Arjun Singh vs Mohindra Kumar and Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 768 of 1963

Decision Date: 13 December 1963

Coram: N. Rajagopala Ayyangar, Bhuvneshwar P. Sinha, A.K. Sarkar

In this matter, the Supreme Court recorded that the dispute involved three separate suits: in two of the suits the appellant was named as a defendant, while in the remaining suit the appellant was the plaintiff. One of the three suits was identified as the principal suit, in which the appellant was a defendant, and the other two were described as connected suits. The Court ordered the three suits to be consolidated for the purpose of hearing, and a date was fixed for pronouncing judgment. The appellant failed to appear on the scheduled date, and ex parte orders were consequently issued against him.

Subsequently, the appellant submitted an application, purportedly under Order IX, rule 7 of the Code of Civil Procedure, seeking to set aside the ex parte orders. The trial court rejected this application. The appellant then filed a revision petition before the High Court, which likewise dismissed the petition. Shortly thereafter, the appellant approached the trial court requesting that evidence be taken and that the case proceed on its merits; this request was also denied. The appellant thereafter filed another application, this time under Order IX, rule 13 of the Code of Civil Procedure, again seeking to set aside the ex parte orders and repeating the same facts and reasons previously advanced. The respondents, relying on the doctrine of res judicata, opposed the application, and the trial court accepted the respondents’ contention and rejected the appellant’s request. The appellant appealed the rejection to the High Court, which dismissed the appeal on the ground of res judicata. The present appeal arose by way of special leave granted by this Court.

The parties renewed the same plea before the Supreme Court, and their arguments focused on the interpretation and application of Order IX, rules 7, 9 and 13 of the Code of Civil Procedure, 1908. The Court held that (i) there was no material difference between the factual inquiries required to satisfy the two tests of “good cause” under Order IX, rule 3 for non‑appearance and “sufficient cause” under Order IX, rule 13; (ii) the scope of the principle of res judicata was not limited to the provisions of section 11 of the Code but had a more general application, extending to different stages of the same suit as well as to findings on issues in distinct suits, citing the decision in Satyadhyan Ghosal v. Smt. Deorajin Debi; and (iii) when res judicata was invoked at different stages of proceedings in the same suit, the nature and scope of the earlier proceeding had to be examined to determine its effect. These principles formed the basis of the Court’s reasoning in rejecting the appellant’s attempts to relitigate the matter.

In examining the applicability of the doctrine of res judicata, the Court identified several factors that must be considered. First, the nature of the inquiry for which the procedural rule provides a decision, together with the specific provision that governs matters pertaining to that decision, are relevant to determining whether the principle of res judicata applies. Second, the Court observed that Order IX, rule 7 does not terminate the litigation nor does it resolve any substantive issues in dispute within the suit. Consequently, a decision or direction issued in an interlocutory proceeding under this rule cannot operate as res judicata to preclude a later hearing on the merits of an application made under Order IX, rule 13. The Court referred to precedent that supports this view. Third, for res judicata to operate, the court that decided the earlier matter must have possessed both jurisdiction and competence to entertain and decide the issue. If the entire hearing of a suit had been completed and the court, being competent to pronounce judgment, merely adjourned the proceeding for the purpose of delivering that judgment—as occurred in the present case—there was no hearing adjourned under Rule 7. In such circumstances the matter remained at the stage of Rule 6, to be followed by the issuance of an ex parte decree, rendering Rule 13 the only applicable provision of Order IX. Accordingly, the Civil Judge lacked jurisdiction to entertain the appellant’s initial application, which purported to invoke Rule 7, for setting aside the ex parte order. Therefore, the subsequent application under Rule 13 was not only within the Court’s competence but also required a merits hearing, without reference to any findings in the prior order. Fourth, the Court affirmed that the inherent powers of a court cannot supersede explicit or implied statutory provisions. Order IX, rules 7 and 13 together address every possible contingency arising from a defendant’s non‑appearance at a suit hearing, leaving no room for the Court to rely on its inherent power under Section 151. Finally, because the Civil Judge was not empowered to consider the appellant’s first application under Rule 7, the reasoning expressed in that order could not acquire the effect of res judicata to bar the hearing of the second petition under Rule 13 filed by the appellant to set aside the same ex parte order.

The matter before the Court was a civil appeal numbered 768 of 1963, taken on special leave from the judgment and order dated 6 May 1963 of the Allahabad High Court in F.A.F.O. No. 116 of 1959. Counsel for the appellant were engaged, as were counsel for the respondents. The judgment was delivered on 13 December 1963 by Justice Ayyangar.

On 13 December 1963 the Court delivered its judgment, which was authored by Justice Ayyangar. The matter before the Court was an appeal that had been granted special leave. The appellant, who had previously been a defendant, had filed an application under Order TX, rule 13 of the Civil Procedure Code seeking to set aside an ex parte decree that had been entered against him. That application had been dismissed on the ground that it was barred by the doctrine of res judicata. In order to understand the issues raised in the appeal, the Court found it necessary to set out the factual background of three separate litigations that involved the same parties.

The ex parte decree that the appellant now sought to have vacated arose from Suit 134 of 1956, which was pending before the Court of the Second Civil Judge in Kanpur. However, before that suit was instituted, two other proceedings had already been launched. The first of those earlier suits was a Small Cause action, identified as Suit 1023 of 1951, filed in the Small Cause Court at Kanpur by a woman named Phula Kuer. Phula Kuer claimed that she and the appellant were partners and that, under their agreement, the appellant was obliged to pay her a monthly sum of Rs. 150 as her share of the partnership profits. She sought recovery of a total amount of Rs. 750, alleging that the appellant had failed to make those payments. The appellant entered a defence in that suit, denying both the existence of any partnership with Phula Kuer and any liability to pay the amount claimed.

