Thursday, 14 November 2013

suit was not instituted by a duly authorised person.

  suit was not instituted by a duly authorised person.

Be that as it may, we may also now look to the second contention which was advanced before us and was hotly debated.   It was submitted that the suit was instituted in the name of the proprietorship firm and, therefore, the said suit was not maintainable.   The learned trial court also upheld the said contention and dismissed the suit on that score also. Therefore, the aforesaid plea is very relevant and calls for in depth consideration by us.    A proprietorship firm has no legal entity like a registered firm.   A suit cannot be instituted in the name of an unregistered proprietorship firm and the said suit is to be instituted in the name of the proprietor.    It is an admitted position in the plaint that the plaintiff is a proprietorship firm.   There is, however, no statement made in the plaint by the plaintiff as to who is the proprietor of the firm.    Shri Amitabh Sharma is described in the cause title of the plaint only as an authorised representative.    The name of the proprietor of the said proprietorship firm is not given in the plaint.   The original plaint which is placed on record has a verification.    However, the signature appended to the said verification appears to be that of Shri A.K. Pandey, who was examined in the suit as PW-2, as the main witness.   He stated in his cross-examination that he was the proprietor of the plaintiff firm.   He also stated in his cross-examination that the plaint was signed, filed and verified by him.    PW-1 also in his cross-examination stated that the plaintiff firm was a proprietorship firm and that Shri A.K. Pandey was the sole proprietor of the plaintiff firm.   It was, however, stated by him that the plaintiff firm was a registered firm but he could not state as to when the said firm was registered.    It is apparent that Shri A.K. Pandey had not instituted the suit.   He had only come as a witness.   Even in the amended plaint the suit was shown to have been instituted in the name of the firm.    A sole proprietorship firm is not a legal entity which can sue or be sued in its own name.  Such suit relating to or against the affairs or claims of a proprietorship concern has to be brought or made against the person who is the sole proprietor of the firm. The plaintiff was described to be a proprietorship firm and represented through Shri Amitabh Sharma.    Shri Amitabh Sharma had neither signed the plaint nor he signed the power which was filed in the present case.

In that view of the matter, we agree with the findings and the conclusions recorded by the trial court that the suit was not instituted by a duly authorised person.   Accordingly, we find no infirmity in the judgment and order passed by the learned trial court dismissing the suit on the ground that the suit was not properly instituted.   
                      We accordingly dismiss the appeal
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IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT: SUIT NOT INSTITUTED BY A DULY AUTHORISED PERSON

R.F.A. No. 349 of 2003.


Date of decision :  23rd November, 2004.


M/s. Miraj Marketing Corporation               .......  Appellant.
                                                                   Represented by Mr.Rajat Aneja,Advocate.
                    
Versus

M/s. Vishaka Engineering and another          .......  Respondents.
                                                                   Represented by Mr.Ajit Pratap Singh,
     Advocate, with Mr.D.Rajeshwar Rao and
                                                                   Mr.P.K.Dubey, Advocates.

CORAM:

Hon'ble Justice Dr. Mukundakam Sharma.
Hon'ble Ms. Justice Gita Mittal.

Dr. Mukundakam Sharma, J :

1.                  This appeal arises out of the judgment and order passed on January 31, 2003 by the learned Additional District Judge in Suit No. 121/2000 dismissing the said suit.  

2.                  The suit was instituted by the appellant as the plaintiff against the respondents-defendants.   In the cause title of the plaint, the appellant-plaintiff described itself as follows:-
                    
                     "M/s. Miraj Marketing Corporation (Regd)
                     206, IInd Floor, Miraj Plaza,
                     East Patel Nagar,
                     Delhi-8"

                     [Through its authorised representative]
                     Mr.Amitabh Sharma
The original plaint filed by the plaintiff was amended subsequently and in the amended plaint also the appellant-plaintiff described itself as above.   In paragraph 1 of the plaint the plaintiff stated that the plaintiff is a proprietorship firm having its office at the aforementioned address.   The said suit was instituted by the appellant-plaintiff seeking for a decree for recovery of Rs.4,34,600/- along with pendente lite and future interest from the date of institution of the suit till realisation. 

3.                  In the written statement filed by the defendants, certain preliminary objections were raised.   One of the said objections was that the plaint had not been signed or verified, or the suit had not been filed by a duly authorised person and that Mr. Amitabh Sharma was neither the proprietor nor a duly authorised representative of the plaintiff firm and as such Mr. Amitabh Sharma was not competent or empowered to file, sign and verify the plaint and hence the said suit of the plaintiff was liable to be dismissed on the said ground.    

4.On the pleadings of the parties, the trial court framed the following issues:-
1.                  Whether the plaintiff is entitled to the suit amount?  OPD.
2.                  Whether the suit of the plaintiff is barred by section 69(2) of the Partnership Act?   OPD.
3.                  Whether the suit of the plaintiff is barred U/O 13 Rule 10 CPC?    OPD.
4.                  Whether the suit of the plaintiff is not signed and verified by a duly authorised person?   OPD.
5.                  Whether the plaintiff is entitled to the interest, if so, at what rate?   OPP.
6.                  Relief.

5.During the course of trial the appellant-plaintiff examined Shri Ajay Gogia as PW-1 and filed his examination-in-chief by way of an affidavit.   The appellant-plaintiff also examined Shri A.K. Pandey as PW-2 and also filed his examination-in-chief through an affidavit whereas the respondents-defendants examined Mr.Sanjeev Kapil as DW-1.   

6.In the verification of the affidavit filed by way of evidence filed by Shri Ajay Gogia as PW-1, it was stated thus:-
"Verification:
      Verified on this 30th day of July 2002, that the contents of the above affidavit is (are) true and correct to the best of my knowledge and nothing material has been concealed therefrom."
Similar verification was also done in the affidavit filed by way of evidence by Shri A.K. Pandey as follows:-
"Verification:
                     Verified on this 30th day of July 2002 that the contents of the above affidavit is true and correct to the best of my knowledge and nothing material has been concealed therefrom."

3.                  The learned Additional District Judge thereafter heard the arguments in the said suit and by judgment and order passed on January 31, 2003 he dismissed the said suit filed by the plaintiff in the light of the evidence recorded by him as against Issues No. 1, 4 and 5.    Issues No. 1 and 5 were taken up first.    While discussing the said issues, the learned trial court referred to the aforesaid verifications appended to the affidavits by way of evidence by the witnesses of the plaintiff.   In the light of the said verifications in both the affidavits it was held that it could not be said that the verification of the two affidavits was in compliance with Order 19 of the Code of Civil Procedure. The trial court further held that the affidavits/evidence filed by the plaintiff was not proper and legal evidence and no reliance could be placed safely on them and, therefore, the said affidavit could not be read in evidence.   It was also held that as the plaintiff had failed to lead any evidence therefore there was no evidence on record, and consequently the plaintiff had failed to discharge the onus. The said issues were decided in favour of the defendants and against the plaintiff.

4.                  So far issue No. 4 is concerned, it was held by the learned trial court that the present suit had been brought in the name of M/s. Miraj Marketing Corporation through one authorised representative Mr. Amitabh Sharma who was not the proprietor and no authority of Mr. Amitabh Sharma was proved on record.    Mr. A.K. Pandey, PW-1, filed affidavit by way of evidence  wherein he had stated that he was the proprietor of the plaintiff firm and that the plaintiff was a sole proprietorship firm.  He had not stated in his affidavit that the plaint was signed and verified by him.   

5.                  It was submitted by the counsel for the plaintiff during the course of his arguments before the trial court that the plaint had been filed by the proprietor, Shri A.K. Pandey, on behalf of the proprietorship firm.
                 As there was no statement as to who was the proprietor of the firm in the plaint nor it was mentioned as to who had signed the plaint, it was held by the trial court that a proprietorship firm is not a legal entity and, therefore, the suit could not be brought in the firm's name.   The suit was accordingly dismissed.  
                Being aggrieved by the said judgment, the present appeal is filed on which we have heard the learned counsel appearing for the parties and gone through the record.

6.                  It was submitted by the learned counsel appearing for the appellant that the verifications/affidavits filed by way of evidence were in the nature of evidence and the said affidavits were properly verified as required under Rule 3 of Order XIX of the Code of Civil Procedure.    It was submitted by him that both the deponents, namely, Shri Ajay Gogia and Shri A.K. Pandey, in their verifications in the affidavits had stated that the contents of the affidavits were true and correct to the best of their knowledge and, therefore, the said verifications in both the affidavits satisfied the requirements of Rule 3 of Order XIX of the Code of Civil Procedure.   

7.                  Order XIX of the Code of Civil Procedure permits a court to receive evidence by way of affidavit for proving particular fact or facts. Affidavits are not included in the definition of 'evidence' in section 3 of the Evidence Act and can be used as evidence only if, for sufficient reasons, a  court passes an order to that effect under Order XIX Rule 1 or 2 of the Code of Civil Procedure.   As to how an affidavit is to be filed is also set out in Rule 3 of the said Order XIX.     It is provided therein that the affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted provided that the grounds thereof are stated.    

