Holding

An appeal against an ex‑parte decree under Section 96(2) is maintainable, but the appellant cannot re‑raise contentions already decided in the dismissed Order 9 Rule 13 application; the appeal may be used to contest the merits of the decree, and the transferee has standing under Order 22 Rule 10.

Summary

The plaintiff filed a partition suit in 1976; the defendants repeatedly failed to appear, leading the trial court to post the case ex‑parte and pass a preliminary decree. The defendants filed applications under Order 9 Rule 7 and Rule 13 to set aside the ex‑parte order, both of which were dismissed, and they also appealed the decree under Section 96(2) and Order 43 Rule 1. The High Court allowed the appeal, but the Supreme Court held that an appeal under Section 96(2) is maintainable even after dismissal of the Order 9 Rule 13 application, provided the issues raised in the earlier application are not re‑raised. The Court clarified the scope of Order 9 Rule 7, the strict construction of the explanation to Order 9 Rule 13, and affirmed that the appellant had standing through substitution under Order 22 Rule 10. Consequently, the Supreme Court set aside the High Court judgment, allowed the appeal, and remitted the matter to the High Court for a merits‑based determination.

Issues considered

The maintainability of an appeal under Section 96(2) after dismissal of an application under Order 9 Rule 13
Whether the same contentions can be raised in both the Order 9 Rule 13 application and the Section 96(2) appeal
The applicability of res judicata, issue estoppel and cause‑of‑action estoppel to the parallel proceedings
The scope and timing of an application under Order 9 Rule 7
The locus standi of a transferee of the plaintiff’s right under Order 22 Rule 10

Legislation cited

Code of Civil Procedure, 1908s. Order 17 Rule 2, s. Order 1 Rule 10, s. Order 22 Rule 10, s. Order 43 Rule 1, s. Order 8 Rule 10, s. Order 8 Rule 6(D), s. Order 9 Rule 13, s. Order 9 Rule 7, s. Section 96(2)

Subjects

ex‑parte decreeSection 96(2) appealOrder 9 Rule 13res judicataissue estoppelcause of action estoppelsubstitution of plaintiffparallel remediespublic policy

Judgment

A BHANU KUMAR JAIN
v.
ARCHANA KUMAR AND ANR.

DECEMBER 17, 2004
B
[N. SANTOSH HEGDE, B.P. SINGH AND S.B. SINHA, JJ.]

Code of Civil Procedure, 1908 : Section 96(2), Order IX rules 7 &
13, Order 22 rule 10 and order 1 rule 10

C Section 96(2)-Appeal against Ex parte decree-Maintainability-
Application under 09 r.13 for setting aside ex parte decree dismissed till
Supreme Court-Held, Appeal maintainable on merits-Contention raised
in the application under 09 r.13 can't be raised.

D Order 9 r. 7-Applications under-Stage of-Application under rule 7
when an order posting a suit for ex-parte hearing is passed only and not
when the hearing is complete.

Res judicata-Applicability-Applicable in different stages of the same
proceeding-Debars a court from exercising its jurisdiction.
E
Doctrines :

Doctrine of issue estoppel-Applicability-lssue decide against a
party-Estopped from raising the same in the latter proceeding.
F
Doctrine of 'cause of action' estoppel-Applicability of-Identical
issues raised in two different proceeding-Latter proceeding to be dealth
with similarly as done in the previous proceeding.

Plaintiff filed suit for partition of suit premises. On the date fixed
G for evidence, nobody appeared for the defendants even after adjourn-
ments whereafter application was filed by the plaintiff that he had
closed his evidence. Cost of Rs. 200 was imposed on the defendants with
a stipulation that it cost was not paid, the right of cross-examination will
be closed. On the next date defendant No. 1 was again absent, the case
H was posted ex parte against her and, cost having not been paid, the right
1104
B.K. JAIN v. ARCHANA KUMAR 1105

to cross examine was forfeited. On the date fixed for final argument, the A
defendant No. 1 did not appear and the case was posted for delivery of
judgment, on which date an application under 09 r7 was filed by the
defendants (Respondents herein) for setting aside the order by which the
suit was posted for ex parte hearing. The said application wa-: rejected
and a preliminary decree for partition in favour of the plaintiff was B
passed. Application under 09 rl3 for setting aside the ex parte decree
was dismissed and the appeal under 043 rl thereagainst as well. The
special leave petition filed against the appellate order came to be dis-
missed as withdrawn. Thereafter, the defendants filed regular First
appeal in the High Court which was allowed. In the meanwhile the
plaintiff transferred his right, title and interest in favour of the present c
appellant. Hence, this appeal.

It was contended by the appellant that subject matter of the ap-
plication under 09 R13 and the regular First appeal being the same,.
allowing two parallel to continue is against public policy and, in any
event, the claim of the respondent was hit by the Doctrine of issue
D
Estoppel. As regards the counter claim of the respondent No. 2 it was
contended that it was directed only against his mother in law and thus
it could not have been enforced against plaintiff.