While the Small Cause suit was still pending, the appellant initiated his own suit, designated as Suit 20 of 1953, against Phula Kuer. In that proceeding the appellant asked the Court to determine the fair rent payable for the premises in which he conducted his business. The appellant contended that the premises were owned by Phula Kuer, who alleged that the business operated there was a partnership concern. Both parties agreed that Phula Kuer was the owner of the premises, though they disputed the nature of the business relationship.

During the pendency of these two suits, Phula Kuer died on 13 July 1953. After her death, a third suit—Suit 134 of 1956—was filed by a man named Rup Chand Jain, the same suit in which the ex parte decree had later been passed. Rup Chand Jain also died while his appeal was pending before the High Court, and his heirs were subsequently brought on record to represent his interest. For the purposes of this narration the Court referred to the respondents collectively as the plaintiff.

Suit 134 of 1956 had been filed on 19 May 1956. In that suit the plaintiff repeated the allegation that Phula Kuer had entered into a partnership with the appellant, which entitled her to receive Rs. 150 per month as her share of the profits. The plaintiff claimed that those payments had been made up to 14 October 1950, after which the appellant allegedly stopped paying. The plaintiff further asserted that he was the next reversioner of Phula Kuer’s interest and, on that basis, claimed a sum of Rs. 4,200 was owed to him. In addition, the plaintiff alleged that the appellant was occupying a building that belonged to Phula Kuer and therefore was liable to pay rent of Rs. 150 per month. Finally, the plaintiff sought an order authorising his eviction of the appellant from the premises. The reliefs that were claimed in the suit were therefore the recovery of the monetary amounts specified and the eviction of the appellant.

The reliefs claimed in the suit comprised a monetary decree of nine thousand three hundred ninety rupees for the matters enumerated earlier, and an order of eviction from the premises where the business was being conducted. In view of the pleadings of the parties in the three related suits, the District Judge transferred all of them to the Court of the Second Civil Judge at Kanpur on 4 August 1956. Subsequently, on 23 August 1956, the Civil Judge issued an order directing that suits numbered 20 of 1953 and 134 of 1956 be consolidated for a joint hearing, with the evidence adduced in Suit 134 of 1956 to be treated as evidence in the other suit as well. On 10 October 1956, the appellant filed his written statement to Suit 134 of 1956, reiterating the defence he had previously advanced, namely, (i) that no partnership relationship existed between him and Phula Kuer, and (ii) that he occupied the premises as a tenant and therefore could not be evicted because the statutory conditions required for the plaintiff to claim eviction had not been satisfied. The appellant also raised several additional defences, the particulars of which are unnecessary to set out in detail. Following this filing, questions arose concerning the adequacy of the court fee paid by the plaintiff in Suit 134 of 1956, as well as applications by the plaintiff to amend the plaint; these matters were dealt with during the year 1957. The issues were finally resolved on 28 February 1958. The events of the early part of 1958 may be summarised briefly. Both parties endeavoured to reach a compromise, resulting in the postponement of the hearing; however, the settlement was not finalised. Consequently, on 24 May 1958, the plaintiff and the appellant jointly applied for a two‑month extension to achieve a settlement and requested that the trial, which had been scheduled for 28 May 1958, be adjourned for that purpose. The court declined the request, observing that the suit concerning the fixation of rent dated back to 1953. On 28 May, another application for adjournment was made, and the court adjourned the trial by one day, fixing it for 29 May 1958, with the order stating that if no compromise were filed, the case would proceed to a final hearing. On 29 May, the plaintiff appeared, but the appellant was absent; the appellant’s counsel, who was present, reported that they had received no instructions to conduct the case. The court then issued an order in Suit 134 of 1956 stating: “The plaintiff is present. Defendant is absent. Counsel for the defendants have no instructions. Case proceeds ex parte. Plaintiff examined Mohindra Kumar and closed.” The order concluded with the words “Judgment reserved.” In the suit for the fixation of rent, which was taken up for trial on the same day, the court’s order read: “Plaintiff is absent. Defendant with his Counsel is present. Counsel.”

In the same proceeding the court recorded that the plaintiff’s counsel had no instructions and consequently dismissed the suit according to separate orders that had already been issued; it furthermore noted that the third suit, identified as suit 1023 of 1951, had also been decreed ex parte on that day. On 31 May 1958 the appellant lodged three separate applications in the three suits seeking to set aside the ex parte orders that had been entered against him. The application relating to suit 134 of 1956 was treated as the primary application, and in support of it the appellant filed an affidavit in which he stated that after compromise negotiations had reached a decisive stage, he was suddenly struck by a severe attack of heat‑stroke. He claimed that, because of this sudden illness, he was unable to appear in court on 29 May 1958, the date fixed for hearing, and therefore he prayed that the ex parte orders issued against him in the two suits where he was defendant be vacated and that he be permitted to contest the suits. In the matter of suit 20 of 1953, which had previously been dismissed for default, the appellant prayed that the default dismissal be set aside. Notices were issued on these applications, and the plaintiff responded by filing a counter‑affidavit in which he disputed the veracity of the appellant’s claim of illness, prayed that the applications be dismissed, and suggested that any order, if made, should be conditioned on certain terms. Although the application filed on 31 May did not expressly cite the specific statutory provision invoked, the parties and the court proceeded on the assumption that, with respect to suits 1023 of 1951 and 134 of 1956, the applications were made under Order IX, rule 7 of the Civil Procedure Code, while the proceeding concerning suit 20 of 1953 was clearly an application under Order IX, rule 9 for setting aside the default dismissal. All three applications were disposed of by a common judgment of the Civil Judge on 23 August 1958. The judge concluded that the appellant’s allegation of illness was false and therefore refused to set aside the dismissal of suit 20 of 1953, noting that a judgment had already been delivered in that case. For the remaining two suits, namely 1023 of 1951 and 134 of 1956, the judge ordered that the reservation of judgments should remain in force and fixed 25 August 1958 for the delivery of those judgments. Subsequently, the appellant filed a revision before the High Court of Allahabad challenging only the order refusing his application in suit 134 of 1956, and apparently obtained a stay of the delivery of the judgment. This application was

