Raj Mohan Dewangan v. State Of C.G.

Sanjay K. Agrawal, J.

1. Invoking the second appellate jurisdiction of this Court under Section 100 of the Code of Civil Procedure, 1908 (in short "CPC") against the impugned judgment and decree dated 21-1-2002 passed by First Additional District Judge, Jagdalpur, District Bastar in Civil Appeal No. 40-A/2001 affirming the judgment and decree dated 11-5-2001 passed by Civil Judge, Class II, Narayanpur, Bastar in Civil Suit No. 4-A/1988 dismissing the suit of the plaintiffs, the instant appeal has been filed.

[For sake of convenience, the parties would be referred hereinafter as per their status shown in the plaint before the Trial Court.]

Brief facts necessary for adjudication of this second appeal are as under:--

"2.1. The plaintiffs commenced an action seeking decree of declaration that order dated 24-2-1988 passed by respondent No. 3-Naib Tehsildar is null and void and plaintiffs be declared owner and title holder of the suit on the basis of adverse possession.

2.2. The defendants/State filed written statement on 18-4-1988, thereafter; they proceeded ex parte and ultimately, ex parte decree was passed on 27-3-1991, decreeing the suit in favour of the appellants/plaintiffs. On 14-11-1995, application under Order 9 Rule 13 of the CPC was filed by the defendants for setting aside ex parte decree, registered as MJC No. 3/1995, which came to be dismissed for non-prosecution on 13-12-1995 again, an application for restoration was filed by the defendants, which was registered as MJC No. 3-A/1995 and the same was dismissed for non prosecution on 29-1-1996. Thereafter, on 23-3-1996, again, an application under Order 9 Rule 7 of the CPC was filed for restoration of MJC No. 3-A/1995.

2.3. In aforestated proceeding, the Trial Court by its order dated 24-3-1998 set aside the ex parte decree dated 27-3-1991, and restored the suit on its original number for hearing and disposal in accordance with law. The application for review of order dated 24-3-1998 was rejected on 6-7-1998 and thereafter, the suit went for full, trial, which was contested by the plaintiff on merits and ultimately, plaintiffs' suit was dismissed on 11-5-2001.

2.4. The First Appeal filed by the plaintiffs was also dismissed on 21-1-2002, leading to filing of this Second Appeal by the plaintiffs."

2. Mr. Parag Kotecha, learned Counsel appearing for the appellants/plaintiffs would submit that the order dated 24-3-1998 passed by the Trial Court, setting aside the ex parte decree is illegal and such an order is an error affecting the decision of the case within the meaning of section 105(1) of the cpc, which can be set forth as ground of objection in this second appeal, and would further submit that concurrent finding recorded by two Courts below are also perverse. Shri Kotecha, proposed following two substantial questions of law in this second appeal:--

"(i) Whether the First Appellate Court is justified in holding that plaintiffs are not entitled to challenge the legality of order dated 24-3-1998, setting aside ex parte decree under section 105(1) read with section 108of the cpc and same cannot be set forth as ground in this appeal preferred under Section 100 of the CPC?

(ii) Whether the two Courts below are justified in holding that plaintiff cannot maintain a suit for declaration of title and possession on the basis of his adverse possession?"

3. I have heard learned Counsel appearing for the appellants/plaintiffs and perused the records of both the Courts below carefully.

4. I will consider first the question as to whether the order setting aside ex parte decree dated 24-3-1998 is an order affecting the decision of the case, which can be set forth as a ground of objection in the memorandum of this appeal?

5. In order to answer the question, sections 105 and 108 of the cpc would be required to be noticed. sections 105 and 108 of the cpc provides as under:--

"105. Other orders.--(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in arty order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."

"108. Procedure in appeals from appellate decrees and orders.--

The provisions of this Part relating to appeals from original decrees shall, so far as may be, apply to appeals--

(a) from appellate decree, and

(b) from orders made under this Code or under any special or local law in which a different procedure is not provided-"

Thus, section 105 of the cpc has been made applicable to the second appeal by virtue of section 108 of the cpc.

6. A close reading of section 105(1) of the cpc would show that any error, defect of Irregularity in the order, affecting the decision of the case, may be set forth as a ground of objection in memo of appeal, while preferring appeal against the decree provided no appeal lies against that order. Thus, in order to attract section 105(1) of the cpc, the abovestated two conditions must be satisfied.