The respondents, on the other hand, contended that they were E
entitled to maintain an appeal against the ex parte decree and, in any
event, were entitled to assail the judgment on merit of the matter. As
regards the counter claim of respondent No. 2, it was contended that
even if no written statement was filed the court may direct the parties
to adduce evidence in which event the court may pass a decree only
upon the satisfaction that the plaintiff has been able to prove his case. F
The restricted statutory right. upon a party to the suit under Section
96(2) will always be available to assail the judgment if the plain tiff fails
to prove his case. Contention on the issue that the appellant has no locus
standi to maintain this appeal, as upon the death of the original plaintiff
he has not been substituted in his place (in the proceeding pending. G
before the High Court) was also advanced.

Allowing the appeal, the Court held

HELD : 1.1. Order 9 Rule 7 of the Code postulates an application
for allowing a defendant to be heard in answer to the suit when an order H
1106 SUPREME COURT REPORTS {2004] SUPP. 6 S.C.R.

A posting a suit for ex-parte hearing was passed only in the event the suit
had not been heard as in a case where hearing of the suit was complete
and the court had adjourned a suit for pronouncing the judgment, an
application under Order 9 Rule 7 would not be maintainable. [1115-D]

B Arjun Singh v. Mahindra Kumar and Others, AIR (1964) SC 993,
relied upon.

Vijay Kumar Madan and Others v. R.N. Gupta Technical Education
Society and Others, (2002) 5 SCC 30 and Ramesh Chand Ardawatiya v.
Anil Panjwani, [2003) 7 SCC 350, referred to.
c
1.2. In an application under Order 9 Rule 13 of the Code, however,
apart from questionin_g the correctness or otherwise of an order posting
the case for ex-parte hearing, it is open to the defendant to contend that
he had sufficient and cogent reasons for not being able to attend the
D hearing of the suit on the relevant date. (1117-G-H]

2.1. The contention raised before the High Court in the first Ap-
peal, having not been raised in the earlier application under Order 9,
Rule 13 of the Code and even in the Misc. Petition and the Revision
Application filed in the High Court, such a question having not been
E raised the appellant is disentitled from raising the said contention yet
against before the High Court in the First Appeal. (1115-H; 1116-A]

2.2. An appeal against an ex-parte decree in terms of Section 96(2)
of the Code could be filed on the following grounds :
F
(i) The materials on record brought on record in the ex-parte
proceedings in the suit by the plaintiff would not entail a decree in his
favour, and

(ii) The suit could not have been posted for ex-parte hearing.
G [1117-F-G]

2.3. When an ex-parte decree is passed, the defendant (apart from
filing a review petition and a suit for setting aside the ex-parte decree on
the ground of fraud) has two clear options, one, to file an appeal and
H another to file an application for setting aside the order in terms of Order
B.K. JAIN v. ARCHANA KUMAR 1107

9, Rule 13 of the Code. He can take recourse to both the proceedings A
simultaneously but in the event the appeal is dismissed as a result whereof
the ex-parte decree passed by the Trial Court merges with the order
passed by the appellate court, having regard to Explanation appended to
Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not
be maintainable. However, when an application under Order 9, Rule 13 B
of the Code is dismissed, the defendant can only avail a remedy available
thereagainst, viz, to prefer an appeal in terms of Order 43, Rule 1 of the
Code. Once such an appeal is dismissed, the Appellant cannot raise the
same contention in the First Appeal. [1118-A-B; 1120-F]

2.4. There may not be a statutory bar to,avail two remedies simul- C
taneously and an appeal as also an application for setting aside the ex-
parte decree can be filed, one after the other; on the ground of public
policy the right of appeal conferred upon a suitor under a provision of
statute cannot be taken away if the same is not in derogation or contrary
to any other statutory provisions. A right to question the correctness of D
the decree in a First Appeal is a statutory right. Such a right shall not
be curtailed nor any em~argo thereupon shall be fixed unless the statute
expressly or by necessary_ implication say so. (1118-D-E; 1120-D-E]

Badvel Chinna Asethu and Another v. Vettipalli Kesavayya and An-
other, AIR (1920) Madras 962; Munassar Bin Jan Nisar Yarjung (died) E
his L.Rs. Marian Begum and Others v. Fatima Begum and Others, AIR
(1975) AP 366; Mis. Mangilai Rungta, Calcutta v. Manganese Ore (India)
Limited, Nagpur, AIR (1987) Bombay 87 and Dr. MK. Gourikutty and Etc.
v. MK. Raghavan and Others, AIR (2001) Kerala 398, referred to.
F
Deepal Girishbhai Soni v. United India Insurance Co. Ltd.,· [2004) 5
SCC 385 and Chandravathi P.K. and Others v. C.K. Saji and Others, [2004]
3 sec 734, relied.