The High Court disposed of the revision petition on 4 September 1958 and issued an order stating, “It is conceded that no ex parte decree has yet been passed. The only order passed is that the case shall proceed ex parte against the appellant. In view of the fact that no decree has yet been passed, the setting aside of the exparte order was not absolutely necessary.” The learned judge then referred to the Supreme Court’s decision in Sangram Singh v. Election Tribunal and added, “It follows that, even though the expert order had been passed, the applicant could appear and take part in the case from the stage at (1) [1955] 2 S.C.R. p.l. which the ex parts order had been passed. The only thing he could not claim was to be relegated back to the old position as if he had not absented himself on the date fixed. In these circumstances, I think, no interference is called for with the order of the learned Civil Judge refusing to set aside the ex parte order. It will be open to the applicant to present himself on the date to which the case now stands adjourned and request the learned Civil Judge to allow him to participate in the proceedings from that state. There is therefore no force in this application. It is rejected.” The Court emphasized that the High Court had treated the appellant’s filing in Suit 134 of 1956 as an application under Order TX, Rule 7 of the Civil Procedure Code, and that this basis guided its decision on the revision. Within four days of the High Court’s order, and evidently following the direction of the learned judge, the appellant filed another application before the Civil Judge. In that application the appellant drew attention to the observations quoted above and prayed, “That your Honour be pleased to hear the application and take the evidence of the applicant.” Similar applications of the same character were filed in the other suit, namely Suit 1023 of 1951.

The Civil Judge dismissed both applications. He reasoned that the appellant’s request to be restored to the position he would have occupied had he not been absent had already been rejected by the Civil Judge himself and by the High Court on revision. Consequently, the matter was deemed finally settled, and the appellant could not be permitted to lead evidence because the final hearing of the two suits had already concluded. The judge held that the only proceeding left for the appellant was to listen to the judgment, and he therefore stated, “the applicant is now entitled only to hear the judgment.” On the same day, 25 September 1958, the prepared judgment was delivered. The judgment declared, “Both the suits are decreed with costs ex parte with interest at 6 % etc.” To overturn this ex parte decree that had been passed on 25 September 1958, the defendant subsequently filed an application under Order IX, Rule 13.

The Court noted that the application filed under Order IX Rule 13 relied on the factual premise that the appellant had a reasonable or sufficient cause for his non‑appearance before the Court on 29 May 1958, and that this premise was exactly the same as the one the appellant had set out in the application he filed on 31 May 1958. The plaintiff opposed the application not only by reiterating the dispute over the veracity of the alleged illness but also by raising three preliminary legal objections. The first objection, which was later upheld by the Civil Judge, claimed that the finding recorded in the earlier application of 31 May 1958 in suit 134 of 1956, which held that there was no sufficient cause for the appellant’s absence on 29 May 1958, operated as res judicata and therefore barred any re‑examination of the same question on its merits in the present petition under Order IX Rule 13. The second objection asserted that the finding in the application to set aside the dismissal for default of suit 20 of 1953, which had become final, also barred the trial of the same issue in the present application under Order IX Rule 13 in suit 134 of 1956. The third objection contended that the decree in suit 134 of 1956 was not truly an ex parte decree but a decree on the merits within the meaning of Order XVII Rule 3 of the Civil Procedure Code; consequently, the appellant’s only remedy lay in an appeal against that decree and he could not resort to an application under Order IX Rule 13.

The learned Civil Judge accepted the first preliminary objection and dismissed the appellant’s application. The appellant then appealed to the High Court, where the learned judges similarly held that any inquiry into whether the appellant had sufficient cause for his non‑appearance on 29 May 1958 was barred by res judicata, on the ground that the same question had already been decided in the earlier proceeding under Order IX Rule 7. The appellant’s present appeal before this Court was therefore brought by special leave under Article 136 of the Constitution. Before turning to the arguments presented by Mr Setalvad, learned counsel for the appellant, the Court observed a point that had not been seriously pressed before it. That point concerned the apparent distinction between the expression “good cause” used in Order IX Rule 7 and the expression “sufficient cause” used in Order IX Rule 13, a distinction that might suggest different standards of proof and thus potentially defeat the operation of res judicata. Since this contention had not been seriously advanced before the Court, the Court decided that it need not be examined in detail.

The Court observed that no material difference existed between the factual requirements needed to establish the two tests of “good cause” and “sufficient cause.” It stated that it could not imagine a “good cause” that would fail to be “sufficient” as an explanation for a defendant’s non‑appearance, nor could it picture a “sufficient cause” that would not qualify as a “good” one. The Court further noted that the phrase “good and sufficient cause,” which appears in other statutes, conveyed the same meaning as either of the individual terms, indicating that the two expressions were essentially interchangeable.

If any distinction were to be drawn between the two standards, the Court explained that the only possible difference might be that the “good cause” requirement could be satisfied with a lower degree of proof than the “sufficient cause” requirement. However, such a distinction could not advantage the appellant. Assuming that the principle of res judicata applied to the decisions in the two proceedings, a finding that the lighter burden of proof for “good cause” was not met in the first proceeding would, by necessity, preclude reconsideration of the same issue in the later proceeding, where the burden of proof was, if anything, higher. Consequently, the Court indicated that the first of the preliminary objections, which formed the basis of the adverse decisions of both the learned Civil Judge and the High Court, required further examination.