8.                  In the case entitled A.K.K. Nambiar v. Union of India, AIR 1970 S.C. 652, it was held by the Supreme Court that in the absence of proper verification, affidavits could not be admitted in evidence.  
                      We may also advert to the judgment of this court reported as D.N. Gupta v. Jaswant Singh, AIR 1982 Delhi 250, it was held that where an affidavit seeking to leave to defend application is not properly verified it cannot be allowed to be amended but the deponent may be given an opportunity to file another affidavit.  
                  In the case of Musebhai Jivanbhai Jivani vs. Special Land Acquisition Officer, (1999-2) 19 Gujarat Law Journal 108, the Division Bench of the Gujarat High Court has held that in case of an affidavit what is required to be declared is the source of knowledge whether it is personal knowledge or knowledge on information based on record or on the basis of the legal advice, etc.    But to say that the deposition is true to the best of own knowledge is no affidavit and is not in accordance with the provisions of Order XIX, Rule 3 of the Code of Civil Procedure and that such an affidavit does not inspire any confidence so as to act upon the same.   It was held that to say that it is true to the best of own knowledge is no affidavit and is not in accordance with the provisions of Order XIX Rule 3 of the C.P.C.   

9.                  The learned trial court has also referred to the decisions of the Supreme Court in A.K.K. Nambiar (supra) as well as some other decisions of this Court and other High Courts and on appreciation thereof held that an affidavit must contain the evidence of the deponent as to such facts of which he is in a position to speak of his knowledge and such facts must be verified on personal knowledge, and only in respect of those facts which are within his knowledge.   The facts which are not within his knowledge can be verified on information or belief, and that the source of information or the grounds of belief must be clearly stated so that the opposite party gets an opportunity to verify the averments and make a grievance.    Based thereon, the learned Judge concluded that the verifications of the affidavits filed on behalf of the appellant were not in compliance of Order XIX of the Code of Civil Procedure.

10.                On examination of the affidavits and the position in law, we find that conclusions drawn by the learned trial court that the verifications of the aforesaid two affidavits are not in compliance with Order XIX of the Code of Civil Procedure are not based on cogent reasons.    It was stated by the aforesaid two deponents in the said verifications of the affidavits that all the statements made in the said affidavits are true and correct to the best of their knowledge.  Hence, according to the deponents, the entire contents of the affidavits were based on their personal knowledge.   Although the said verifications were not sworn as true to the personal knowledge of the deponents, yet in our considered opinion the said verifications substantially comply with the requirement of Rule 3 of Order XIX of the Code of Civil Procedure.     These affidavits and the deposition therein would have to stand to the test of cross-examination.   Examination of the affidavits and evidence on behalf of the appellant in this background shows that PW-2 Shri A.K. Pandey has stated that the affidavit was prepared on the basis of the record being maintained.  There is no such deposition in the affidavit or verification, nor any such record produced.    In the face of such statements, hardly any evidentiary value can be attached to the affidavit by way of evidence on behalf of the appellant.

11.                Be that as it may, we may also now look to the second contention which was advanced before us and was hotly debated.   It was submitted that the suit was instituted in the name of the proprietorship firm and, therefore, the said suit was not maintainable.   The learned trial court also upheld the said contention and dismissed the suit on that score also. Therefore, the aforesaid plea is very relevant and calls for in depth consideration by us.    A proprietorship firm has no legal entity like a registered firm.   A suit cannot be instituted in the name of an unregistered proprietorship firm and the said suit is to be instituted in the name of the proprietor.    It is an admitted position in the plaint that the plaintiff is a proprietorship firm.   There is, however, no statement made in the plaint by the plaintiff as to who is the proprietor of the firm.    Shri Amitabh Sharma is described in the cause title of the plaint only as an authorised representative.    The name of the proprietor of the said proprietorship firm is not given in the plaint.   The original plaint which is placed on record has a verification.    However, the signature appended to the said verification appears to be that of Shri A.K. Pandey, who was examined in the suit as PW-2, as the main witness.   He stated in his cross-examination that he was the proprietor of the plaintiff firm.   He also stated in his cross-examination that the plaint was signed, filed and verified by him.    PW-1 also in his cross-examination stated that the plaintiff firm was a proprietorship firm and that Shri A.K. Pandey was the sole proprietor of the plaintiff firm.   It was, however, stated by him that the plaintiff firm was a registered firm but he could not state as to when the said firm was registered.    It is apparent that Shri A.K. Pandey had not instituted the suit.   He had only come as a witness.   Even in the amended plaint the suit was shown to have been instituted in the name of the firm.    A sole proprietorship firm is not a legal entity which can sue or be sued in its own name.  Such suit relating to or against the affairs or claims of a proprietorship concern has to be brought or made against the person who is the sole proprietor of the firm. The plaintiff was described to be a proprietorship firm and represented through Shri Amitabh Sharma.    Shri Amitabh Sharma had neither signed the plaint nor he signed the power which was filed in the present case.  

12.                In that view of the matter, we agree with the findings and the conclusions recorded by the trial court that the suit was not instituted by a duly authorised person.   Accordingly, we find no infirmity in the judgment and order passed by the learned trial court dismissing the suit on the ground that the suit was not properly instituted.   
                      We accordingly dismiss the appeal.   However, in the facts and circumstances of the case we leave parties to bear their own costs.


                                                                (Dr. Mukundakam Sharma)
                                                                                   Judge


                                                                            ( Gita Mittal )
                                                                                   Judge

23rd November, 2004.





Tuesday, 12 March 2013

suit for specific performance of contract.

Suit for Specific Performance of contract.


"contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious that in the event, they are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is not permissible in law. Therefore, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of the third party in respect of the contracted property they would not, at all, be necessary to be added in the suit for specific performance of the contract for sale. Moreover, the appellant, who has filed the present suit for specific."