7. The main question is whether the order dated 24-3-1998 setting aside the ex parte decree can be said to be an order affecting the decision of the case within the meaning of section 105(1) of the cpc, so that it can be set forth as a ground of objection in the memorandum of appeal.

8. Undisputedly, the order dated 24-3-1998, setting aside ex parte decree is not an appealable order under Order 43 Rule (1) of the CPC, then question would be whether it is an order affecting the decision of case; so that error, defect into same can be examined in this appeal by virtue of section 105(1) of the cpc. The Full Bench decision of Allahabad High Court in Radha Mohan Datt, Silk Merchant v. Abbas Akli Biswas and others, AIR 1931 All. 294 (FB), considered the meaning of the words "affecting the decision of the case", in sub-section (1) of Section 105 of the CPC and held that those words in sub-section (1) of Section 105 of the CPC, must be construed in the sense of affecting the decision of the case on the merits. The words "on the merits" are not to be found in the sub-section, but this must be supplied by necessary implication, being necessarily involved in the connotation of the word "affect", having regard to the context. Paras 12,13,14,17 and 36 of the report held as under;--

"12. in dealing with the questions under reference, we must remember that a right of appeal is the creature of statute. An order granting an application under Order 9 Rule 13, CPC, is not a decree within the meaning of Section 2(2) of the Code and is not appealable as such. Certain interlocutory orders are appealable under Section 104 and Order 43, CPC, but this is not one of them. But a right of appeal has been expressly provided from an order refusing to set aside an ex parte decree. This provision was in the old Code. This provision is not to be found in the Civil Procedure Code now in force. Now, this could never have been a mere freak on the part of the Legislature to provide for an appeal in the one case and not to provide for an appeal in the other case; nor could this matter be regarded as a casus omissus. We have every reason to believe that the act of the legislature was deliberate and there was an undoubted intention to give a finality to an order setting aside an ex parte decree under Order 9, Rule 13, CPC. It may not be useful to probe into and discuss the policy underlying the text but it is obvious that the legislature has a marked leaning for a procedure, promotive of the decision of the case upon the merits, and therefore, it is natural that express provisions should have been made to ensure the attainment of that end.

13. Under Section 105(1), the order setting aside an ex parte decree cannot be set forth as a ground of objection in the memorandum of appeal, but any error, defect or irregularity in the said order may be set forth. This is the natural and grammatical construction of the text. The section is no warrant for the proposition that the order itself can be open to challenge in the appeal preferred from the decree passed in the suit itself.

14. It has been argued that the words 'affecting the decision of the case' cannot be construed to mean 'affecting the decision of the case on the merits'. The legislature did not intend to provide for a rule in section 105 with reference to any error, defect or irregularity at variance with the rule laid down in Section99 of the Code. In the latter section, it has been provided that no decree shall be reversed or substantively varied etc. in appeal on account of any error, defect or irregularity in any proceeding in the suit not affecting the merits of the case. In both these sections, the legislature appears to have had the same objective in view. In construing a statute, it is not permissible to import into its text any words of limitation unless the text requires those words by necessary implication. We are however, not importing any new words into the text, but we are construing the words 'affecting the decision of the case'. The word 'affect' predicates that the error, defect or irregularity in the order has influenced the conclusion in such a way that an injust result has been arrived at in the decision of the case on the merits. We respectfully dissent from the view of Heald, J., in M.S. Mahomad v. Collector of Tomigue, AIR 1917 Rang 150. We are not importing into the text any words, which are foreign to it. Here the words were in by necessary implication and we are only construing the text.

17. We do not think that where the legislature did not intend to provide for an appeal from an order setting aside an ex parte decree, it could have intended to produce the same result in an indirect way by allowing the property of the order to be questioned in an appeal from the decree ultimately passed in the case. We have already noticed, and we do emphasise upon the fact, that upon its grammatical construction Section105 does not favour the contention of the respondents, for that which can be made a ground of appeal is not the order itself but any error, defect or irregularity in the order. Moreover, it is not possible to conceive how the error, irregularity or defect in the order setting aside the ex parte decree could affect or influence the merits of the case. The trial of the case could not commence till the ex parte decree had been discharged. The setting aside of the ex parte decree was, therefore, a condition precedent to an enquiry or trial into the merits of the claim and the retrial may be described as a second stage in a history of the case, but the two stages are distinct and independent. The second stage does not begin till the first stage has closed.

36. Upon a consideration of the text of the statute, and of the principal authorities bearing upon the same, we have no doubt that the property of an order setting aside an ex parte decree can not be set forth as a ground of objection in a memorandum of appeal from the decree, ultimately passed in the suit under section 105 of the cpc. Our answer, therefore, to the first question under reference is in the negative."

