Brief Facts and Procedural History
Roop Chand sold the suit land in favor of Shanti Devi. Vijay Singh, an appellant who was a co-sharer with Roop Chand, filed a suit for possession on the basis of the right of pre-emption granted to a co-sharer under the Punjab Pre-emption Act, 1913 (for short ‘the 1913 Act’) on 6th November 1989. The defendant was preceded ex parte and a decree was passed wherein Vijay Kumar took possession of the suit land on 7th June 1990.
On the same day, Shanti Devi filed an application under Order IX Rule 13 of the Code of Civil Procedure (for short ‘CPC’) for setting aside the decree claiming that she had not received the summons and had no knowledge of the proceedings. The trial court dismissed the application filed by Shanti Devi for setting aside the ex parte decree. The appellate court allowed the application filed by Shanti Devi and set aside ex parte decree. Vijay Singh challenged the order of the appellate court by filing a civil revision petition in the Punjab and Haryana High Court, which was dismissed.
In the meantime, the State of Haryana amended Section 15 of the 1913 Act. The net effect of this amendment was that the amendment took away the right of pre-emption of a co-sharer and the right of pre-emption was only retained with a tenant. The appellant then filed Petition for Special Leave to Appeal (Civil) before the Supreme Court which not only dismissed the petition but also ordered that the trial court would decide the suit afresh without being influenced by the observations on merit, made by the learned Judge of the High Court.
It was argued by Shanta Devi that in view of the amendment made to the 1913 Act, the right of pre-emption was no longer available to Vijay Kumar. On the other hand, Vijay Kumar contended that the date of the decree of the first court was 10th April 1990 when the ex parte decree was passed and, therefore, the rights of the parties are governed by the law as it stood on that date.
After remand, the learned trial court dismissed the suit of Vijay Kumar on the ground that by virtue of an amendment to the 1913 Act, the right of pre-emption stood extinguished. Vijaya Kumar, thereafter, filed the first appeal before the trial court, which was also dismissed. The regular second appeal also met the same fate.
It was decided by the constitutional bench in Shyam Sunder & Ors. v. Ram Kumar & Anr. (2001) 8 SCC 24 that if Section 15 of the 1913 Act was amended during the pendency of the appeal before the Supreme Court, the decree of pre-emption would not be affected by such amendment. It was clearly indicated that the pre-emptor should possess the right to pre-empt on three dates:
(i) the date of sale; (ii) the date of filing of the suit; and (iii) the date of passing of the decree by the court of the first instance only.
With regards to the first two conditions, Vijay Kumar was entitled to the right but a dispute arose with regards to the third conditions.
Whether, in a suit for pre-emption, an ex parte decree which is later set aside, can be termed to be the decree of the court of the first instance?
Ratio as given by the author of the judgment
Order IX Rule 6 of CPC talks about appearances of parties and consequences of non – appearance when only the plaintiff appears. Clause (a) of the proviso provides that a court may very well pass an ex parte decree which is also a valid decree. As long as the ex parte decree is not recalled or set aside, it is legal and binding upon the parties.
While rule 13 of Order IX talks about setting aside of ex parte decree. Accordingly, the court can set aside ex parte decree on two grounds:
- When the summons was not duly served upon the party
- When the defendant was prevented through a reasonable cause from appearing when the suit was called out.
In the present case it was contended by Shanta Devi that summons was not served upon her and thus she had a reasonable ground for not appearing when the suit was called for. Agreeing to this contention, the ex parte decree was set aside by the lower appellate court. The effect of this setting aside of ex parte decree was to restore the parties to the position at which they were prior to the passing of the decree. The court held that the execution of the ex parte decree does not disentitle the defendant from the right to set aside the same.
Once an ex parte decree is set aside, it is no decree in the eyes of law. The decree passed by the trial court on merits is to be treated as the decree of the first court in the present factual matrix of the case. The Supreme Court agreed that since the decree on the contest was passed after the amendment was made the plaintiff had no existing right of pre-emption.
Furthermore, the counsel contended before the Supreme Court on the issue of restitution hitting the limitation period. The Supreme Court held that the limitation period for restitution is of 12 years. Calculating the limitation period of restitution is not the job of the Supreme Court.
It is for the executing court to decide whether the restitution petition, if any file, is within the period of limitation or not. It is only the court which passed the original decree, which can order restitution.
The present appeal according to the Supreme Court is based on no merits and this it was dismissed by the two judge bench.