2.3. Defendant would not be permitted to raise a contention as
regards the correctness or otherwise of the order posting the suit for ex- G
parte hearing by the Trial Court and/or existence of a sufficient case for
non-appearance of the defendant before it, it would be open to him to
argue in the First Appeal filed by him against Section 96(2) of the Code
on the merit of the suit so as to ena~le him to contend that the materials
brought on record by the plaintiffs were not sufficient for passing a H
1108 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A decree in his favour or the suit was otherwise not maintainable. Lack
of jurisdiction of the court can also be a possible plea in such an appeal.
The 'Explanation' appended to Order 9 Rule 13 of the Code, however,
has to be strictly construed. [1120-H; 1121-A-B]

B Rani Choudhury v. Lt. Col. Sura} Jit Choudhury, (1982] 2 SCC 506,
P.K. Kiran Kumar v. A.S. Khaadar & Others, [2002] 5 SCC 161 and Shyam
Sundar Sarma v. Pannalal Jaiswal and Others, (2004) 9 SCALE 270,
referred to.

C 3.1. It is now well-settled that principles of res-judicata applies in
different stages of the same proceedings. [1116-B]

Satyadhyan Ghosal and Others v. Smt. Deorajin Debi and Another,
AIR (1960) SC 941 and Prahlad Singh v. Col. Sukhdev Singh, [1987) 1
sec 727, relied upon.
D
YB. Patil and Others v. YL. Patil, (1976] 4 SCC 66, Vijayabai and
Others v. Shriram Tukaram and Others, (1999] 1 SCC 693 and Hope ;
Plantations Ltd. v. Taluk Land Board, Peermade and Another, [1999) 5
sec 590, referred to.
E
3.2. Res judicata debars a court from exercising its jurisdiction to
determine the lis if it has attained finality between the parties. It creates
a different kind of estoppel viz. Estoppel by Accord. [1118-FJ

4.1. Doctrine issue estoppel is invoked against the party. If such an
F issue is decided against him, he would be estopped from raising the same
in the latter proceeding. (1118-F]
/

YB. Patil and Others. v. Y.L. Patil, (1976) 4 SCC 66; Vijayabai and
Others v. Shriram Tukaram and Others, (1999) 1 SCC 693 and Hope
G Plantations Ltd. v. Taluk Land Board, Peermade and Another, [1999) 5
sec 590, referred to.
4.2. "Cause of action estoppel" prevents a party to an action from
asserting or denying, as against the other party, the existence of a
H particular cause of action, the non-existence or existence of which has
B.K. JAIN v. ARCHANA KUMAR [SINHA, J.] 1109

been determined by a court of competent jurisdiction in previous liti- A
gation between the same parties. (1118-H; q19-A]

Thoday v. Thoday, [1964) 1 All. ER 341; Barber v. Staffordshire
Country Council, [1996] 2 All ER 748 and C (a minor) v. Hackney London
Borough Council, [1996) 1 All ER 973, referred to. B

5.1. In terms of Order 22, Rule 10 of the Code of the transferee
from the plaintiff can be substituted in place of the plaintiff. Even if not
substituted in terms of the aforementioned provision, an application
under Order 1, Rule 10 of the Code his behalf was maintainable, as he
become the legal representative of the original plaintiff. [1121-D-E)
c
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8246 of
2004.

From the Judgment and Order dated 19.12.2002 of the Madhya Pradesh :0
High Court in F.A. No. 109 of 1986.

Anup G. Choudhari, Mrs. June Chaudhari, Shri Pal Jain and Badri
Prasad Singh for the Appellant.
E
Ranjit Kumar, S.N. Kumar and Ms. Shobha for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. : Leave granted.
F
The remedies available to a defendant in the event of an ex-parte
decree being passed against him in terms of Order 9 Rule 13 of the Code
of Civil Procedure (Code) and the extent and limitation thereof is in question
before us in this appeal which arises out of a judgment and order dated
19.12.2002 passed by the High Court of Madhya Pradesh at Jabalpur in First G
Appeal No. 109 of 1986.

The fact of the matter relevant for the purpose of this appeal is as under:
• '•

One Shri N.N. Mukherjee was the owner of the premises in suit. He H
1110 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A died leaving behind his wife Smt. Suchorita Mukherjee, (original defendant
No. 1), son Shri P.P. Mukherjee, (original plaintiff) and daughter Smt.
Archana Kumar, (original defendant No. 2). The family is said to be
governed by Dayabhag School of Hindu Law. The original plaintiff filed .;
a suit for partition in the year 1976. The original defendants filed their
B written statements. Respondent No. 2 herein, Surender Nath Kumar who
is husband of Smt. Archana Kumar, Respondent No. 1 herein also filed a
written statement and counterclaim by setting up a plea of mortgage by
deposit ohitle deeds in respect of property in suit said to have been created
by his mother in law (original defendant No. 1).

c Smt. Suchorita Mukherjee died on 15.9.1984 whereupon Respondent
No. 1 herein was transposed as defendant No. 1; whereas Respondent No.
2 was transposed as defendant No. 2 therein. In the suit, the defendant No.
1 did not file any document. Respondent No. 2 also did not file any
document in support of his purported counter claim.
D
Having regard to the rival contentions raised in the pleadings of the
parties, the following issues were framed:

"l(a) Whether partition of property owned by late Shri NN
Mukherjee had taken place during his life time?
E
(b) If so, what property was available for partition?