Krishnan vs P.Palanisamy on 22 April, 2010
DATED: 22-04-2010
CORAM
THE HON'BLE MR.JUSTICE M.JAICHANDREN
C.R.P.(PD) No.175 of 2009 and
M.P.No.1 of 2009
Krishnan .. Petitioner.
Versus
1.P.Palanisamy
2.M.Gnanathikam
3.M.Gnanathikkam
4.David Livingston
5.James .. Respondents.
PRAYER: Petition filed under Article 227 of the Constitution of India, seeking to set aside the fair and decretal order of the Subordinate Judge, Court at Namakkal, dated 31.10.2008, in I.A.No.11 of 2003, in O.S.No.635 of 2001.
For Petitioner : Mr.P.Valliappan
For Respondents: Mr.S.Doraisamy (R1)
O R D E R
This Civil Revision Petition has been filed against the order, dated 31.10.2008, made in I.A.No.113 of 2003, in O.S.No.635 of 2001, on the file of the Subordinate Court, Namakkal.
2. The petitioner in the present civil revision petition is the plaintiff in the suit, in O.S.No.635 of 2001. The petitioner had filed the said suit against the respondents 2 to 5, for specific performance, to enforce the agreement for sale, dated 27.3.1991, by which the petitioner had agreed to purchase the suit property, measuring an extent of 600 Sq.Ft, for a sale consideration of Rs.48,000/-. It had also been stated that on the date of the agreement for sale the petitioner had paid Rs.20,000/-, as advance and the balance amount of Rs.28,000/- was to be paid, on or before 26.3.1995, on receipt of which the respondents 2 to 5 were liable to execute the sale deed in favour of the petitioner.
3. On 20.1.1995, a further sum of Rs.15,000/- had been paid by the petitioner and the period for performance had been extended till 19.1.1999, by making the necessary endorsement. The petitioner has also stated that he is in possession of the suit property. However, the respondents 2 to 5 were evasive and not inclined to execute the sale deed. They had also threatened the petitioner asking him to vacate the suit property. In such circumstances, the petitioner has filed the suit, in O.S.No.635 of 2001, on the file of the Subordinate Court, Namakkal, praying for a decree for specific performance.
4. While so the first respondent herein had filed an interlocutory application, in I.A.No.113 of 2003, in the suit, in O.S.No.635 of 2001, praying that the trial Court may be pleased to implead him, as the 5th defendant in the said suit, stating that he had purchased the suit property from a third party. Even though the petitioner had resisted the said application by raising various grounds, the trial Court, by its order, dated 31.10.2008, had allowed the interlocutory application filed by the first respondent. The petitioner has filed the present civil revision petition before this Court, challenging the order of the learned Subordinate Judge, Namakkal, dated 31.10.2008, made in I.A.No.113 of 2003.
5. The learned counsel appearing on behalf of the petitioner had stated that the order of the learned Subordinate Judge, dated 31.10.2008, to implead the first respondent, as the fifth defendant in the suit, in O.S.No.635 of 2001, is patently erroneous and manifestly unjust. The learned Judge had failed to note that a third party to the sale agreement is not entitled to be impleaded, as a party to the suit for specific performance filed for enforcing the agreement for sale. The learned Judge had failed to see that the presence of the first respondent is not necessary for the disposal of the suit claim, especially, when no relief is being claimed against the said third party.
6. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions:
6.1. In Anil Kumar Singh V. Shivnath Mishra @ Gadasa Guru (1995 AIR SCW 1782), the Supreme Court had held as follows:
"The obtaining of a decree and acquiring the status as a co-owner during the pendency of a suit for specific performance, is not obtaining, by assignment or creation or by devolution, an interest. Therefore, Order 22, Rule 10 would not be applicable. Equally, Order I, Rule 3 is not applicable to the suit for specific performance because admittedly, the respondent was not a party to the contract. Since the suit is based on agreement of sale said to have been executed by the sole defendant in the suit, the subsequent interest said to have been acquired by the respondent by virtue of a decree of the Court is not a matter arising out of or in respect of the same act or transaction or serious of acts or transactions in relation to the claim made in the suit. In order that a person may be considered a necessary party, defendant to the suit, the conditions precedent must be (1) that there must be a right to some relief against him in respect of the dispute involved in the suit; and (2) that his presence should be necessary to enable the Court to effectually and completely to adjudicate upon and settle all the questions involved in the suit. Since the respondent is not a part to the agreement of sale, it cannot be said that without her presence the dispute as to specific performance cannot be determined. Therefore, she is not a necessary party."
6.2. In Vijay Pratap and Others V. Sambhu Saran Sinha and others (AIR 1996 SC 2755), it had been held as follows:
"This petition is against an order dismissing the application under Order 1, Rule 10, C.P.C filed by the petitioners to come on record in place of their father. The suit was laid for specific performance wherein the father during his life time is alleged to have entered into compromise and requested to delete his name from the arraignment of the parties as respondent No.1. The deletion of the first respondent came to be made after his demise. Pending suit before compromise memo was recorded, the petitioners sought to come on record under Order I, Rule 10 being that they were necessary and proper parties. The trial Court recorded the finding that deletion had taken place and observed as under: "At present I am not giving any finding with respect of Exhibit-6 and compromise petition in the light of an objections raised by petitioners in their other two petitions. Simple I have stated the facts which are available on record. If these petitioners are made parties in the suit as prayed then dispute will arise between petitioners and plaintiff No.1 with respect of compromise and Exhibit-6. Its result will be that there will be dispute between the co-plaintiffs with respect of their right, title and interest in suit property. This suit will turn into a regular title suit. To decide right, title and interest of co-plaintiffs in suit property is beyond the scope of this suit. Suit for specific performance of contract can't be turned into a regular Title Suit. So, in my opinion, these petitioners are not necessary and proper parties under Order I, Rule 10, C.P.C."
6.3. In Kasturi V. Iyyamperumal and others (AIR 2005 SC 2813), the Supreme Court had held as follows:
"In a suit for specific performance of a contract for sale the lis between the appellant-purchaser and the respondent-vendor shall only be gone into and it is also not open to the Court to decide whether the third party have acquired any title and possession of the contracted property as that would note be germane for decision in the suit for specific performance of the contract for sale. Two testes by which a person who is seeking addition in a pending suit for specific performance of the contract for sale must be satisfied. Two tests are -(1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party. Applying the said two tests in the present case the third party or strangers to contract are not necessary parties as effective decree could be passed in their absence as they had not purchased the contracted property from the vendor after the contract was entered into. They were also not necessary parties as they would not be affected by the contract entered into between the appellant-purchaser and the respondent-vendor. Therefore order of Courts below allowing the application for addition of parties in the pending suit for specific performance of contract for sale filed at the instance of third party to contract would be illegal and liable to be set aside. In a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant-purchaser and the respondent-vendor and whether contract was executed by the appellant and the respondent for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against the respondent. It is an admitted position that the third party or stranger to contract did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious that in the event, they are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is not permissible in law. Therefore, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of the third party in respect of the contracted property they would not, at all, be necessary to be added in the suit for specific performance of the contract for sale. Moreover, the appellant, who has filed the present suit for specific performance of the contract for sale is dominus litus and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law."
6.4. In Bharat Karasondas Thakkar V. Kiran Construction Co. and others [2008(5) MLJ 424(SC)], the Supreme Court had held as follows:
"A third party or a stranger to a contract cannot be added as a party to a suit for specific performance. The scope of a suit for specific performance could not be enlarged to convert the same into a suit for title and possession. A third party or a stranger to the contract could not be added so as to convert a suit of one character into suit for a different character."
6.5. In Saivasamy Thevar V. Rajasekaran (2008 (6) CTC 630), this Court relying on the decisions reported in Bharat Karsondas Thakkar V. Kiran Construction Co. (2008(6) Scale 355) and Kasturi V. Iyyamperumal 2005(2) CTC 676 (SC), it had been held as follows "Admittedly, the suit in O.S.No.170 of 2001 is for a decree for Specific Performance. The basis for filing the said Suit is a sale agreement executed by the fourth respondent with the revision petitioner on 17.4.1997, in and by which the fourth respondent agreed to sell the suit property to the first petitioner, since deceased. The lis involved in the matter is between the deceased first petitioner and the fourth respondent. The alleged right of the respondents 1 to 3 pertaining to the suit property is altogether a different matter to be agitated by them in an appropriate proceeding. The present suit being one for Specific Performance, the only issue to be decided is about the enforceability of the agreement in question. Such being the position, I am of the view that the learned Trial Judge committed a serious error in impleading the respondents 1 to 3 as party to the suit in O.S.No.170 of 2001. The learned Trial Judge appears to have allowed the application filed by the respondents 1 to 3 for impleading them as a party to the proceeding in a casual manner without making an attempt to see as to whether the junction of the parties sought to be impleaded is absolutely necessary for the disposal of the suit in one way or the other. The right claimed by the respondents 1 to 3 is not related to the claim made by the revision petitioner and as such, the respondents 1 to 3 are unnecessary parties to the suit filed by the revision petitioner for a decree of specific performance. Therefore, I do not find any reason to sustain the order of the learned Trial Judge and accordingly, I am constrained to set aside the order, dated 10.10.2003, in I.A.No.119of 2003, in O.S.No.170 of 2001." 6.6. In Ms.Leelavati V. Sri Venkateswara Finance (2009(7) MLJ 761) this Court had held that, in a suit for specific performance of an agreement for sale, the questions to be decided are a) Whether the sale agreement has been validly executed, b)Whether the sale agreement is enforceable, c) Whether the plaintiff is ready and willing to perform their part of the contract and d) Whether the plaintiff is entitled to get the equitable remedy of specific performance. To decide the said issues the presence of a third party is not required. If the presence of a third party is not essential to decide the issues involved in the suit, impleadment of such a party would only enlarge the scope of the suit, unnecessarily.
7. The learned counsel appearing on behalf of the first respondent had submitted that the first respondent is a necessary and proper party to the suit, in O.S.No.635 of 2001, as he had purchased the suit property, in good faith, for a valid consideration, by a sale deed, dated 7.6.1995. One K.Rani, the owner of the suit property had sold the said property to the first respondent, through her power agent, V.K.Ramanathan, based on the general power of attorney, dated 19.4.1995. Thereafter, a joint patta had also been issued in the name of the first respondent. Further, the first respondent has been in possession and enjoyment of the suit property since the date of its purchase. As such, the first respondent is not a stranger to the suit property and thus, he has shown that he has a fair semblance of title. In such circumstances, it is clear that the first respondent is a proper and necessary party to the suit, in O.S.No.635 of 2001.
8. The learned counsel appearing on behalf of the first respondent had relied on the decision, reported in Sumtibai and others V. Paras Finance Co. Mankanwar (2007(7) Supreme 2010), wherein it had been held as follows:
"In view of the aforesaid decisions we are of the opinion that Kasturis case (supra) is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for imleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced."
9. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the first respondent and on a perusal of the records available and in view of the decisions cited above, this Court is of the considered view that the first respondent is neither a necessary party, nor a proper party to the suit for specific performance filed by the petitioner, in O.S.No.635 of 2001, on the file of the Subordinate Court, Namakkal. The first respondent, claiming to be a purchaser of the suit property from a third party, who is not a party to the agreement for sale, based on which the suit for specific performance has been filed, cannot be impleaded as a party to the proceedings in the suit, as held in Kasturi V. Iyyamperumal and others (AIR 2005 SC 2813).
10. In a suit for specific performance of a contract for sale a third party to the agreement is not entitled to get impleaded, as such impleadment would enlarge the scope of the suit. The lis between the parties to the agreement can only be gone into and it would not be open to the trial Court to decide whether a third party had acquired any title or possession of the suit property, as such an issue would not be germane to a decision in the suit for specific performance of a contract for sale.
11. For the impleadment of a third party, in a suit for specific performance, there must be a right to some relief against the party seeking impleadment, in respect of the controversies involved in the proceedings. Further, the following tests must be satisfied to implead a third party in a suit for specific performance: (a) that there must be a right to some relief against such party in respect of the controversies involved in the proceedings; and
(b) that his presence should be necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit.
Impleadment of a third party cannot be allowed to change the character or the nature of the suit filed for specific performance of an agreement for sale. When the plaintiff in the suit for specific performance of the agreement for sale is the dominus litus he cannot be forced to add parties, against whom he does not seek any relief, unless it is a compulsion of the rule of law.
12. In such circumstances, for the reasons stated above, the impugned order of the trial Court, dated 31.10.2008, made in I.A.No.113 of 2003, in O.S.No.635 of 2001, is liable to be set aside. Accordingly, the civil revision petition stands allowed. No costs. Consequently, connected miscellaneous petition is closed.