The Court then turned to the specific procedural rule at issue. It quoted Order IX, rule 7, which provides that when a suit has been adjourned ex parte and the defendant subsequently appears, assigning a “good cause” for the prior non‑appearance, the court may, on terms it directs, hear the defendant as if he had appeared on the originally fixed date. The Court considered a hypothetical scenario in which an application under this rule was made, the court found no “good cause,” proceeded with the suit, and ultimately entered an ex parte decree. It asked whether, in a later application under Order IX, rule 13 seeking to set aside that decree, the court could revisit the question of whether the defendant had a “sufficient cause” for the earlier non‑appearance.

The Court held that the factual question presented in the two proceedings was identical, even though the matters did not arise in successive suits that would invoke section 11 of the Civil Procedure Code. It affirmed that the scope of the principle of res judicata extended beyond the provisions of section 11 and applied generally to prevent re‑litigation of the same issue. Moreover, the Court emphasized that res judicata could operate not only between separate suits but also between different stages of the same suit, thereby barring the court from re‑examining an issue already decided, irrespective of whether the issue arose at the trial stage or at a later interlocutory stage.

In this connection the Court referred to the pronouncement in Satyadhyan Ghosal v. Sm. Deorajin Debi (1) where Justice Das Gupta, speaking for the Court, observed that the principle of res judicata is founded on the necessity of giving finality to judicial decisions. The judgment explained that once a matter becomes res judicata it may not be adjudicated again. The principle primarily operates between past litigation and future litigation. Accordingly, when a question of fact or a question of law has been finally decided between two parties in a suit or proceeding—either because no appeal was taken to a higher court, because the appeal was dismissed, or because no appeal lies—neither party may raise the same matter in any subsequent suit or proceeding between the same parties. The Court further stated that the doctrine also applies between two stages of the same litigation. It held that a court, whether a trial court or a higher court, which has decided a matter at an earlier stage, is not permitted to allow the parties to re‑agitate that matter at a later stage of the same proceedings. Counsel for the petitioner emphasized this passage to support two contentions: first, that an issue of fact or law decided even in an interlocutory proceeding can operate as res judicata in a later proceeding; and second, that the order or decision pleaded as res judicata need not be appealable in order to attract the doctrine. The Court agreed that, in general, these propositions are not open to objection. It observed that if the court rendering the first decision possessed jurisdiction to entertain the suit or proceeding, then the fact that the court is a tribunal of exclusive jurisdiction or that no appeal lies from its decision does not, by itself, negate the effect of res judicata in subsequent proceedings. The Court also noted that although Section 11 of the Civil Procedure Code expressly contemplates two separate suits and the findings of the first being binding in the second, the underlying principle is equally applicable to decisions rendered at successive stages of the same suit or proceeding. However, when invoking res judicata for different stages of the same suit, the Court pointed out that several factors must be examined, including the nature of the proceedings, the scope of the enquiry provided by the applicable substantive law, and any specific statutory provisions governing such decisions. One aspect of this inquiry concerns provisions such as Section 105 of the Civil Procedure Code, which the Court later examined in detail.

Civil Procedure Code Section 105 provided that, except as expressly provided otherwise, no appeal could be taken from any order made by a Court exercising either original or appellate jurisdiction; however, when a decree was appealed, any error, defect or irregularity in any order affecting the decision of the case could be raised as a ground of objection in the memorandum of appeal. The section further stipulated that, notwithstanding the first provision, if a party aggrieved by an order of remand made after the commencement of the Code, from which an appeal was permissible, chose not to appeal, that party would thereafter be barred from contesting the correctness of that order. Das Gupta, J. explained the operation of this provision in the decision of Satyadhayan Ghosal’s case, quoting that the rule did not mean that a higher court was forever prohibited from revisiting an interlocutory matter simply because no appeal had been taken at an earlier stage, whether an appeal lay or not. The judgment clarified that an interlocutory order which had escaped appeal, either because no appeal was available or because an appeal was not filed despite being permissible, could nonetheless be challenged in an appeal from the final decree or final order, as recorded in the citation [1960] 3 S.C.R. 590. The Court observed that if the correctness of the Civil Judge’s order disposing of the application filed by the appellant on 31 May 1958 were to be questioned in an appeal against the decree in the suit, the principles articulated in Section 105 and the observations of Das Gupta, J. would be directly applicable. Nevertheless, the Court noted that the distinction drawn between interlocutory orders that acquire finality and those that do not was not immaterial; it was essential to determine whether a particular interlocutory order was of a kind that would bar the same issue from being raised before the same court in later stages of the same proceeding. In examining the leading Privy Council decisions of Ram Kirpal Shukul v. Rup Kuari, Bani Ram Nanhu Mal, and Hook v. Administrator‑General of Bengal, Das Gupta, J. observed that in each of those cases the earlier decision deemed res judicata formed part of a decree. Consequently, although the later proceeding in which the same question was raised appeared, in form, to be a continuation of the earlier proceeding, in substance it represented an independent subsequent proceeding because the decree under the Code of Civil Procedure had terminated the previous proceedings. This observation highlighted that the existence of a decree signified the final resolution of the dispute as to execution, and therefore the subsequent proceeding could be treated as distinct, even though it related to the same underlying matter.

In this case, the Court observed that describing Mr Probyn’s order as an “interlocutory judgment” does not support the counsel’s argument that every interlocutory judgment which is not appealed automatically becomes res judicata. The Court explained that interlocutory judgments which possess the effect of a decree must be distinguished from other interlocutory judgments that merely form a step toward the final determination of the dispute through a decree or a final order. The Court cited earlier authorities, namely 11 I.A. 37, 11 I.A. 181, 48 I.A. 187, and the decision reported in [1960] 3 S.C.R. 590 at pages 602‑603, to illustrate this distinction.