(c) What were the shares allotted to the Plaintiff and the defendant
No. 1 in the said partition?
F
(d) Whether the Plaintiff had separated from his father during his
life time and was in separate possession of his share in the property? .r

2. Whether the Plaintiff is entitled to Y:z share and separate posses-
sion of his share in the property described in para 3 of the plaint?
G
3. Whether the plaintiff is entitled to claim mesne profits for the
income derived by the defendant No. 1 from the share in the
property? If so, at what rate and to what sum?

H 4. Whether the claim in suit is barred by limitation?
B.K. JAIN v. ARCHANA KUMAR (SINHA, J.] 1111

5. Whether the decision in Civil Suit No. 63-A of 1972 decided on A
22.11.75 by Ilnd Civil Judge, Class II, Jabalpur will operate as res-

- judicata in the present case?

(a) Whether the suit is not maintainable as no relief has been sought
against defendant No. 2?
B
(b) Whether at the request of Defendant No. l, Defendant No. 3
spent Rs. 21000 till 31.10.74 on construction and alteration of the
suit property and the interest as on 31.10.74 came to Rs. 10,000.00?

(c) Whether in order to secure the above amount defendant No. l C
deposited the title deeds of the suit property with defendant No. 2
and created a mortgage by deposit of title deeds in favour of
defendant No. 3 and the suit property stands mortgaged with the
defendant No. 3 ?
D
(d) Whether defendant No. 3 further spent Rs. 9500 in the
year 1976, 1977 and 1980 and defendant No. 2 spent
Rs. 10500.00 ?

(e) Whether defendant No. 3 is entitled to get declaration shown
as in para 6(A)(B)(C) of the written statement of defendant E
No. 3?

(f) Whether the mother of defendant No. 2 had made will in favour
of defendant No. 2 and thus, after the death of mother defendant
No. 2 became absolute owner and plaintiff has no right? F
(g) Whether the plaintiff had already separated in the year 1951 and
thus he has no right over the suit property?

6. Relief & Costs?"
G
An additional issue was framed on 13 .6.1985 and the case was fixed
for evidence on 3.8.1985. On 3.8.1985 nobody was present on behalf of
the defendant but the plaintifrs advocate was present whereupon, the case
was directed to be placed after some time. At 2.35 p.m. a request was made
for adjournment on the ground that the defendant could not come from Delhi H
1112 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A whereafter an application was filed by the plaintiff that he had closed his
evidence. It was further contended that the burden to prove the additional

B
issue rested on the defendant and if any evidence is to be adduced, he should
adduce evidence first. lt appears that the plaintiff was also not cross-
examined by Respondent No. 1 herein. As the plaintiff was attending to
the court proceedings from Calcutta, a cost of Rs. 200/- was imposed on the
·defendants. It was further directed that if the costs were not paid, the right
-
of cross-examination will be closed. The matter was again posted on
7.10.1985 on which day again the counsel for the defendant was not present.
Even the costs awarded against them was not paid. Having regard to the
fact that the Respondent No. 1 herein was absent and did not cross-examine
C the plaintiff; the case was directed to be posted ex-parte against her and the
right of cross-examination was forfeited. The case was fixed for final
argument on 11.10.1985. Yet again on 11.10.1985 the plaintiff was present
but the defendants were not. Allegedly, owing to strike of the advocates
the case was adjourned for 14.10.1985. On 14.10.1985 the learned Judge
.~

D fixed the case for 25.10.1985 for delivery of judgment. The judgment,
however, was not pronounced on 25.10.1985. However, on the next date,
viz., 30. l 0.1985, an application was filed by <he Respondents herein pur-
ported to be in terms of Order 9, Rule 7 of Code for setting aside the order
dated 7.10.1985 whereby the suit was posted for ex-parte hearing. The said
application was rejected by an order dated 31.10.1985. A preliminary
E decree for partition, thereafter was passed on 1.11.1985 in favour of the
plaintiff

An application under Order 9, Rule 13 of Code was fiied by the
Respondents herein on 5.11.1985 which was marked as Misc. Judicial Case
F No. 30/1985. The said application was dismissed by an order dated 15.1.1986
by the 6th Additional District Judge, Jabalpur holding that the defendants
failed to prove good and sufficient cause for their absence on 7 .10.1985.
An appeal marked as Misc. Appeal No. 19/86 thereagainst in terms of Order
43, Rule I (d) of the Code was filed on 30.1.1086 which was also dismissed.