Thursday, 31 January 2013

application under 1 rule 10 of cpc.


Who may be joined as defendants.

All persons may be joined in one suit as defendants where-

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and

(b) if separate suits were brought against such persons, any common question of law or fact would arise.



 Suit in name of wrong plaintiff

(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is
necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.-

The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended-

Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.


IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEDURE
Date of Reserve: January 28, 2009
Date of Order: February 04, 2009
IAs No.8285/07, 8287/07 and 7756/08 in CS(OS) No.99/07
SHRI SUDHIR YADAV ...    Plaintiff
Through: Mr. L.S. Rana, Adv.
Versus
SH. RADHEY SHYAM and ORS. ...   Defendants
Through: Ms. Suman Chaudhary, Adv. for applicant
Mr. Awadhesh Kumar, Adv. for applicant/
Legal heirs of D-3 and D-6
IA No. 8285/07
1.  This application under Order 1 Rule 10 CPC has been made by certain applicants to be impleaded
as defendants. However, the entire application does not disclose as to who were the applicants and who
wanted to be impleaded as a defendants. The application is accompanied by an affidavit of one Ms. Babita,
claiming to be mother and natural guardian of the applicants. She had not given the names of the
applicants. The application is liable to be dismissed for want of proper particulars and is hereby dismissed.
IA No.8287/2007 
2.  This application is under Order 1 Rule 10 CPC wherein a prayer has been made that the applicants
may be allowed to be impleaded as defendants. The application is signed by 3 persons as applicants and is
accompanied by affidavit of one Mr. Sanjay. The names of the persons sought to be impleaded as
defendants have not been disclosed in the entire application. However from the affidavit one can make out
that one of the applicants is Mr.Sanjay. The applicants want to be impleaded on the ground that under a
family settlement dated 22nd August, 2004, the share of defendant no.3 (1/8th share in the total land) was
further sub divided among 3 applicants and defendant no. 3 and each of them became owner of 1/32th share
and defendant no. 3 was no more owner of 1/8th share, therefore the 3 applicants were necessary parties to
the suit filed by the plaintiff against defendant no. 3 for specific performance of the agreement to sell. 3.
The agreement to sell relied upon by the plaintif is dated 10th October, 2006. In the agreement to sell,
defendant no. 3 is one of the signatories. There is no mention of any family settlement and defendant no. 3
has been stated to be owner of 1/8th share. The alleged family settlement relied upon by the applicant is an
unregistered family settlement, only a photo copy of which has been placed on record. Prior to filing of the
suit, the plaintiff had also served a notice on defendant no. 3 and another defendants. Even in reply  to
notice, there is no mention of a family settlement between the family and defendant no. 3. It is obvious that
this plea of family settlement has been invented later on after the filing of this suit. I consider that the
applicants cannot be added as parties to a suit for specific performance of an agreement between the
plaintiff and other defendants including defendnat no. 
3.  Family members of defendant no. 3 cannot be impleaded as a party on the basis of an alleged
family settlement. They are neither necessary party nor proper party, neither their impleadment is necessary
for adjudication of the issues between the parties. The application is hereby dismissed. IA No.7756/2009  4.  This application under Order 1 Rule 10 CPC has been made by Kundan Lal s/o Dalip Singh for his
impleadment as defendant in the suit. In the application, he has stated that the plaintiff and defendants no. 1
to 8 filed the present suit in connivance with each other with a motive to grab a residential plot of land
bearing khasra no. 105/134 in village Pandwala Kalan, New Delhi which fell in the share of the applicant in
an oral partition/family settlement during the lifetime of Sh. Dalip Singh. Applicant was in occupation of
this residential plot which was fully built up and he had water connection and electricity connection over it. 
5.  In the entire application, applicant has not stated what was the area of this plot and who other
persons were living in it. He had claimed that an oral partition was effected during lifetime of Sh. Dalip
Singh, his father and therefore he was a necessary party. 
6.  A perusal of agreement and documents show that the suit has been filed for specific performance
of the agreement to sell in respect of shares of Sh. Radhey Sham, Master Mahender Singh, Sh. Ishwar
Singh, Sh. Suraj, Sh. Bishamber Singh, Smt. Sarti and Sh.Kishan Chand. Sh. Dalip singh, the original
owner had 8 sons and each of his sons inherited only 1/8th share of his property. An agreement to sell was
entered into by 7 of the sons of Sh. Dalip Singh in respect of their 7/8th share and Sh. Kundal Lal is not a
party to the agreement and neither has entered into an agreement to sell with the plaintiff. I consider that
Sh. Kundal Lal who is not a party to the agreement to sell and whose share was not sought to be purchased
by the plaintiff, is not a necessary party. The application is liable to be dismissed and is hereby dismissed.
CS(OS) No.99/07 List on 26th March, 2009. 
Sd./-
February 04, 2009       SHIV NARAYAN DHINGRA J.

application for setting aside the ex parte decree.



Setting aside decree ex parte against defendant

In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff s claim]

[Explanation.-Where there has been an appeal against a decree passed exparte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.