The Court noted that interlocutory orders come in many varieties. Some orders, such as stays, injunctions, or appointments of receivers, are intended to preserve the status quo while the litigation is pending and to prevent the parties from suffering prejudice due to the ordinary delays that court proceedings may involve. These types of orders do not, in any respect, decide the merits of the controversy that is the subject of the suit, nor do they bring the suit to an end, even partially. The Court further observed that such orders can be altered or varied by later applications for the same relief, although such modification is normally allowed only upon the emergence of new facts or new circumstances that were not before the Court earlier.

Because these orders do not affect the substantive legal rights of the parties, the Court held that the doctrine of res judicata does not apply to the findings upon which they are based. However, the Court warned that if a party were to file another application seeking relief on the same basis after the matter has already been disposed of, the Court would be justified in rejecting the application as an abuse of process.

The Court then turned to a different category of interlocutory orders. These orders are not aimed at maintaining the status quo or preserving property pending final adjudication; rather, they are intended to promote a just, smooth, orderly, and speedy disposal of the suit. Although they are interlocutory because they do not finally decide any issue in the suit or terminate the litigation, they serve a procedural purpose. The Court gave an example of an application made under Order IX, rule 7. If an application under this rule is dismissed and a party subsequently files an appeal against the decree in the suit in which the application was made, the Court stated that the correctness of the order refusing to reopen the proceeding and refusing to send the party back to an earlier stage may be examined by the appellate court. Consequently, the refusal of the trial Court to allow the defendant to “set the clock back” does not acquire finality.

Finally, the Court clarified that the issue before it was slightly different: it had to consider whether the same Court, at later stages of the same proceeding, is bound by its earlier interlocutory order such that the order could not be reconsidered. The Court indicated that this question required a separate analysis, even if the doctrine of res judicata might not apply to the order in question.

The Court observed that even if the doctrine of res judicata were not applicable, it would not follow that a party could raise the same petition on every subsequent day that the suit was adjourned for further hearing and seek fresh orders on identical facts. The principle that a court may refuse to entertain repeated applications based on the same facts and seeking the same relief does not necessarily depend on res judicata. For example, when an application for adjournment of a suit is turned down, a later application for the same purpose, even though founded on the same factual background, is not barred by any rule of res judicata; rather, it would be rejected for the same reasons that led to the refusal of the earlier application. The Court stressed that the distinction between the operation of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is essential. If res judicata applies to a particular factual issue, even the introduction of fresh facts cannot overcome the bar, and the issue may not be re‑investigated. Conversely, where the rejection is based on the absence of new facts, the appearance of fresh facts would empower the court, indeed obligate it, to consider those facts and to fashion an order consistent with the newly presented evidence. This distinction prompted the Court to examine the nature of the direction given under Order IX, Rule 7, and to determine whether that interlocutory proceeding results in a final decision that would give rise to the bar of res judicata when dealing with an application under Order IX, Rule 13 of the Civil Procedure Code. To summarise the material facts, it is agreed that suit number 134 of 1956 had proceeded up to the stage covered by Rule 5 1/SCI/64‑61 of Order IX. Order IX, Rule 6 applies where the plaintiff appears and the defendant fails to appear at the appointed hearing. Order XI, Rule 6 states, in relevant part, that when the plaintiff appears and the defendant does not, if it is proved that the summons was properly served, the court may proceed ex parte. This provision was the basis on which the Civil Judge acted on 29 May. Order IX, Rule 7 provides that when the court has adjourned an ex parte hearing and the defendant subsequently appears, assigning a valid reason for the earlier non‑appearance, the court may, on such terms as it directs regarding costs or otherwise, hear the defendant as if he had appeared on the scheduled day. On that same day the court took evidence from the plaintiff and reserved judgment, meaning that the hearing had concluded and only the pronouncement of judgment remained. This procedural background formed the context for the subsequent discussion.

In this case, the Court observed that after the evidence of the plaintiff had been recorded, the hearing was complete and the only remaining step was the delivery of judgment. The Court cited Order LXX, rule 1, which states that after a case has been heard the judgment must be pronounced in open court either immediately or as soon as practicable on a later day; when a later day is chosen, the Court must fix that day and give proper notice to the parties or their counsel. Two days after the hearing had concluded and judgment had been reserved, the defendant appeared before the Court and filed an application that was said to be made under Order IX, rule 7. The Court held that the dismissal of this application barred the defendant from pursuing a substantive application under Order IX, rule 13. The Court noted that the extent and position of a proceeding under Order IX, rule 7 within the overall scheme of the Code had previously been examined in the decision of Sangram Singh v. Election Tribunal. In that earlier judgment, Justice Bose explained that when a defendant has been properly served and given a chance to appear, the Court may continue the trial in his absence under Rule 6(1)(a). He clarified that this provision does not compel the Court to issue an ex parte order; rather, it merely records that the trial proceeded without the defendant and removes the procedural bar that would otherwise prevent such a proceeding. The Judge further explained that the subsequent steps the Court may take after invoking Rule 6(1)(a) depend on why the suit was adjourned. If the adjournment was for the final hearing, the Court may pass an ex parte decree, after which Rule 13 becomes applicable and the Court must first make an order to set aside that decree before any further relief is granted. By contrast, Rule 7 does not require the setting aside of what is often mistakenly called an “ex parte order”; no such order is contemplated by the Code, and consequently no order to set it aside is required. The Court then referred to the effect of rejecting an application filed under Order XI, rule …

In the judgment, the Court cited a passage from a 1955 law report which stated that if a party appears on the day to which a suit has been adjourned, the party may not be prevented from taking part in the proceedings merely because the party failed to appear at an earlier hearing. The passage further explained that, although the party has the right to appear at the adjourned hearing, the party does not possess the right to reverse the progression of time. Order IX, rule 7 of the Code was said to make this principle clear, and the Court observed that, unless the party can demonstrate a satisfactory reason, the party must accept the record of everything that has already occurred and must proceed from the point at which the party joins the case.