G A Civil Revision Application was also filed challenging the order dated
31.l 0.1985 whereby and whereunder the Respondents' application under
Order 9, Rule 7 of Code was dismissed. The said petition was also dis-
missed. Yet again a regular First Appeal being No. 109/86 was filed in the
High Court. It is contended that the Respondent No. 2 did not file any appeal
H against the rejection of his counter claim. The said Misc. Appeal No. 19/
B.K. JAIN v. ARCHANA KUMAR [SINHA, J.] 1113

86 was dismissed by an order dated 5.4.1994 whereagainst a Special Leave A
Petition was filed which also came to be dismissed as withdrawn by an order
I dated 16.12.1994. In the meanwhile, it appears that the original plaintiff
transferred his right title and interest in favour of the present Appellant. The
plaintiff died on 1.5.2001. By reason of the impugned judgment, the High
Court allowed the First Appeal No. 109/86 holding: B
"i. That the Trial Judge has grossly erred in law by proceeding
ex-parte against the defendants.

ii. The learned counsel further canvassed that the appellant No.
2, Surendra Kumar, filed the counter claim and therefore it was C
incumbent upon the learned trial judge to decide the counter claim
filed by the defendant in view of the mandate contained in Order
8 Rule 6(D) of the Code."

Mr. Anup G. Choudhary, learned senior counsel appearing on behalf I)
the Appellant would submit that as the counter claim filed by the defendants
I under Order 8 Rule 6(D) of the Code was dismissed by the learned Trial
Judge, the First Appeal should not have been entertained by the High Court
at the instance of the Respondent No. 2 and, thus, the impugned judgment
must be set aside.
E
The learned counsel would urge that the subject matter of an applica-
tion under Order 9, Rule 13 of the Code and the subject matter of the appeal
being same, it is against public policy to allow two parallel proceedings to
continue simultaneously. Reliance in this behalf has been placed on Badvel
Chinna Asethu and Another v. Vettipalli Kesavayya and Another, AIR F
(1920) Madras 962, Munassar Bin Jan Nisar Yarjung (died) his L.Rs Marian
Begum and Others v. Fatima Begum and Others, AIR (1975) AP 366, Ml
s. Mangilal Rungta, Calc•Jtta v. Manganese Ore (India) Ltd., Nagpur, AIR
(1987) Bombay 87, Dr. MK. Gourikutty and Etc. v. MK. Raghavan and
Others, AIR (2001) Kerala 398, Rani Choudhury v. Lt.-Col. Suraj Jit G
Choudhury, [1982] 2 SCC 596 and P.Kiran Kumar v. A.S. Khadar and
Others, [2002] 5 SCC 161.

In any event, Mr. Choudhari would contend that the Respondents'
claim would be hit by the doctrine oflssue Estoppel. Reliance in this behalf
has been placed on Y.B. Patil and Others v. Y.L. Patil, [1976] 4 sec 66, H
1114 SUPREME COURT ~PORTS [2004] SUPP. 6 S.C.R.

A Vijayabai and Others v. Shriram Tukaram and Others, (1999] 1 sec 693
and Hope Plantations Ltd. v. Taluk Land Board, Peermade and Another,
[1999] 5 sec 590.

As regard the counter claim of Respondent No. 2 herein, Mr. Choudhari
B would contend that the same was directed only against his mother in law
being the original defendant No. 1, and, thus, it could not have been enforced
against the plaintiff. The learned counsel in this connection has drawn our
attention to Issue No. 5 framed by the learned Trial Judge. Drawing our
attention to the judgment of the learned Trial Judge, it was argued that the
C High Court committed a manifest error in coming to the conclusion that the
learned Trial Judge did not determine the counter claim which in fact was
done.

Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the
Respondents, on the other hand, would contend that the Respondents were
D entitled to. maintain an appeal against the ex-parte decree in terms of Section
96(2) of the Code. The learned counsel would argue that the High Court
in its impugned judgment having arrived at a conclusion that the suit was
directed to be proceeded ex-parte only against Respondent No. 1 and not
against the Respondent No. 2; he was entitled to raise a contention as regards
E the legality or validity of the order dated 31.10.1985. It was further
submitted that in any event, Respondents herein were entitled to assail the
judgment on merit of the matter. Drawing our attention to the provisions
of Order 8, Rule I 0 of the Code, the learned counsel would contend that
even in a case where no written statement is filed, the Court may direct the
parties to adduce evidence in which event the Court must pass a decree only
F upon recording a satisfaction that the plaintiff has been able to prove his
case. If on the basis of the materials on record, Mr. Ranjit Kumar would
urge, the plaintiff fails to prove his case, the judgment would be subject to
an appeal in terms of Section 96(2) of the Code which confers an unre-
stricted statutory right upon a party to a suit.
G
The learned counsel would further contend that the Appellant herein
has no locus standi to maintain this appeal as upon the death of the original
plaintiff he was not substituted in his place. Mr. Ranjit Kumar would submit
that, in the event ifit be held that the Respondents are not entitled to question
H the order of the learned Trial Judge to pass an ex-parte decree against both
S.'K. JAIN v. ARCHANA KUMAR [SINHA, J.] 1115

the Respondents, the matter may be remitted to the High Court for a decision A
on merit of the matter.