Delhi High Court.
Mehta Brothers And Ors. vs Bank Of India And Anr. 
Author: D Gupta
Bench: D Gupta, M Mudgal
JUDGMENT
Devinder Gupta, J.
1. These two appeals arise out of common order passed by learned Single Judge on 28.2.1999 allowing the application of defendant No. 6 for setting aside the ex parte decree and condoning the delay in filing the application for setting aside the ex parte decree.
2. In the suit filed by Bank of India out of which this appeal has arisen the status of parties is that Bank of India, the appellant in FAO(OS) No. 100/91 is the plaintiff; M/s. Mehta Brothers and others, the appellants in FAO(OS). No. 78/91 are defendants 1 to 5 and Deutsche Bank Asia, formerly known as European Asian Bank, respondent No. 2 in FAO (OS). No. 78/1991 and respondent No. 6 in FAO(OS). No. 100/91 is defendant No. 6.
3. Facts is detail have been mentioned by the learned Single Judge in the impugned order and need not be stated again by us. However, briefly some of the important facts are being stated. A suit for the recovery of Rs. 91,58,480.09 was filed by the plaintiff against the defendants on 30.8.1982 inter alia alleging that on the request of defendants 1 to 5 on 26.6.1979 the plaintiff established an irrevocable Letter of Credit for US $ 6,10,900/- (equivalent to about Rs. 50,00,000/-) in favour of M/s. Bentrex & Co., Singapore; the Letter of Credit was expressly made subject to the terms and conditions of Uniform Customs and practice for Documentary Credits (1974 Revision). International Chamber of Commerce Publication No. 290; on 1.9.1979 the beneficiary drew a site draft for an amount of Us$ 6,10,740.00 and presented the same along with other documents to defendant No.6 for negotiation; on 4.9.1979 defendant No. 6 after negotiating the documents dispatched the original and duplicate set of the documents from Singapore directly to the Chandni Chowk Branch of the plaintiff and called upon the New York Branch of the plaintiff for reimbursement under the said credit; the plaintiff alleged that this was done without furnishing the necessary certificate of compliance of credit terms, which were required under the credit. On 5.9.1979 New York Branch of the plaintiff on receipt of the aforesaid claim, in good faith paid on account/without prejudice the said amount of Us $ 6,10,740.00; on 13.9.1979 the plaintiff received the documents from defendant No. 6 and found that there were many discrepancies in the documents and they were not as per the Uniform Customs and Practice of Documentary Credits (1974 Revision); on 14.9.1979 by a talex the plaintiff pointed out to defendant No. 6 some of the discrepancies in the documents and stated that documents were being held at its risk and responsibility; defendant No. 6 was requested to reverse the reimbursement already claimed by it from New York Branch of the plaintiff; on the same day defendant No. 6 by its talex to the plaintiff rejected plaintiff's claim alleging that the discrepancies were of minor nature and all the terms and conditions of letter of credit were complied with: on 14.9.1999 defendant 1 to 5 also did not honour and retire the documents under the Letter of Credit on the ground that there were discrepancies in the documents and they were not at all in accordance with the terms of letter of credit. The plaintiff further alleged that defendant No. 6 failed and neglected to reply and reimburse to the plaintiff the amount received by it from the New York Branch of the plaintiff; defendant No. 6 had failed to furnish to the New York Branch of the plaintiff the Certificate of Compliance in terms of the said Letter of Credit, for that reason also defendant No. 6 acted in breach of its obligation under the letter of credit to do so and was, therefore, not entitled to claim and retain the payment received thereunder; despite repeated requests and reminders defendant Nos. 1 to 5 also did not honour and retire the said documents and went on contending that there were discrepancies in the documents; Defendant 1 to 5 also stated that their claim with Insurance Company was likely to be finalised soon and the amount payable thereunder shall be received by the plaintiff directly from the Insurance Company for the adjustment of the amount due and payable by them under the said Letter of Credit. As defendants No. 1 to 5 as also defendant No. 6 denied their respective liability to repay to the plaintiff the amounts claimed by plaintiff and the plaintiff was in doubt as to the person from whom it was entitled to redress, the plaintiff joined defendants Nos. 1 to 5 as well as defendant No. 6 as parties to the suit in order to determine the question as to which of the defendant i.e. defendant No. 1 to 5 or defendant No. 6 liable to the plaintiff and as to what extent; If separate suits were brought against defendant Nos. 1 to 5 and defendant No. 6 common question of law and fact would arise, therefore, the plaintiff had a right to relief against the defendants Nos. 1 to 5 or defendant No. 6 in the alternative.
4. On the allegations, aforementioned the plaintiff on 30.8.1992 filed suit in the Original Side of this Court for recovery of Rs. 91,58,480.08 being the amount of Letter of Credit and Interest. Decree was claimed primarily against defendant No. 6 and against defendants 1 to 5 in the alternative in case the Court would come to the conclusion that defendant No. 6 was not liable to pay any amount to the plaintiff. The prayer clause of the plaint reads:-
(a) This Hon'ble Court will be pleased to decree and order defendant No. 6 to pay to the plaintiff the equivalent in Rupees at the time of payment, the sum of US$ 11,46,492.99 together with interest thereon at 21% per annum with quarterly rests from the said 30th day of August, 1982 until payment and costs of the suit and such further and other reliefs as this Hon'ble Court may deem fit.
(b) That in the event of this Hon'ble Court holding that defendant No. 6 is not liable to pay any amount to the plaintiff, this Hon'ble Court will in the alternative be pleased to decree and order defendant Nos. 1 to 5 jointly and each severally to pay to the plaintiff Bank the said sum of Rs. 91,58,480.00 with further interest at the 21% per annum with quarterly rests from the 30th day of August, 1982 until payment.
(c) Costs of the Suit and
(d) Such further and other reliefs which this Hon'ble Court may deem fit. On 24.7.1984 written statement on behalf of defendant No. 6 was filed, which was duly singed for and on behalf of defendant No. 6 by Shri D.D. Udeshi, Constituted Attorney of defendant No. 6. On 16.8.1994 written statement on behalf of defendants 1 to 5 was filed. From 6.9.1982 to 13.7.1984 when the suit was taken up either in Court or before the Joint Registrar, defendant No. 66 was represented by its counsel. However, from 3.8.1984 to 29.4.1985 when on various dates the suit was taken up before the Joint Registrar the other parties were duly represented, namely, the plaintiff and defendants 1 to 5 but nobody appeared on behalf of defendant No. 6. On 21.5.1995 the suit was posted before the Court for framing issues. Plaintiff and defendants 1 to 5 were duly represented. As nobody appeared on behalf of defendant No. 6, it was proceeded against ex parte. Issues were not framed on that date. The suit was adjourned to 30.7.1985 for framing of issues, which ultimately were framed on 6.8.1985. The suit was set down for trial.
5. On 18.2.1987 and 19.2.1987 evidence led by the plaintiff against defendants No. 1 to 5 and ex parte against defendant No. 6 was recorded. Defendants 1 to 5 also led their evidence. Arguments were heard on 23.2.1987. On 10.3.1987 the suit was decreed ex parte against defendant No. 6 with costs. The suit against defendants 1 to 5 was dismissed on merits and they were left to bear their own costs. The plaintiff did not file any appeal in so far as that part of the decree by which its suit against defendants 1 to 5 had been dismissed.
6. On 4.4.1988 two applications were filed by defendant No. 6, namely, IA. 1655/88 under Order 9 Rule 13 CPC praying for setting aside the ex parte decree dated 10.3.1987 and IA. No. 1656/88 under Section 5 of the Limitation Act praying for condoning the delay, which had occured in filing the application for setting aside the ex parte decree.
7. By the impugned order passed on 28.2.1991 learned Single Judge allowed both the applications filed by defendant No. 6. In other words, delay in filing the application for setting aside ex parte decree was condoned. Ex parte decree against defendant No. 6 was also set aside subject to payment of Rs. 25,000/- as costs out of which Rs. 15,000/- were payable to the plaintiff and Rs. 10,000/- to defendants No. 1 to
5. While setting aside the ex parte decree against defendant No. 6, by the same order, learned Single Judge also set aside that portion of the decree whereby the suit on merits had been dismissed against defendants 1 to 5. In doing so learned Single Judge relied upon the proviso to Rule 13 of Order 9 of the Code. Feeling aggrieved against the impugned order, defendants 1 to 5 have filed FAO(OS). No. 78/91. The plaintiff has also filed FAO(OS). No. 100/91.
8. We have heard learned counsel for the parties and were taken through the entire record.
9. The plaintiff Bank in its appeal [FAO(OS). No. 100/91] his questioned the legality and validity of the impugned order condoning the delay and setting aside the ex parte decree against defendant No.
6. A preliminary objection has been raised by learned counsel for defendant No. 6 about maintainability of the said appeal by the plaintiff Bank to challenge the impugned order on the ground that the plaintiff having accepted the costs is estopped to challenge the same.
10. Relevant facts as regards the aforementioned preliminary objections are that pursuant to the directions of learned Single Judge made in the impugned order learned counsel on behalf of defendant No. 6 tendered the costs by means of two cheques of Rs. 15,000/- and Rs. 10,000/- to the plaintiff and defendants 1 to 5 respectively. Defendants 1 to 5 did not accept the costs tendered to them. The plaintiff, however, accepted the costs without any protest or demur. The fact that the costs were accepted by the plaintiff when tendered on behalf of respondent No. 6, pursuant to the impugned order is not disputed. It is also not disputed that the costs were accepted much prior to the institution of appeal by the plaintiff.
11. The other appeal [FAO(OS) 78 of 1991] on behalf of defendants 1 to 5 primarily is on the ground that the judgment and decree dated 10.3.1987 was not an ex parte decree against defendants 1 to 5. It was a decree of dismissal of the plaintiff's suit and was a separate and independent decree. It was passed on merits after due contest and on recording of evidence. Such a decree could not have been set aside, while deciding the application of defendant No. 6 filed under Order 9 Rule 13 of the Code. It could have been set aside only by an appellant court had an appeal been filed by the plaintiff Bank, which it did not file. In addition the other ground to challenge the impugned is that in case the above plea of defendants 1 to 5 is not accepted, in that case they are entitled to challenge that part of the impugned order of learned Single Judge on merits by which the ex parte decree has been set aside against defendant No. 6. No sufficient cause had been shown by defendant No. 6 for setting aside the ex parte decree. There was a delay of 13 months in applying for setting aside the ex parte decree, which had not been explained satisfactorily.
