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Judgment
Re. Interlocutory application no. 2 of 2019 ( kept at Flag-‘B’)
Heard Mr. Jitendra Kishore, learned counsel for appellant-defendant and Mr. Vijay Kumar, learned counsel for plaintiff- respondent. Both parties
have appeared and advanced arguments in support of their case.
The counsel for appellant has made prayer in the instant Interlocutory application for staying the further proceedings of Execution case no. 3 of 2014,
pending in the Court of Sub-Judge-II, Patna City till disposal of the First Appeal.
It has been submitted that appellant is in possession and residing in the suit property/house with the member of her family. The appellant is exclusively
using the entire suit property/premises for her residence and earning her livelihood through rent and the suit premises exclusively belongs to her. In the
event of delivery of possession the appellant and her family members who are residing in the said residential premises will suffer irreparable loss as
they do not have any alternative residential accommodation. It is apparent from perusal of the ex-parte judgment that the suit property is in exclusive
use of appellant and there is no access of the plaintiff/respondent therein at present nor plaintiff is using any part thereof.
The plaintiff-respondent has filed detailed counter affidavit to the aforesaid Interlocutory Application. It has been submitted that instant Interlocutory
Application arises out of F.A. No. 60/2018, which has been filed assailing the so-called ex-parte judgment and decree dated 16.12.2013, passed by
learned Sub-Judge-4th, Patna City, in Title Suit No. 112 of 2012, whereby the suit of plaintiff-respondent has been decreed. Learned counsel further
submits that instant First Appeal No. 60/18 is not maintainable.
Initially, the plaintiff-respondent has filed Title Suit no. 112/2012 against the defendant-appellant, namely, Vidyawati Devi seeking relief for grant of
decree for specific performance of contract on the basis of agreement for sale dated 04.02.2011, executed by Vidyawati Devi in favour of present
respondent, namely, Raju Kumar Singh. The said suit was decreed ex-parte on 16. 12.2013 on the ground that despite service of notice the defendant
of that suit ( appellant herein) failed to appear in the said suit.
The defendant-appellant, namely, Vidyawati Devi, having come to know about the existence of ex-parte decree passed in Title Suit No. 112 of 2012,
filed Misc. case under Order IX, Rule 13 of the C.P.C. which was numbered as Misc. Case No. 01/2015. In the aforesaid Misc. case, both parties
adduced their evidence to substantiate their case and after hearing the parties and perusing the record, the learned Sub- Judge dismissed the aforesaid
Misc. case vide its order dated 17.08.2017.
Being aggrieved and dissatisfied with the aforesaid order, appellant filed Misc. Appeal No. 842 of 2017 before this Hon’ble Court. The plaintiff-
respondent entered appearance and contested the appeal taking specific plea that despite valid service of notice and having knowledge of pendency of
Title Suit No. 112 of 2012, defendant-appellant chose not to appear in the Suit. This Court, vide order dated 01.12.2017, arrived at a definite conclusion
that despite knowledge of filing and pendency of Title Suit No. 112/2012, the appellant herein, who was defendant in that suit, deliberately and
knowingly refused to receive summons which was validly served upon her and did not take pain to put her appearance in the case and contest it
which, accordingly, has proceeded ex-parte against her and thereby this Court declined to interfere with the order passed by Sub- Judge in Misc. Case
No. 01 of 2015 and dismissed the Misc. Appeal, vide judgment dated 01.12.2017. Being aggrieved and dissatisfied by the aforesaid judgment, the
appellant filed S.L.P. No. 2383 of 2018 before the Hon’ble Supreme Court of India which too was dismissed vide order dated 02.02.2018.
Learned counsel for the plaintiff-respondent submits that in this manner, the order passed by learned Sub-Judge in Misc. Case no.01/2015, declining to
interfere with the ex-parte judgment and decree passed in Title Suit No. 112 of 2012 has been upheld up to the Hon’ble Apex Court. The
appellant is bent upon to frustrate the fruits of aforesaid judgment and decree passed in Title Suit No. 112/12 by way of filing different petitions which
are not maintainable in the eye of law. In fact, the appellant is doing act of “Forum Huntingâ€. In such attempt, she filed one Misc. case No.
01/2018 in the Court of learned Sub-Judge-7th, Patna City, under Section 47 of the C.P.C. making objection with regard to execution of judgment and
decree on the ground of its inexecutability. The aforesaid Misc. case was admitted on 07.03. 2018 which was challenged by the plaintiff-respondent
before this Court by filing Civil Misc. Case No. 602 of 2018. The aforesaid order dated 07.03. 2018 passed by Sub-Judge-7th Patna City, in Misc.