In reply, Mr. Choudhari would point out that only two contentions were
raised before the High Court and its findings thereupon being ex facie
erroneous, no purpose would be served by remitting the matter back to the B
High Court for determination of the merit of the matter. It was argued that
the Respondents have not raised any contention on merit of the matter and
in any event, they having not adduced any evidence, there is no material
on the record of the appeal enabling the court to determine the same on
merit. It was further contended that even the deed in terms whereof the
purported mortgage was created was not annexed with the written statement C
of the Respondent No. 2 as it was mandatorily required under Order 8, Rule
1 of the Code, he cannot raise any contention on merit of the counter claim
and furthermore even no evidence was produced in support thereof.

Order 9, Rule 7 of the Code postulates an application for allowing a D
defendant to be heard in answer to the suit when an order posting a suit for
ex-parte hearing was passed only in the event, the suit had not been heard
as in a case where hearing of the suit was complete and the court had
adjourned a suit for pronouncing the judgment, an application under Order
9, Rule 7 would not be maintainable. (See Arjun Singh v. Mahindra Kumar
and Others, AIR 1964 SC 993) The purpose and object of Order 9, Rule E
7 of the Code has been explained by this Court in Vijay Kumar Madan and
Others v. R.N Gupta Technical Education Society and others, [2002] 5
SCC 30 and Ramesh Chand Ardawatjya v. Anil Panjwuni, [2003] 7 SCC
350.
F
It is true that the suit was not directed to be heard ex-parte against ·
Respondent No. 2 herein but it remains undisputed that both the Respond-
ents filed application for setting aside the ex-parte decree before the learned
Trial Judge, preferred appeal against the judgment dismissing the same as
also filled a re· 1ision application against the order dated 31.10.1985 setting
the suit for ex-parte hearing. The said applications and appeal had been G
dismissed. Even a Special Leave Petition filed was dismissed as withdrawn .
• In that view of the matter it is not permissible for the Respondents now to
contend that it was open to the Respondent No. 2 to reagitate the matter
before the High Court. The contention which has been raised by the
Respondent No. 2. before the High Court in the first Appeal, furthermore, H
l I 16 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A was not raised in the said application under Order 9, Rule 13 of the Code
and even in the Misc. Petition and the Revision Application filed in the High
Court. Such a question having not been raised, in our opinion, the Respond-
ents disentitled themselves from raising the said contention yet again before
the High Court in the First Appeal.
B
It is now well-settled that principles ofresjudicata applies in different
stages of the same proceedings. [See Satyadhyan Ghosal and Others v. Smt.
Deorajin Debi and Another, AIR (1960) SC 941 and Prahlad Singh v. Col.
Sukhdev Singh, [1987] l SCC 727.

C In YB. Patil (supra) it was held:

"4 ... It is well settled that principles of res judicata can be invoked
not only in separate subsequent proceedings, they also get attracted
in subsequent stage of the same proceedings. Once an order made
D in the course of a proceeding becomes final, it would be binding
at the subsequent state of that proceeding ... "

In Vijayabai (supra), it was held:

"13. We find in the present case the Tahsildar reopened the very
E question which finally stood concluded, viz., whether Respondent
l was or was not the tenant of the suit land. He further erroneously
entered into a new premise of reopening the question of validity
of the compromise which could have been in issue ifat all in appeal
or revision by holding that compromise was arrived at under pres-
F sure and allurement. How can this question be up for determination
when this became final under this very same statute ?... "

Yet again in Hope Plantations Ltd. (supra), this Court laid down the
law in the following terms:

G "17 ... 0ne important consideration of public policy is that the de-
cisions pronounced by courts of competent jurisdiction should be
final, unless they are modified or reversed by appellate authorities;
and the other principle is that no one should be made to face the
same kind of litigation twice over, because such a process would
H be contrary to considerations of fair play and justice."
B.K. JAIN v. ARCHANA KUMAR [SINHA, J.] 1117

It was further held: A

"31. Law on res judicata and estoppel is well understood in India
and there are ample authoritative pronouncements by various courts
on these subjects. As noted above, the plea of res judicata, though
technical, is based on public policy in order to put an end to B
litigation. It is, however, different if an issue which had been
decided in an eadier litigation again arises for determination be-
tween the same parties in a suit based on a fresh cause of action
or where there is continuous cause of action. The parties then may
not be bound by the determination made earlier ifin the meanwhile,
law has changed or has been interpreted differently by a higher C
forum. But that situation does not exist here. Principles of construe·
tive res judicata apply with full force. it is the subsequent stage of
the same proceedings. If we refer to Order XL VII of the Code
(Explanation to Rule. 1) review is not permissible on the ground
D
"that the decision on a question of law on which the judgment
of the Court is based has been reversed or modified by th()
subsequent decision of a superior court in any other case, shall
not be a ground for the review of such judgment"."