12. In addition to raising preliminary objection about maintainability of the appeal filed by the plaintiff Bank, Shri L.R. Gupta, appearing on behalf of defendant No. 6 supported the order of learned Single Judge contending that after Learned Single Judge came to the conclusion about the nature of the decree he was perfectly justified in setting it aside as against defendants 1 to 5 also. According to him, the criteria for setting aside the ex parte decree against the defendants applying for the same would be the nature of the decree and not the fact that the same on contest had been passed in favour of the other defendants. Nature of decree being indivisible, effort of the Court would be not to pass any contradictory decrees, therefore, learned Single Judge was justified in having set aside the entire decree. However, Mr. Gupta submitted that defendant No. 6 was not otherwise concerned as to whether decree of dismissal of suit against defendants No. 1 to 5 be or be not set aside. Primarily concern of defendant No. 6 is that it be set aside only against it so as to enable defendant No. 6 to contest the plaintiff's suit on merits.
13. In so far as (FAO(OS) 100791, the appeal of the plaintiff Bank is concerned that whether or not on acceptance of costs the Bank would be estopped to challenge the impugned order, it will be necessary for us to see the nature of the impugned order that whether imposition or payment of costs was made a condition for wetting aside the ex parte decree.
14. In Bijendra Nath Srivastava (dead) through LRs. v. Mayank Srivastava and Ors. 1994 (6) SCC 177 it was held that the principle of estoppel, which precludes a party from assailing an order allowing a petition subject to payment of costs, where the other party has accepted the costs, in pursuance of the said order, applies only in those cases where the order is in the nature of a conditional order and payment of costs is a condition precedent to the petition being allowed. In such a case it is open to the party not to accept the benefit of cost and thus avoid the consequences of being deprived of the right to challenge the order on merits. It was further held that this principle would not apply to a case where the direction for payment of costs is not a condition on which the petition is allowed not costs have been awarded independently.
15. By the impugned order while allowing application for condensation of delay and setting aside ex parte decree learned Single Judge specifically made it clear that imposing costs of Rs. 25,000/- on defendant No. 6 was a condition precedent. The order says:
". I, therefore, impose cost of Rs. 25,000.00 on defendant No. 6. this being conditional, out of which Rs. 15,000/- shall be payable to the plaintiff and Rs. 10,000/- to defendants 1 to 5."
16. It was also not argued before us on behalf of the plaintiff Bank that imposition of costs was not a condition precedent in allowing the application of defendant No. 6. Applying the principles laid down in Bijendra Nath Sirivastava's case (supra) to the facts of the instant case in which the plaintiff Bank had accepted the costs without any reservation, much prior to the filing of the appeal will be precluded from challenging the impugned order on merits. The appeal preferred by the plaintiff Bank [FAO (OS). No. 100/91] is thus liable to be dismissed as not maintainable due to applicability of the principle of estoppel. Ordered accordingly.
17. We now take up the other appeal of defendants 1 to 5. Learned Single Judge while proceeding to set aside the ex parte decree examined the question that whether the decree be set aside only against defendant No. 6 or as against defendants 1 to 5 also. Learned Single Judge was aware of the fact the defendant No. 6 in its application had not said anything on this aspect since it was concerned only with its own problem.
18. Learned Single Judge, however, proceeded to examine the question as in his opinion it squarely arose because the plaintiff Bank had raised this plea that under proviso to Rule 13 of Order 9 CPC decree should be set aside as a whole. On reference to a number of decisions learned Single Judge opined that two views had emerged; firstly if the decree is one and indivisible it must be set aside in its entirety and not simply against the party or parties who had made applications for setting the same and this would be irrespective of the fact whether the decree has been passed in favour of some of the defendants. The other view was that if the suit has been contested by some defendants and it has been dismissed on merits against them, such a decree is not against them, so the proviso would not empower the Court to set aside the same. This according to learned Single Judge was the extreme view to take. Accordingly he preferred the first view and held that though the ordinary rule would be that where ex parte decree is passed against other defendants, it should be set aside only against those who apply for setting aside the same but the proviso enables the Court to set aside the ex parte decree as against the other defendants, who had appeared and contested the suit, when nature of decree requires that it should be set aside against all other defendants as well. In his view the object of the proviso is to provide for cases where it may be necessary for the ends of justice to set aside the decree not only against the defendants applying to have the same set aside but also against other defendants as well. Learned Single Judge brushed aside the submission on behalf of defendants 1 to 5 that decree against all or any of the defendants can be set aside only if it is against all or any one of them and in case decree is in favour of any of the defendants it cannot be set aside in exercise of powers under proviso to Rule 13 of Order 9 CPC.
19. Learned counsel for defendant 1 to 5 is aggrieved with this part of the order that without assigning and reason learned Single Judge opted for the first view and not for the second view.
20. Learned Single Judge having opted for the first view proceeded to examine the facts of the case as regards the applicability of the said view. While doing so he observed that liability of defendants 1 to 5 on the one hand and of defendant No. 6 on the other was in the alternative. But in his view the liability of the two sets of defendants as claimed in the plaint and for the defense which had been raised in their respective written statements was very much interwoven and inextricably mixed up. He proceeded to observe that in case it held that defendant No. 6 was not liable then in that even defendants 1 to 5 might be held liable to pay the amount and on the other hand if it be held that defendant No. 6 had filed to perform this functions and did not observe due care in negotiating the documents in that case defendant No. 6 might be held liable and in that eventuality defendants Nos. 1 to 5 might have to be absolved of their liability. Therefore, he proceeded to set aside the decree of dismissal of suit as against defendant No. 1 to 5 also.
21. Another ground, which prevailed with learned Single Judge in setting aside the entire decree is that in case decree is set aside only against defendant No. 6 and ultimately it is found that defendant No. 6 is not liable, in that case prejudice caused to the plaintiff would be irreparable. Therefore, on the ground of prejudice being caused to the plaintiff, he felt that it was necessary and desirable that decree must be set aside against defendants 1 to 5 also.
22. The above reasoning of learned Single Judge was seriously assailed on behalf of defendants 1 to 5 urging that considering the nature of suit, it was not at all incumbent that the suit as of necessity must be decreed either against defendant No. 6 or against defendants 1 to 5. The third possibility was not at all examined and cannot be ruled out that may be in a given situation the entire suit of the plaintiff may be dismissed on various pleas, which might be raised by two sets of defendants in their respective written statements or it may be that the suit may be decreed as against one set of defendants and dismissed as against the other. It was vehemently contended by Mr. Sawhney appearing for defendants 1 to 5 that the suit had been dismissed against defendants 1 to 5 on merits after due trial in which the plaintiff had full opportunity of leading evidence as against defendants 1 to 5, who alone had contested the same. The plaintiff Bank felt contended in leading whatever evidence it though fit and proper and then felt satisfied with the decree of dismissal of its suit against defendants 1 to 5. For that reason alone it was not thought proper by the Bank to challenge the decree of dismissal of its suit against defendants 1 to 5 in appeal. Now in case the Court had come to the conclusion that ex parte decree against defendant No. 6 was liable to be set aside, it was not at all necessary to set aside, it the entire decree and thereby permit the plaintiff to prove afresh its suit against defendants 1 to 5 by leading fresh evidence, which the plaintiff Bank never thought of earlier, when it had that opportunity. Suit after setting aside ex parte decree against defendant No. 6 can very well, proceed independently and has to be tried on the basis of the pleas raised inter se the plaintiff and defendant No. 6.
23. Prior to coming into force of the Civil Procedure Code, 1908 corresponding provision for setting aside ex parte decree in the Code of 1882 was Section 108. Section 108 of the Code of 1882 was in the following terms:-
"In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall pass an order to set aside the decree upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
24. There has been a divergence in judicial opinion prior to 1908 on the question whether ex parte decree could be set aside against other defendants also while setting aside the ex parte decree passed against the defendant applying for it. We need not refer to the decisions and the views, which prevailed prior to coming into force the Code of 1908. Suffice it to say that in order to set at rest the said controversy, first proviso to Rule 13 of Order 19 was inserted in the Code of 1908 in addition to the words "as against him" after the words "shall make an order setting aside the decree". In other words when the present Code of 1908 was enacted Section 108 of 1882 Code was adapted with some alterations, namely, addition of words "as against him" after the words "setting aside the decree" and by adding the first proviso. Thus the controversy was set at rest making it clear that a decree can be set aside in favour of a defendant against whom it had been passed ex parte. The Special Committee, which had been appointed to consider the amendment of 1882 Code had explained in its report the object of inserting the words "as against him" as follows:-
"The Committee have inserted the words to make it dear that a decree can only be set aside in favour of a defendant against whom the decree has been made ex parte. There is some conflict of judicial authority upon this point and the Committee think that the matter may be set at rest in this sense."
25. Thus the proviso enlarges the power of the Court to set aside the decree even against all or any of the other defendants where the decree is of such a nature that it cannot be set aside as against the applying defendant(s).
26. The Select Committee inserted the first proviso and gave the following reason in doing so:-
"We think it necessary to provide specially for cases in which it may not be possible to set aside the decree against the applicant only."
27. Rule 13 of Order 9 of the Code as it stands today is as follows:-
