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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 883 OF 2018 (Arising out of S.L.P.(c) No. 14306 of 2015)

Jayaprakash & Anr.            ….Appellant(s)

VERSUS

T.S. David & Ors.    ….Respondent(s)

                 J U D G M E N T

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

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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,  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/-.

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6. According  to  the  appellants,  since  defendant

Nos. 1 and 2 (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

(Ex-A-1) against defendant Nos. 1 and 2.  

7. The defendants (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

defendants (respondents) jointly and severally.

8.  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

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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.  

9. 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.

10. 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

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liberty to parties to adduce further evidence.  The

case was accordingly remanded to the Trial Court.

11. The plaintiffs  felt  aggrieved by the impugned

judgment  and  have  filed  this  appeal  by  way  of

special leave in this Court.

12.   Therefore, the short question, which arises

for consideration in this appeal, is whether the High

Court  was  justified  in  remanding  the  case  to  the

Trial Court for its de novo trial.

13. Heard Mr. C.S. Rajan, learned senior counsel

appearing  for  the  appellants  and  Mr.  Thomas  P.

Joseph, learned senior counsel for respondent Nos.

3  &  4  and  Mr.  C.K.  Sasi,  learned  counsel  for

respondent Nos. 1 & 2.

14. Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

find no merit in this appeal.

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15. In our opinion, 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.

16. It is not in dispute that all the four defendants

(1  to  4)  suffered  ex  parte decree  on  27.02.2004

jointly and severally. It is also not in dispute that

only defendant Nos. 3 and 4 applied to the Court for

setting aside the decree under Order 9 Rule 13 of

the Code. This application was allowed by the Trial

Court by order dated 20.12.2005 which resulted in

setting aside of the entire ex parte decree against all

the defendants, including defendant Nos. 1 and 2

though they did not apply for its setting aside. The

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suit was accordingly restored to its file for fresh trial

on merits.

17. 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.

18. Be that as it may, in our considered opinion,

after  the  suit  was  restored  at  the  instance  of

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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 suit once restored despite

their non-appearance in the first round of trial  in

the suit and in Order 9 Rule 13 proceedings.  

19. The  Trial  Court,  however,  again  decreed  the

suit by judgment/decree dated 20.02.2007 ex parte

against  defendant Nos.  1 and 2 but after hearing

only  defendant Nos.  3 and 4.    It  is  against  this

judgment  and  decree  which  was  impugned  in

appeal by defendant Nos. 3 and 4, which was again

set aside by the High Court by impugned judgment

resulting in remand of the case to the Trial Court for

fresh  trial  on  merits  giving  rise  to  filing  of  this

appeal by the plaintiffs.   

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20. As mentioned above, though we are inclined to

uphold the remand order, but that we do so on the

basis of aforementioned two grounds noticed by us

in the proceedings in the suit and in Order 9 Rule

13 proceedings.  The two legal infirmities noticed by

us in the proceedings call for remand of the case to

the Trial Court for fresh adjudication of the civil suit

on merits in accordance with law.

21. In  the  light  of  the  foregoing  discussion,  the

appeal fails and is accordingly dismissed.  

22. 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.

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23. So  far  as  defendant  Nos.  3  and  4  are

concerned, they are already served and hence they

are not entitled to any notice.

24. Parties to appear before the Trial Court in the

Suit  on  05.02.2018  to  enable  the  Trial  Court  to

proceed  in  the  trial  as  directed  above.  The  Trial

Court  will  decide  the  suit  on  merits  strictly  in

accordance with law expeditiously.   

………...................................J. [R.K. AGRAWAL]

                                     …...……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; January 25, 2018