The question which now arises for consideration is as to whether the E
First Appeal was maintainable despite the fact that an application under
Order 9, Rule 13 of the Code was dismissed.

An appeal against an ex-parte decree in terms of Section 96(2) of the
Code could be filed on the following grounds: F

(i) The materials on record brought on record in the ex-parte proceedings
in the suit by the plaintiff would not entail a decree in his favour, and

(ii) The suit could not have been posted for ex-parte hearing.
G
In an application under Order 9, Rule 13 of the Code, however, apart •
from questioning the correctness or otherwise of an order posting the case
for ex-parte hearing, it is open to the defendant to contend that he had
sufficient and cogent reasons for not being able to attend the hearing of the
suit on the relevant date.
H
1118 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A When an ex-parte decree is passed, the defendant (apart from filing a
review petition and a suit for setting aside the ex-parte decree on the ground
of fraud) has two clear options, one, to file an appeal and another to file
an application for setting aside the order in terms of Order 9, Rule 13 of
the Code. He can take recourse to both the proceedings simultaneously but
B in-'the event the appeal is dismissed as a result whereof the ex-parte decree
passed by the Trial Court merges with the order passed by the appellate
court, having regard to Explanation appended to Order 9, Rule 13 of the
Code a petition under Order 9, Rule 13 would not be mainta.inable. How-
ever, the Explanation I appended to said provision does not suggest that the
converse is also true.
c
In an appeal filed in terms of Section 96 of the Code having regard
to Section 105 thereof, it is also permissible for an Appellant to raise a
contention as regard correctness or otherwise of an interlocutory order
passed in the suit subject to the conditions laid down therein.
D
It is true that although there may not be a statutory bar to avail two
remedies simultaneously and an appeal as also an application for setting
aside the ex-parte decree ~an be filed; one after the other; on the ground
of public policy the right of appeal conferred upon a suitor under a provision
of statute cannot be taken away if the same is not in derogation or contrary
E to any other statutory provisions.

There is a distinction between 'issue estoppel' and 'res judicata' [See
Thoday v. Thoday, [1964] 1 All. ER 341.

F Res judicata debars a court from exercising its jurisdiction to determine
the lis if it has attained finality between the parties whereas the doctrine
issue estoppel is invoked against the party. If such an issue is decided
against him, he would be estopped from raising the same in the latter
proceeding. The doctrine of res-judicata creates a different kind of estoppel
viz Estopper By Accord.
G
In a case of this nature, however, the doctrine of 'issue estoppel' as
also 'cause of action estoppel' may arise. In Thoday (supra) Lord Dip lock
he\d:

H " .... "cause of action estoppel" is that which prevents a party to an
B.K. JAIN v. ARCHANA KUMAR [SINHA, J.] . 1119

action from asserting or denying, as against the other party, the A
existence of a particular cause of action, the non-existence or
existence of which has been determined by a court of competent
jurisdiction in previous litigation between the same parties. If the
cause of action was determined to exist, i.e., judgment was given
on it, it is said to be merged in the judgment. .. .If it was determiqed B
not to exist, the unsuccessful plaintiff can no longer assert that it
does; he is estopped per rem judicatam."

The said dicta was followed in Barber v. Staffordshire Country Coun-
cil, [1996] 2 All ER 748. A cause of action estoppel ~rise!> where in two
different proceedings identical issues are raised, in which event, the latter C
proceedings between the same parties shall be dealt with similarly as "'as
done in the previous proceedings. In such an event the bar is absolute in
relation to all points decided save and except allegation of fraud and col-
lusion. [See C. (a minor) v. Hackney London Borough Council, [1996) 1
All ER 973. D

It is true that the Madras High Court in Badvel Chinna Asethu (supra)
' held that two alternative remedies in succession are not permissible stating:

"Assuming that it is open to a defendant in the appeal against the
exparte decree to object to the decree on the ground that he had not E
sufficient opportunity to adduce e_vidence in a case where he did
not choose to avail himself of the special procedure, it does not by
any means follow that, where he did actually avail himself of the
special procedure and failed, still it would be open to him to have
the same question reagitated by appealing against the decree." F
Oldfield, J. in his concurring judgment stated:

" ... No case has been cited before us in which the question now

- under consideration, whether a party against whom a decree Has
been passed ex parte can proceed in succession under 0.9, R. 13,
as well as by taking objection to the order placing him ex parte in
his appeal against the substantive decree has been dealt with. On
G

principle it would appear that he could only do so at the expense
of the rules as to res judicata; and there can be i:io reason why the
adjudication on his application under 0.9, R.13, if there were one H
1120 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A should not be conclusive against him for the purpose of any sub-
sequent appeal. In the present case it is suggested that the facts that
his application under 0.9, R.13, was not carried further than the
District Munsifs Court and that he acquiesced in the District
Munsi:fa unfavourable order, would make a difference to his right
to appeal against the decree on this ground. The answer to this is
B
that the D:istrict Munsifs order not having bee~ appealed against,
has become final. It seems to me that it would be a matter for great
regret if a party could pursue both of two alternative remedies in
succession and·that the recognition of a right to do so would be a
unique incident in our procedure. I am accordingly relieved to find
c that such a right has not been recognized by authority ... "