"13. Setting aside decree ex part against defendants- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Explanation : Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground Other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree."
28. A bare reading of the aforementioned provision makes it clear that the applicability of the proviso is dependent upon not on the question as to whether the decree is in favour or against a contesting defendant "but on the nature of decree i.e. "where the nature of decree is such" that it cannot be set aside as against the defendant applying for setting aside only than in that case it may be set aside against all or any of the other defendants. Right to set aside ex parte decree is conferred expressly only upon the party who applies to set aside the decree. Nature of decree would be the deciding factor while considering the question whether decree is to be set aside as a whole or against that defendant only, who has applied for setting aside. There are some classes of case in which decree cannot be set aside only as against the defendant applying for setting aside against other defendants also. Such classes of cases would be where the decree is joint and indivisible or where the decree proceeds on the ground common to all the defendants or when the suit result in two in consisting decrees if the ex parte decree be not set aside against the other defendant also.
29. Even after insertion of proviso there has been a conflict of opinion. One view has been taken by a Full Bench of Assam High Court in Khagesh Chandra v. Chandra Kanta Barua and Anr. AIR 1964 Assam 183. The Full Bench analysed various cases on the conflict as existed prior to the amendment of 1908 and thereafter also, it was noticed that there were two cases only; one before amendment of 1908 Code and another subsequent to it where the Court had gone to the extent of setting aside a decree, which was in favour of some of the defendants, dismissing the plaintiff's claim against them. One of the said decision prior to amendment was of Calcutta High Court in re Hari Dass Karmakar 5 Cal LJ 202 and the other decision is that of Allahabad High Court in Ram Baran v. Bodh Ram and Ors. AIR 1934 Allahabad 1051. There Judges comprising Full Bench gave their separate opinion in Khagesh Chandra's case (supra) on the question, which was referred to the Bench i.e. whether the Court had jurisdiction under Order 9 Rule 13 CPC to set aside a decree under which the suit had been dismissed on contest against one of the defendants and decreed ex parte against the others; and thereby restore the whole suit for fresh trial against both the defendants. Sarjoo Parsad, C.J. in his separate decision held that the proviso to Rule 13 of Order 9 CPC does not confer any jurisdiction upon the Court to reverse a decree dismissing the suit of the plaintiff as against some of the defendants imperilling thereby the interest of those defendants also by re-opening the whole suit. The Rule confers a privilege upon the defendants against whom an adverse decree has been passed ex parte and does not impose a disability on them and that also at the instance of the co-defendant. In the absence of any appeal by the plaintiff, to whose prejudice the decree has been passed on merits and under which the successful defendant has acquired a valuable right, it cannot be held that in a collateral proceeding, at the instance of a co-defendant the decree can be set aside. The reasons for holding so, which prevailed with Sarjoo Prasad, C.J. are to the following effect:-
"The privilege given under the Rule for applying for setting aside the ex parte decree is to the defendant against whom an ex parte decree has been passed. Emphasis lies on the word "against". This privilege can be availed by the defendant, in appropriate cases mentioned in the Rule and if the Court is satisfied, the decree against that defendant may be set aside and the suit ordered to be reheard. In the context, it appears to me that the suit means the suit in so far as it effects the liability of that particular defendant and not the whole suit, including even such defendants in whose favour the suit may have been dismissed and their liability determined The rule is subject to the proviso which enlarges the power of the Court to set aside the decree even against all or any of the other defendants where the decree is of such a nature that it cannot be set aside as against the applying defendant only. If the word 'decree' or 'suit' in the first part of the Rule referred to the 'whole suit' and the 'whole decree' then the words "as against him" and the proviso would be redundant, because in that event, in any case where the application under the Rule succeeds, the whole decree will have to go and the whole suit will have to be re-tried."
30. While giving his own reasons for not accepting the views, which had been expressed, prior to the Amendment of 1908,by Calcutta High Court in Hari Das Karmakar's case (supra) and the view of Allahabad High Court in Ram Baran's case (supra), Sarjoo Parsad, C.J. observed that the decisions being on the proviso to the Rule 13 of Order 9 C.P.C., which relate to instances where the suit had been decreed on contest or ex parte against some of the defendants have been succinctly classified under the following two board heads in the well known Commentaries of Mulla:
"I. Where the decree is ex parte against all the defendants, but the application to set aside the decree is made only by some of them.
II. where against some of the defendants, the decree is passed ex parte, but against others who have appeared and defended the suit, it is passed on the merits, and the application to set aside the decree is made by one or more of the defendants against whom the decree was passed ex parte"
31. Sarjoo Parsad, C.J. then observed that scrutiny of all cases under the above two classifications will bear out the result that the proviso to Rule does not confer any jurisdiction upon the court to reverse a decree dismissing the suit of the plaintiff as against some of the defendants.
32. Ram Labhaya, J. in his separate judgment on an analysis of the decisions cited before the Bench opined that the Legislature did not intend to authorise setting aside of an order dismissing a suit oh contest against a defendant or defendants even though it is incorporated in a decree sheet which embodied an ex parte decree against others. According to Ram Labhaya, J. the words "other defendants" in the proviso mean the defendants other than the applicant against whom the decree is passed, whether as against them it was passed ex parte or after a hearing, This statement of law would not cover cases in which the suit is dismissed or merits against defendant or defendants.
33. Deka, J. also in his separate judgment did not agree with part of the opinion expressed by Sarjoo Prasad, C.J. where distinction was tried to be drawn from the fact that since the words "as against" are used in the proviso that they only imply that the decree must be against the other defendants and not in their favour, which is an order of dismissal. Deka, J. opined that he was inclined to give a wider connotation to the word "decree" as defined in the Civil Procedure Code and was riot prepared to rule out the case where the suit in the earlier hearing ended in an order favourable to same or one of the defendants. He proceeded to record his opinion that there is nothing in the words "of the statute" to imply such a distinction that whether the dismissal of suit as against any defendant in the hearing in which an ex parte decree was passed against the rest, would take the case out side the scope of proviso to Rule 13. He was of the view that where the nature of case demands that the suit should be restored in its original form to give relief to the aggrieved party whosoever he may beg it would make no difference whether the suit was dismissed or decreed against the defendants who appeared at the first hearing and even contested. Proviso to Rule 13 of Order 9 C.P.C. admits of no narrower interpretation and when the decree is of such a nature that proper relief cannot be given to the applying defendant, without setting aside the decree against other defendants, no matter in what shape it existed, the decree may be set aside against the other defendants.
34. From the analysis of the three separate opinions what can be found is that Sarjoo Parsad, C.J. proceeded to interpret the proviso to Rule 13 of Order 9 literally opining that it conferred no jurisdiction on the Court to set aside the whole decree and direct the entire suit to be restored to its file to the prejudice of the defendant who had successfully contested the plaintiffs claim. Ram Lubhaya, J. gave his opinion by interpreting the proviso on making reference to the intention of the Legislature. Deka, J., however, took a broader view and opined that it is the nature of decree, which is a decisive factor in coming to the conclusion that whether decree should be set aside as, a whole or only as against the defendant applying for it and not the factor that whether decree is in favour of some of the defendants after contest and against other defendants who remained absent. Thus the majority view held that where a suit is dismissed against one defendant and ex pane decree is passed against another defendant, the Court has no jurisdiction to set aside the dismissal in favour of that defendant against whom suit is dismissed on the application of the other defendants against whom ex parte decree is passed. This view has been followed in Bhimrao Tanbaji v. Girdharilal Ramrakh and Anr. AIR 1954 Nagpur 125.
35. In the instant case learned Single Judge did not follow the view taken by Sarjoo Parsad, C.J. and Ram Lubhaya, J. but preferred the view taken by Deka, J., which was based on the view taken by a Single Judge of Allahabad High Court in Ram Baran v. Bodh Ram and Ors. the Court had opined that Jurisdiction vests
in the Court under Order 9 Rule 13 of the Code to re-open a decree that had been pronounced even in favour of one of the defendant after contest in a case where decree was one and indivisible. Learned Single Judge of Allahabad High Court did not follow the three decisions, namely, Ghonnu Mal v. Sant Das (1913) 18 I.C. 327; Monoku v. Sita Ram (1894) 18 Bom 142: and Mohini Chowdhurani v. N.N. Roy, (1900) 4 CWN 456 but followed the view of Full Bench decision of Allahabad High Court in Bhura Mal and Ors. v. Hari Kishan Das 24 All. 383 in which Aikman, J. had remarked that the Court must be assumed to have the power to set aside the whole decree, if the decree from its nature is one and indivisible, or if, in order to give to the defendants against whom an ex parte decree has been pronounced the relief to which they are entitled, it must be set aside as a whole.
36. In view of the conflict between two decisions of Allahabad High Court reported as Sardar Karam Singh v. Jai Krishan 1963 ALJ 472 and Ram Baran's case (supra) a Division Bench of that Court in Ziley Singh v. Munchi and Ors. 1969 ALL LJ 804 also had an occasion to consider the scope of the proviso to Order 9 Rule 13 CPC Learned fudges observed that the following classes of cases are possible in which an application under Order 9 Rule 13 CPC can be made:-
"(i) Where the suit has been decreed ex parte against all the defendants;
(ii) Where the suit has been decreed on merits against some defendants and ex parte against the others; and
(iii) Where the suit has been dismissed on merits against some defendants and has been decreed ex parte against the remaining."
