OM PRAKASH versus AMARJIT SINGH & ANR.

Citation: [1988] SUPP. 2 S.C.R. 362 · Decided: 10-08-1988 · Supreme Court of India · Bench: A.P. SEN, M.N. VENKATACHALIAH · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
c 
D 
OM PRAKASH 
v. 
AMARJIT SINGH & ANR. 
AUGUST 10, 1988 
[A.P. SEN AND M.N. VENKATACHALIAH, JJ.] 
Civil Procedure Code, 1908: Section 105(2)-0rder 9, Rule 7-
Application for setting aside order placing defendant ex parte dismissed 
by trial court as unsigned-High Court in revision remitting application 
for disposal after allowing defendant to affix signature-Application 
dismissed by trial court as time barred-Suit for specific performance 
decreed on basis of witnesses examined in ex parte-District Court 
affirming that application was time barred, but remanding suit for fresh 
disposal-Remand order-Not appealed against-Assuming finality-
Whether defendant entitled to adduce fresh evidence and recall witnesses 
examined ex parte, on remand. 
Specific Relief Act, 1963: Sections 20 and 34-Suit for specific 
performance-Grant of relief-Discretionary-Equitable and discre-
tionary jurisdiction of Court-When can be exercised. 
In a suit for specific enforcement of an agreement to sell the suit 
E 
property filed by respondent No. I, the appellant was placed ex parte for 
default of non-appearance, after he entered appearance and filed his 
written statement. Thereafter, the appellant's application under Order 
IX, r. 7 of C.P.C. for setting aside the above order was dismissed for 
default. After respondent No. I examined two of his witnesses, appel-
lant tiled an unsigned application for setting aside the aforesaid orders. 
F 
This was also dismissed by the trial court because it was unsigned. The 
High Court in revision, allowed the appellant's prayer, and remitted 
the application for fresh disposal, after affording an opporturdty to the 
appellant to sign the application. Thereafter the appellant signed the 
application, but it was again rejected by the trial court, as barred by 
lime, reckoning the date of affixture of signature as the date of its tiling, 
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and the suit was decreed on the basis of evidence of two witnesses 
examined for the plaintiff when the appellant was ex parte. 
On appeal, District Judge concurred with the trial court's view 
that the appliq11ion for setting aside the dismissal order and the ex 
parle order was barred by lime, but set aside the decree holding that 
H the decree was not in accordance with Jaw and not executable for a 
362 
" 
OM PRAKASH v. AMARJIT 
363 
number of reasons and remanded the suit to the trial court for a fresh 
disposal, after giving an opportunity of hearing to both parties. 
A 
On remand, the trial court dismissed the suit. It held that the 
remand order having been upheld, the dismissal of the appellant's 
application for setting aside the order placing the appellant ex parte, 
must be understood to have excluded from the scope of the proceedings 
B 
on remand, any entitlement of appellant to recall the witnesses 
examined when the appellant was ex parte. The District Judge, in 
appeal, confirmed this decision. The High Court rejected appellant's 
second appeal in limine. 
In the appeal tiled before this court, on behalf of the appellant, it C 
was contended that the trial court should have tried the suit de-novo by 
affording an opportunity to both the parties to adduce e~ldence afresh, 
and that the scope of the remand also entitled the appellant to have the 
two witnesses examined earlier for the plaintiff recalled for cross• 
examination. 
Allowing the appeal, 
HELD: 1.1 An order, which is appealable under Order 43, Civil 
Procedure Code, if not appealed against, becomes final and its correct· 
ness is no more open to examination in view of s. 105(2) of the Code. [368C) 
Nainsingh v. Koonwarjee, [1971) l SCR 207 relied on. 
In the instant case, the order of remand, not .having been 
appealed against by either side, had assumed finality. Hence the Juris· 
diction of the trial court was circumscribed and fettered by the order of 
D 
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remand. [368E] 
F 
1.2 It is true that it would not be necessary for a party to gel rid 
of an order placing him ex parte if the party wishes to participate in the 
proceedings at any particular stage onwards, provided that he does not 
seek to be relegated to the position he would have occupied if he had 
appeared at the earlier hearing or hearings and does not seek to set 
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back the hands of the clock. It means that he must accept all that has 
gone before and be content to proceed from the stage al which he has 
come in. [368F) 
Sangram Singh v. Election Tribunal, Kotah,, Bhurey Lal Baya, 
[1955] 2 SCR land Arjun 

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