Having set out the effect of that rule, the Court turned to the question of the character of the order that is made under Order IX, rule 7, and whether it can be described as an adjudication. The Court explained that the purpose of the provision is to ensure that the litigation proceeds in an orderly manner by penalising conduct that is deliberately dilatory and intended only to extend the time taken to resolve the dispute. The Court emphasized that such an order does not terminate the litigation and does not resolve any substantive controversy that forms the subject matter of the suit. Moreover, the Court noted that the procedure under Rule 7 is of a very summary nature, a point illustrated by the fact that, unlike the procedures under Order IX, rule 9 or Order IX, rule 13, no appeal lies against a decision taken under Rule 7. The Court therefore described the effect of Rule 7 as “refusing to set back the clock” and concluded that the Code is deliberately designed not to confer finality on any factual issue when the court acts under this provision.

To support this interpretation, the Court referred to a decision of a Division Bench of the Madras High Court in the case of Sankaralinga v. Ratnasabhapati. In that case, the defendants had challenged an ex parte decree that had been passed on 30 March 1895. Prior to the decree, the defendants had filed petitions with affidavits under section 101 of the Civil Procedure Code of 1882, a provision that corresponds to Order IX, rule 7, seeking to set aside the ex parte order, to have their written statements admitted, and to have the suit proceeded to its merits. The defendants argued that they had not been properly served with summons, a ground for relief that was recorded in the reports as appearing on page 324 of the Madras Law Reports. The trial court rejected that petition. After the ex parte decree was entered, the defendants filed a second application under section 108 of the same Code, which corresponds to the present Order IX, rule 13, again contending that the summons had not been correctly served. The District Judge dismissed the application under section 108, and the defendants appealed that dismissal to the High Court.

In the appeal, counsel for the plaintiffs‑respondents argued, through their learned representative, that the application filed under section 108 to set aside the ex parte decree was legally incompetent because the same issue had already been decided against the defendants when they earlier filed the application under section 101.

The Court observed that the argument presented by the plaintiffs‑respondents—that the defendant could not file a fresh application under section 108 because the identical question had already been decided against him when he filed the earlier application under section 101—was at first glance plausible. However, the Court noted that the language of section 108 contains the very broad words “in any case,” and therefore it could not accept the contention that the defendant was barred from invoking section 108. The Court further indicated that earlier decisions have adopted a similar view, and although the provisions corresponding to Order IX, rule 7 and Order IX, rule 13 have been in force since 1859, no case has ever upheld a plea of res judicata on the basis of an earlier decision under rule 7. Moreover, the Court pointed out that an identical objection of res judicata had been expressly raised and rejected in Bhaoo Patel v. Naroo (1) 10 C.P.L.R. 45, where reliance was placed on a case reported in 8 Cal. 272. In that context, the Court concluded that a decision or direction in an interlocutory proceeding governed by Order IX, rule 7 does not constitute res judicata capable of precluding the consideration of a subsequent application under Order IX, rule 13, which is a specific statutory remedy for setting aside ex parte decrees.

The Court further explained that under Order XLIII, rule 1(d) an appeal lies not against orders that set aside an ex parte decree but against orders that reject such an application, thereby reflecting the policy that, subject to the parties’ due diligence, the Code strives to secure a hearing for both parties before a final decision is rendered. Consequently, the order under appeal could not be sustained even on the basis that the finding recorded in the application under Order IX, rule 7 would operate as res judicata when the same factual issue was raised in a later application under Order IX, rule 13. The Court emphasized that for res judicata to arise, the earlier court must have possessed both jurisdiction and competence to hear and decide the issue. Applying this principle to the present case required a proper construction of Order IX, rule 7, whose opening words state, “Where the Court has adjourned the hearing of the suit ex parte.” The Court clarified that these words presume an ongoing hearing on the date to which the suit has been adjourned. If the hearing of the suit had been completed and the court merely adjourned the suit for the purpose of pronouncing judgment, there would be no “hearing” to adjourn, and consequently rule 7 would not apply, leaving the matter at the stage of rule 6 and making rule 13 the appropriate provision for setting aside the ex parte decree.

In the present case the Court observed that when the entire hearing of a suit has already been concluded and the trial judge possesses the authority to render judgment at that moment, an adjournment that is made solely for the purpose of pronouncing judgment under Order XX, Rule 1 does not constitute an adjournment of “the hearing,” because no further hearing remains to be conducted. The learned Civil Judge articulated that, given the stage at which the suit stood, the sole proceeding in which the appellant could take part was to attend the pronouncement of the judgment, and that, on the terms of Rules 6 and 7 of Order IX, he would therefore permit the appellant to do so. Consequently, if the hearing was already completed and the suit was not “adjourned for hearing,” Rule 7 of Order IX could not be invoked; the matter would remain at the position created by Rule 6 of Order IX and would thereafter be followed by the issuance of an ex parte decree under Rule 13, which is the only provision of Order IX applicable in that circumstance. If this interpretation were correct, it would follow that the learned Civil Judge lacked jurisdiction to entertain the application dated 31 May 1958 that was presented as being made under Rule 7 of Order IX, nor could he pass any order on the merits of that application. As a result, the application filed under Rule 13 of Order IX would be regarded as competent and would have to be heard on its merits without reference to the findings recorded in the earlier order.