37. It is the third category with which we are concerned. Earlier decisions on the points were considered including the decision in Khaqesh Chandra's case (supra). The bench answered the question holding that the proviso does not empower the Court to set aside a decree dismissing the suit on merits against a defendant on an application filed under Order 9 Rule 1.3 CPC by another defendant against whom decree has been passed ex parte. In coming to this conclusion, the bench noticed the changes made in the Code of 1908 and the reasons for the same and opined that as a general rule the decree can be set aside only against the person making the application under Order 9 Rule 13 CPC. The proviso contemplates that in exceptional cases only the decree can be set aside also against the other defendants. The rule permits only a defendant against whom ex parte decree has been passed to make an application for setting it aside. In case where decree is of such a nature that it cannot be set aside against the defendant making the application alone, the proviso empowers the Court to set it aside against all or any of the other defendants also, Putting it explicitly the bench observed that if the decree is joint and indivisible against several defendants and it is not possible to set it aside only in respect of defendant or defendants making the application, then the Court may set it aside in respect of other defendants also. Thus as regards first class of cases mentioned above, proviso clearly applies. No view was expressed with respect of 2nd class of cases but as regards 3rd class of cases, in opinion of the Bench, the proviso would not apply to the cases where the suit has been dismissed on merits against some of the defendants. The Bench was of the view that in such a case though on paper there will be one decree but in fact and substance there would be two decrees, one in favour of the defendants against whom the suit has been dismissed and the other against the defendants against whom the suit has been decreed ex parte. Therefore, the decree cannot be said to be one and indivisible and in such a case the decree can be set aside without affecting the decree in favour of the other defendants.
38. Nagpur Bench of Bombay High Court has followed the second view in Vasani Jaiwantra Mahajan v. Tukaram Mahadaji Patil AIR I960 Bom 485. Learned Single Judge of the said Court on an analysis of various decisions as regards the proviso held that the same contemplates cases where the decree is of such a nature that it cannot be set aside against one defendant only. In other words, it was opined that it is the nature of the decree that is the determining factor and not the reasons behind the decree. Even if the defendant of the two defendants is common and even if the decree proceeds on a ground common to all the defendants, the ultimate decree should not be set aside against all the defendants unless it is of such a nature that it cannot be set aside as against one defendant only. Learned Single Judge observed that the two decrees may be inconsistent in the sense that the grounds given are inconsistent. By way of illustration learned Single Judge gave an example that in a money suit a decree against two or more defendants may be a decree for a certain sum of money as damages for breach of a contract, and if decree against one of the defendant is set aside under Order 9 Rule 13 C.P.C. and ultimately the suit is dismissed against such a defendant on the ground that he did not commit a breach of contract, then though the grounds may be inconsistent, the original decree is not of such a nature that it cannot be set aside as against one defendant only. He observed that generally in the case of a money decree the application of the proviso to Order 9 Rule 13 CPC is not attracted. It was held that for the application of the proviso to Order 9 Rule 13 CPC it is not sufficient that there was possibility of inconsistent decrees but what is necessary is that the original decree, which is being set aside at the instance of only one defendant, is of such a nature that it cannot be set aside, as against that defendant only.
39. This view also found favour with the Orissa High Court. A Division Bench of the said Court in an unreported decision in Civil Revision No. 485 of 1979 Akura Dash v. Jagannath Dash and Ors. decided on 14.5.1987, while reversing the contrary view as was taken by Single Judge of that Court in Madan Naikarni v. Ranjit Mahakur and in the unreported decision in Misc. Appeal No. 356 of 1983, Rabindra Prasad Kamilla v. Abhava Prasad Kamilla decided on 23.6.1987 held that an ex parte decree can be set aside even when it is passed in favour of some of the defendants if it would give rise to two inconsistent decrees. Ankura Dash's case (supra) is relied upon in a later decision of Single Judge reported as Samir Snigdha Chandra v. Pranaya Bhushan Chandra and Ors. ,
40. Rajasthan High Court has also taken a similar view in Mst. Suraj Kunwar v. Charnpalal and Ors. that as a general rule an ex parte decree is to be set aside against the person making the application under Order 9 Rule 13 CPC Ordinarily it need not be set aside against the others. The proviso to Rule 13 of Order 9 C.P.C. should be confined to cases where the nature of the decree is that that it cannot be set aside as against some defendants only.
41. Learned single Judge in the impugned judgment did not assign any reason in following the opinion expressed by Deka, J. in Khagesh Chandra's case (supra). However, the view taken by learned Single Judge in the impugned judgment is that the nature of decree is the determining factor in order to apply the proviso enabling the Court to set aside the ex parte decree as against other defendants. We also find that the same is a consistent view as was adopted by Deka, J. in Khagesh Chandra case (supra). In any case, we may assign nor own reasons for the same. The other view that the jurisdiction of the Court is limited only to set aside a decree passed against the defendants and not that decree, which is in favour of the defendant, on a bare reading of the proviso appears to be erroneous. The reasons for the said view as have been taken are that in case the suit has proceeded on merits against one set of defendants, who after putting in appearance contested the same and on due trial the same is dismissed, in that case remedy is available to the plaintiff to file appeal against decree of dismissal of suit against the said set of defendants. In case such an appeal is not filed the decree of dismissal of suit in so far as the said set of defendants is concerned becomes final. The decree passed in favour of the plaintiff ex parte against the defendant alone can be set aside under Order 9 Rule 13 CPC at the behest of one or more of the defendants, who are proceeded against ex parte.
42. On the Court reaching the conclusion that ex parte decree against the defendant applying for the same deserves to be set aside, the first step would be to allow his application and set aside the ex parte decree as against him upon such terms as to costs etc. as the Court may deem fit and the Court shall appoint a day for proceeding with the suit. The stage for applying the principle embodied in the proviso is the second stage that whether it should be set aside against the other defendants who have not approached the Court for setting aside the same or whether it should be set aside as a whole, irrespective of the fact that a prayer is made or not by any party, the Court is enjoined upon to consider the next question that whether the decree is of such a nature that it cannot be set aside as against the said defendant only, it may be set aside as against all or any of the other defendants also. The Legislature was aware of the controversy, which existed before the proviso was inserted in 1908 Code. The controversy was on both the counts. Had the Legislature intended to limit Court's jurisdiction in setting aside that part of the decree where suit ended in an order favourable to some of the defendants, it would have done so explicitly by saying that the decree may be set aside as against all or any of the other defendants against whom it is ex parte. But no scope for any doubt appears to have been left when the Legislature empowered the Court to set aside the same as "against all pr any of the other defendants" without making any distinction on the defendants that whether those defendants had remained successful or not. The only condition to be satisfied for applying the proviso is that the nature of the decree is such that it cannot be set aside as against the defendants applying. Consequently, we are of the opinion that learned Single Judge was correct in following the view taken in the Full Bench decision of Assam High Court by Deka, J.
43. Learned Single Judge, however, fell in error in not correctly applying the said principle to the facts of the instant case. Learned Single Judge proceeded to examine the nature of decree on applying the test of prejudice that was likely to caused to the plaintiff Bank in case decree was not set aside as a whole. Such a consideration cannot be a ground to set aside the entire decree. The other criteria applied by learned Single Judge to set aside the entire decree was about the reasons, which had prevailed with the court in dismissing the suit against defendants 1 to 5 and decresing the suit ex parte against defendant No. 6. On the parity or those reasonings it was held that there was possibility of conflicting decrees being passed. Such a reasoning also cannot be a determining factor to find out the nature of decree. There was no question of any conflict in decrees since in a suit like this possibility cannot be ruled out that the Court might come to a conclusion that the suit is liable to be decreed against both set of defendants or liable to be dismissed against both sets of defendants or liable to be decreed in favour of one set of defendants and dismissed against the other set of defendants. It is also not correct to say that in the instant case decree is of such a nature that it cannot be set aside as a whole. There is a decree passed by the Court dismissing the suit of the Plaintiff Bank against defendants 1 to 5, which is a totally separate and distinct as regards the decree, which was passed against defendant No. 6. On the face of it the decree is not indivisible but was of a divisible, character. The decree dismissing the suit against defendants 1 to 5 does not contain any reasons and reasons given in the judgment cannot be imported to the decree. There is no question of any conflicting decrees in a suit like the one filed by the plaintiff Bank such is founded on separate cause of action against two set of defendants through on common facts. If suit is dismissed against one set of defendants, the other possibilities aforementioned cannot altogether be ruled out. Therefore, learned Single Judge was not justified in observing that it would amount to passing an inconsistent decree of that nature of decree is such that it is liable to be set aside as a whole. In this view of the matter, we need not consider the alternate submissions made by Mr. Rajiv Sawhney appearing for defendants 1 to 5 that defendant No. 6 had not made out any case for setting aside ex parte decree against it.
44. Consequently, the judgment of learned Single Judge in so far as it proceeded to set aside the decree, which had been passed dismissing the suit of the plaintiff Bank against defendants 1 to 5 is liable to be set aside. The appeal [FAO (OS). No. 78 of 1991] is accordingly allowed and the appeal [FAO (OS) No. 100 of 1991] is dismissed leaving the parties to bear their costs.
45. A copy of the judgment be placed by the Registry on the record of FAO(OS) No. 100 of 1991.