The aforementioned view was reiterated in the subsequent decisions
of different High Courts in Marian Begum (supra) Mis. Mangilal Rungta,
Calcutta (supra) and Dr. MK Gourikutty (supra).
D
However, it appears that in none of the aforementioned cases, the
question as regard the right of the defendant to' assail the judgment and
decree on merit of the suit did not fall for consideration. A right to question
the correctness of the decree in a First Appeal is a statutory right. Such a
right shall not be curtailed nor any embargo thereupon shall be fixed unless
E the statute expressly or by necessary implication say so. [See Deepal
Girishbhai Soni v. United India Insurance Co. Ltd., [2004] 5 SCC 385 and
Chandravathi P.K. and Others v. C.K. Saji and Others, [2004] 3 SCC 734].

We have, however, no doubt in our mind that when an application
F under Order 9, Rule 13 of the Code is dismissed, the defendant can only
avail a remedy available thereagainst, viz, to prefer an appeal in terms of
Order 43, Rule I of the Code. Once such an appeal is dismissed, the
Appellant cannot raise the same contention in the First Appeal. If it be held
that such a contention can be raised both in the First Appeal as also in the
proceedings arising from an application under Order 9, Rule 13, it may lead
G to conflict of decisions which is not contemplated in law.

The dichotomy, in our opinion, can be resolved by holding that whereas
the defendant would not be permitted to raise a contention as regards the
correctness or otherwise of the order posting the suit for ex-parte hearing
H by the Trial Court and/ or existence of a sufficient <:ase for non-appearance
8.K. JAIN v. ARCHANA KUMAR [SINHA, J.] 1121

of the defendant before it, it would be open to him to argue in the First A
Appeal filed by him against Section 96(2) of the Code on the merit of the
suit so as to enable him to contend that the materials brought on record by
the plaintiffs were not sufficient for passing a decree in his favour or the
suit was otherwise not maintainable. Lack of jurisdiction of the court can
also be a possible plea in such an appeal. We, however, agree with f\1r. B
Choudhari that the 'Explanation' appended to Order 9 Rule, 13 of the Code
shall receive a strict construction as was held by this court in Rani Choudhury
(supra), P. Kiran Kumar (supra) and Shyam Sundar Sarma v. Pannalal
Jaiswal and Others, [2004 (9) SCALE 270].

We, therefore, are of the opinion that although the judgment of the C
High Court cannot be sustained on the premise on which the same is ba$ed,
the Respondents herein are entitled to raise their contentions as regards merit
of the plaintiffs case in the said appeal confining their contentions to the
materials which are on records of the case.
D
We, however, do not agree with Mr. Ranjit Kumar that the Appellant
herein has no locus standi to maintain this appeal. In terms of Order 22,
Rule 10 of the Code he could have been substituted in place of the plain,tiff.
Even if he was not substituted in terms of the aforementioned provision, an
application under Order 1, Rule 10 of the Code on his behalf was maintain-
able as he became the legal representative of the original plaintiff. E

For the view we have taken, it is not necessary for us to examine the
claim of the original plaintiff for partition of suit properties or claim of the
Respondent No. 2 herein as regard creation of a mortgage in relation thereto
by the original defendant No. 1 and/ or efficacy thereof. We refrain F
ourselves from even considering the submission of Mr. Ch0udhari to the
effect that even otherwise the Respondent No. 2 herein could not have raised
a counter claim in the partition suit vis-a-vis the plaintiff and the effect, if
any, as regards his non-filing of an appeal relating to his counter claim. We

- may notice that Mr. Choudhari has further contended that in terms of Order
17, Rule 2 of the Code in the event, in the suit which was adjourned and
if on the date of adjourned date the defendant did not appear, the court has
no other option but to proceed ex-parte. Ti}e High Court, in our opinion;
G

should be allowed to examine all aspects of the matter.

For the reasons aforementioned, we are of the opinion that although H
1122 SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A the judgment of the High Court is not sustainable as the reasons in support
thereof cannot be accepted, the High Court for the reasons assigned
hereinbefore must examine the Respondents' claim on merit of the matter.

The Appeal is, therefore, allowed, the impugned judgment is set aside
B and the case remitted to the High Court for consideration of the case of the
parties on merit of the matter. As the suit is pending since 197 6, we would
request the High Court to dispose of the appeal at an early date and pref-
erably within a period of three months from the date of communication of
this order. No costs.

C B.K. Appeal allowed.

-
....