Counsel for the appellant, while not denying that the May 31 1958 application was incompetent at the time it was filed, argued that the order issued by the Civil Judge should not preclude the later application to set aside the ex parte decree from being considered on its merits. To overcome the apparent difficulty, counsel submitted that even if Rule 7 of Order IX were inapplicable, the court possessed an inherent jurisdiction saved by Section 151 of the Civil Procedure Code to entertain applications that fall outside the specific statutory provisions. He further contended that the appellant had invoked that inherent jurisdiction, that the court was therefore competent to either grant or refuse the relief sought, and that consequently the proceedings before the court were not incompetent and the order made on the May 31 1958 application was rendered with jurisdiction. This argument, which was raised for the first time before this Court, led to the preliminary question of whether the court truly possesses the inherent jurisdiction alleged by counsel. For the purpose of addressing that question in the context of the relevant Code provisions, the Court considered it unnecessary to undertake an exhaustive analysis of every possible circumstance in which such inherent jurisdiction might arise, and instead decided to proceed on the accepted and admitted limits to the existence of that jurisdiction.

The Court considered the procedural code and limited its discussion to the acknowledged restrictions on the existence of any inherent jurisdiction. All parties agreed that a Court’s inherent power cannot supersede the explicit provisions laid down in the statute. Consequently, when the code contains specific rules on a particular matter, those rules exhaust the Court’s authority to act beyond them. The inherent power therefore cannot be invoked to override powers that the code either expressly grants or implicitly reserves. Even an implied prohibition within the code, derived from its overall design, is sufficient to prevent the Court from bypassing those statutory limits. The matter before the Court concerned applications filed by defendants seeking to set aside ex parte orders that had been issued against them in their absence. Order TX, rule 1 mandates that each party appear on the date fixed for answering the claim made by the defendant. Rule 2 addresses a situation where the defendant is absent but the Court records show that the summons was not properly served, thereby informing the defendant of the proceedings. A proviso to rule 2 provides that even if service was defective, the order still applies when the defendant appears despite that deficiency. Rule 3 deals with cases in which both plaintiff and defendant are absent when the suit is called, empowering the Court to dismiss the suit outright. Rule 5 contemplates circumstances where the defendant has not been properly served and the plaintiff has failed to ensure such service. Having considered those rules, rule 6(1)(a) authorises the Court to proceed ex parte even after the defendant has been duly served. Rule 6 draws a distinction between two distinct situations that may arise when a defendant fails to appear before the Court. The first situation occurs on a day when the defendant has received no notice that the suit will be taken up for a final hearing, for example during the initial hearing. The second situation arises after the initial hearing stage has passed, where a hearing is fixed for the final disposal of the suit and the defendant remains absent. Proceeding ex parte in these two categories inevitably leads to markedly different consequences for the parties, affecting the further conduct of the suit. In the first type of case the suit must be adjourned for final disposal, and the defendant retains the right to appear on the rescheduled date and defend the suit. In the second type of case, two possible outcomes may follow, as will be discussed in the subsequent portion of the judgment.

The Court explained that if the plaintiff’s case is presented and a judgment is pronounced on the same day, the provisions of Order IX, Rule 13 become applicable. Under that rule a defendant, in addition to filing an appeal or a review, may file an application under Order IX, Rule 13 to set aside an ex parte decree. The Court noted that the plaintiff’s evidence may not be fully concluded on the day the defendant fails to appear, and the trial may still have unresolved matters. In such an event the trial may be continued on a later date that has been adjourned for that purpose. According to Order IX, Rule 7, if the defendant appears on the adjourned date and is able to demonstrate satisfactory reasons for his earlier non‑appearance, the Court may “set the clock back” and recall the earlier proceedings so that the suit can be heard in the defendant’s presence. Conversely, if the defendant is unable to show good cause, the Court clarified that he is not punished by being barred from participating in any subsequent stages of the suit that remain. However, the defendant cannot claim to be placed back in the position he occupied at the very beginning of the trial. The Court observed that every possible contingency arising from a defendant’s non‑appearance at a hearing has been contemplated by Order IX, Rules 7 and 13, and that together these rules exhaust the entire range of situations that may occur during trial.

The Court then turned to the submission of counsel, who argued vigorously that the present case – where a defendant appeared after the hearing had concluded but before the judgment was pronounced – was not covered by the existing rules. The Court rejected that submission, holding that the notion of a separate stage between the conclusion of the hearing and the pronouncement of judgment is unrealistic under the scheme of the Code. Once a hearing commences, the Code provides for only two possible stages: either the hearing is adjourned, or the hearing is completed. When the hearing is completed, the parties acquire no further rights or privileges, and the only purpose of Order XX, Rule 1 is to permit the Court to deliver a judgment after a short interval following the completed hearing. Accordingly, after the stage contemplated by Order IX, Rule 7 has passed, the next and only subsequent stage is the passing of a decree, which the Court may do under Order IX, Rule 6. The only remedy thereafter is to apply under Order IX, Rule 13 to set aside that decree. Because the statutory scheme already provides for every eventuality, the Court concluded that there is no scope for invoking inherent powers to fashion an additional order for the ends of justice.

In this case the Court observed that Order IX rule 13 provides that there is no gap between the stage of reserving judgment and the stage of pronouncing judgment, and therefore it is unnecessary for the Court to give a party the remedy of obtaining orders under Order IX rule 7. Consequently the Court held that the Civil Judge did not have the authority to entertain the application dated 31 May 1958 that was presented as being made under Order IX rule 7, and that the reasons set out in the order passed on that application could not be treated as res judicata to prevent the hearing of the petition filed by the appellant under Order IX rule 13.

The Court also examined the matter from another angle. Order IX rule 7 sets out the conditions that must be satisfied for an application brought under its opening words to be considered. The submission of the counsel, if accepted, would require ignoring those opening words and deciding that, although a specific power is conferred when a suit is adjourned for hearing, the Court also possesses an inherent power when the suit is not adjourned for that purpose and, more significantly, when the suit is not adjourned at all, as contemplated by Order XX rule 1. The principal part of Order IX rule 7 refers to “good cause being shown for non‑appearance” on a previous day. The Court noted that the criteria the Court might apply when invoking any alleged inherent jurisdiction need not be identical to the statutory criteria laid down in rule 7. This observation led the Court to conclude that there is essentially no scope for invoking an inherent power of the Court in the present circumstance.

