for sale
of suit properties to the appellants by the respondents (defendant Nos.1-
4) for a total consideration of Rs.5,70,000/-.
6. According to the appellants, since defendant Nos. 1 and 2
(original owners of the su
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