9. Again, in case of Radha Ballabh v. Jawahar Lal, AIR 1956 All. 216, the Allahabad High Court has held that the word "decision" as used in section 105(1) of the cpc means decision upon the merits and an order passed under Order 9 Rule 9 of the CPC cannot be construed to be a decision upon merits so as to come within the purview of section 105 of the cpc. It was held as under:--

"4........In view of these decisions, I am of the opinion that the word 'decision' in Section 105 of the Code of Civil Procedure means decision upon the merits. An order passed under Order 9 Rule 9 of the Code cannot be construed to be a decision upon merits so as to come within the purview of section 105 of the code. Consequently, the order of restoration cannot be brought into question in this second appeal."

10. The Madhya Pradesh High Court in case of Holaram v. N.K. Pande, 1968 JLJ 370, has also considered the question as to whether the order setting aside the ex parte decree could be an order within the meaning of section 105(1) of the cpc, which can be set forth as a ground of objection in the memorandum of appeal and held that setting aside of ex parte decree merely ensures the hearing on merits, particularly, when plaintiff has participated in the trial and contested the suit on merits and having suffered the judgment against himself, could not be heard in the Appellate Court to say that the order setting aside ex parte decree was bad in law. The High Court inter alia observed as under:--

"3....... To me, it is quite plain that Their Lordships said so about the dismissal of an application under Order 9 Rule 7, Civil Procedure Code. That can certainly be agitated in the Appellate Court under Section105 of the Code because the exclusion of a party from the hearing of the suit would affect the decision of the case on its merits. But, the converse is not true. Setting aside an ex parte order merely ensures a hearing upon the merits but it is not an order that affects the merits of the case, [See: For instance, Radhamohan v. Abbas Ali (supra), and Radha Vallabh v. Jawaharlal (supra). Section 105, therefore, does not apply. In Sathyadyan (supra), Their Lordships considered the applicability of Section 105(2), which relates to an order of remand. I must, then, told that the learned District Judge had no jurisdiction to go into the correctness of the interlocutory order dated 3rd April, 1963, whereby the ex parte order of 30th March, 1963 was set aside. This is sufficient to set aside District Judge's order.

4. Moreover, the plaintiff, having participated in the Trial Court having fought the suit on merits and having suffered judgment against himself, could not be heard in the Appellate Court to say that the Trial Court was bound to decide the suit solely on his statement which was recorded ex parte on the 30th March, 1963."

11. Thus, having regard to the law laid down in this regard and keeping in view the same, the order setting aside the ex parte decree merely ensures the hearing of the suit on merits. It is held the said order cannot be said to be an order affecting the decisions of the case on merits within the meaning of Section 105(1) of the CPC read with Section 108 of the CPC and particularly, plaintiffs having contested the suit on merits and thereafter, suffered a decree on merits, the legality and validity of the order dated 24-3-1998 cannot be set forth as a ground of attack to challenge the correctness of decree of the First Appellate Court in an appeal filed under Section100 of the CPC and the First Appellate Court is absolutely and perfectly justified in holding that the plaintiffs are not entitled to challenge the correctness of order dated 29-3-1998 under section 105(1) of the cpc in this second appeal. Thus, substantial question of law proposed by learned Counsel for the appellant/plaintiff does not arise.

12. The next substantial question of law proposed by the Counsel for the appellants/plaintiffs is that two Courts below are unjustified in dismissing the plaintiffs' suit for possession based on adverse possession holding it non-maintainable in law?

13. The question whether the plaintiff can maintain a suit for declaration of his title and possession on the basis of adverse possession is no longer res Integra, very recently, it has been held by Their Lordships of Supreme Court in Gurudwara Sahib v. Gram Panchayat, Village Sirthala and another, (2014) 1 SCC 669, that plaintiff cannot maintain suit for declaration of title based on adverse possession and it can use his adverse possession as a shield/defence. Para 8 of the report succinctly held as under:--

"8. There cannot be any quarrel to this extent that the judgments of the Courts below are correct and without blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession was matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."

14. Thus, both the substantial questions of law proposed by learned Counsel for the appellants/plaintiffs do not arise for consideration in this second appeal. Both the Courts below have not committed any legal error in dismissing the suit. Consequently, the second appeal deserves to be and is accordingly dismissed at admission stage itself. No order as to costs.

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