Finally, the Court emphasized that any such power must be exercised only to secure the ends of justice. If, at the stage governed by rule 7, power resides with the Court, and after a decree is passed rule 13 becomes applicable allowing a party to invoke that remedy, it is difficult to see how the ends of justice are served by granting the Court the additional authority that the learned counsel claimed to be inherent. Accordingly, the Court found it unnecessary to entertain the present submission. The respondent would need to demonstrate that the Court was aware it lacked a specific statutory power and nevertheless intended to use an inherent power it believed it possessed to make the orders necessary for the ends of justice. The Court also noted that it had been urged that, even if the application under Order IX rule 7 in suit 134 of 1956 was incompetent because of the stage reached by the hearing, the order passed in suit 20 of 1953 under Order IX rule 9 for the restoration of that suit was competent and operated as res judicata to the maintainability of the application under Order IX rule 13 in suit 134 of 1956. The Court rejected this argument as unfounded.

The Court examined the contention that the application filed under Order IX, Rule 13 concerning suit 134 of 1956 operated as res judicata and therefore barred the present application. It found no merit in that submission. The argument for applying res judicata relied on an earlier order that had directed the joint trial of three suits—suit 1023 of 1951, suit 20 of 1953 and suit 134 of 1956—and on the premise that, because the suits were linked, the application for restoration of suit 20 of 1953 constituted a finding by a competent Court that the appellant had no good or sufficient cause for his non‑appearance on 29 May 1958. The Court clarified that while the suits were indeed ordered to be tried jointly, meaning that evidence recorded in one suit could be treated as evidence in the others and suit 134 of 1956 was designated as the principal suit for recording evidence, this circumstance did not create a rule that every application for relief in one suit automatically applied to the other suits. For example, if no application had been made for the restoration of suit 20 of 1953, which had been dismissed for default, it could not be asserted that an application in suit 134 of 1956 would fulfill the purpose of an application for restoration of the former suit. Conversely, even if the Court had found sufficient cause to set aside the dismissal of suit 20 of 1953, that finding by itself would not constitute a ground for setting aside the ex‑parte decree in suit 134 of 1956. These illustrations demonstrated that the joint trial of the suits had no bearing on the issue presently before the Court. Consequently, the ex‑parte orders in each of the three suits had to be considered separately and disposed of independently, even though the same factual grounds might have supported relief in the separate applications. The Court also considered another perspective: the application under Order IX, Rule 9 sought to set aside the default dismissal in suit 20 of 1953 on the question of whether the plaintiff had sufficient cause for his non‑appearance “when the suit was called on for hearing,” as defined in Order IX, Rule 9. The phrase “the suit called on for hearing” unmistakably referred to suit 20 of 1953. Therefore, a decision that the appellant lacked sufficient cause for non‑appearance in that suit was not the same question as the one that arose when an application under Order IX, Rule 7 was filed in suit 134 of 1956, despite the possibility that the factual circumstances were similar or even identical.

In this matter the Court observed that the factual circumstances on which the issue depended were similar and possibly identical, and therefore the Court could not accept the submission advanced by counsel. The final argument presented by counsel for the respondent asserted that the decree issued in suit 134 of 1956 was not an ex parte decree but a decree on the merits. Counsel further contended that the proceeding dated 29 May 1958 satisfied the conditions of Order XVII, rule 3 rather than Order XVII, rule 2. The Court found several reasons to reject this contention. First, throughout the entire proceeding up to the hearing of the present application filed under Order IX, rule 13, both the Court and the parties proceeded on the premise that the decree had been passed ex parte. The order sheet dated 29 May 1958, which the Court had earlier extracted, contained a direction that the case would proceed ex parte because counsel for the defendant reported that he had received no instructions. It must also be noted that by that date the entire hearing was already concluded. The application seeking to set aside the order to proceed ex parte was filed on the basis that the previous hearing was ex parte, and the respondent contested the application on the same ground. The High Court’s revision order dated 4 September 1958 was likewise based on that premise. When the Civil Judge finally pronounced judgment in suit 134 of 1956, he expressly described the decree as an ex parte decree. In view of these circumstances the respondent would have to produce overwhelming evidence that the proceedings were not ex parte in order to succeed in his present plea. For the decree to have been passed under Order XVII, rule 3, as submitted by counsel, the opening words of that rule must be satisfied. The rule reads: “Where any party to a suit to whom time has been granted falls to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.” Regarding this, the Civil Judge stated: “The ground on which this objection is based is that 29‑5‑58 was the date adjourned at the instance of the defendant‑applicant. I do not think that this ground has any force. The record shows that on 28‑5‑58 the cases were adjourned to 29‑5‑58 on a joint application of the parties to the effect that a compromise would be filed. It was therefore not an adjournment sought by the defendant alone; moreover, that application was made by him in his own suit No 20 of 1953 and the other two suits had also naturally to be adjourned as all the three of them.”

In this case, the two suits that had been joined together were therefore not adjourned at the request of the defendant. Counsel for the appellant was unable to identify any Raw in the material facts presented. Consequently, the Court concluded that the conditions of Order XVII, rule three did not apply. Accordingly, suit number 134 of 1956 had been decreed not on the basis of a substantive hearing of the issues. It was instead decreed on an ex parte basis, as the Civil Judge had expressly noted when issuing the decree. The Court accordingly allowed the present appeal. It also remanded the application filed by the appellant under Order IX, rule thirteen, which sought to set aside the ex parte decree in suit 134 of 1956, back to the trial Judge. The trial Judge was directed to determine the matter on its merits in accordance with law. The appellant was awarded his costs in respect of the entire proceeding. Any costs that may accrue after the remand were ordered to be met by the lower courts. The appeal was thus allowed.