Case No. 1/18, was held unsustainable by this Court in Civil Misc. case no. 602 of 2018, vide order dated 30.4.2018, and the matter was remitted back
to the Executing Court to hear both sides and pass order on the petition of the judgment debtor filed U/s 47 of the C.P.C. within a period of two weeks
from the date of receipt of the order.
In compliance of the order dated 30.04.2018 passed by this Court as contained in Annexure-3 to this counter affidavit, learned Sub-Judge-II, Patna
City, heard the Misc. case No. 01/18 and after hearing both the parties, by a speaking order dated 12.10.2018, dismissed the said Misc. case holding
that the Executing Court cannot go behind the decree unless the same is passed by Court which has no jurisdiction to pass it and where the decree is
void due to any implication of law.
Thereafter, the appellant filed fresh Title Suit bearing Title Suit No. 93 of 2018 in the Court of Sub-Judge-1, Patna City, and in the said suit appellant
has propounded her case exactly similar to what she had pleaded in Misc. case No. 01/15 which was adjudicated up to the Hon’ble Supreme
Court of India. Moreover, the appellant has sought relief in Title Suit No. 93 of 2018 for declaration that the decree and judgment obtained ex-parte
dated 16.12.2013 in Title Suit No. 112 of 2012 by the Court of Sub-Judge-4th Patna City is void, invalidly obtained on the basis of forged agreement
and the sale deed executed by Sub-Judge-II, Patna City, in Execution Case No. 3/14, in favour of defendant-respondent behind plaintiff- appellant is
void, invalid, inoperative without payment of consideration and no title or possession can be conveyed to the defendant-respondent in the suit property.
The appellant, subsequent to filing of the aforesaid Title Suit, has filed the present First Appeal bearing F.A. No. 60 of 2018 in this Court which is also
based on same facts and in between the same parties for same cause of action. The reliefs sought for in this appeal are also same i.e. for setting aside
the ex-parte judgment and decree dated 16.12.2013 passed in Title Suit No. 112/12. The backgrounds taken in this First Appeal is almost similar which
has been made out in Title Suit No. 93/18. In this manner, the appellant is exhausting her remedy simultaneously in two parallel proceedings i.e. by
filing Title Suit No. 93/18 which is still pending in the Court of Sub-Judge- 1st, Patna City, and the present First Appeal which is not permissible in the
eye of law and the appellant will have to elect as to which proceeding she wants to pursue.
It has been submitted that conduct of the appellant can be seen from the fact that in Title Suit No. 93 of 2018 she has filed petition under Order
XXXIX Rule 1 and 2 read with Section 151 of CPC which has been dismissed vide order dated 30.01.2019 by recording a finding that the plaintiff
(appellant) in her plaint has not disclosed about the orders passed by this Court and the Hon’ble Apex Court against her. The Sub-Judge has
further arrived at definite conclusion that the plaintiff (appellant) has been using anti-social elements for threatening outside the Court which goes to
show that the plaintiff has indulged herself in illegal activities and she is also trying to mislead the Court. The Court below has held that neither prima
facie case nor balance of convenience lies in favour of plaintiff rather the defendant is subjected to harassment by the plaintiff since beginning. It has
also been held that plaintiff (appellant herein) has already dispossessed the defendant from the suit property and enjoying the same and hence there is
no irreparable loss caused to her and accordingly the said injunction petition was dismissed vide order dated 30.1.2019.
In this manner, appellant is giving rise to multiplicity of litigation. The plaintiff (appellant) has assailed the order dated 30.1.2019 by filing Misc. Appeal
No. 161 of 2019 which is pending adjudication. Learned counsel has further submitted that in the aforesaid background, and facts for the same cause
of action, the appellant is exhausting her remedy in two parallel proceedings simultaneously i.e. Title Suit No. 93/18 and F.A. No. 60/18. Thus, in such
situation, there is every possibility of conflicting orders being passed by the Courts i.e. Civil Court, Patna City and this Court.
It is well-settled principle of law that a litigant cannot be allowed to run two parallel proceedings simultaneously for the same set of cause of action.
The litigant will have to elect as to which proceeding, he wants to pursue.
Learned counsel for the defendant-appellant, in reply to the aforesaid submission, has relied on a Full-Bench decision of Madhya Pradesh High Court
reported in AIR 2000 Madhya Pradesh 279 (Smt. Archana Kumar and another v. Purendu Prakash Mukherjee and another) wherein, the Hon’ble
Court has held that even after dismissal of the application under O.9, R. 13 for setting aside ex parte decree or judgment a regular first appeal under
S.96(2) is maintainable. Further a proceeding under O.9, R.13 and a regular appeal can simultaneously be prosecuted. It would be open to the affected
party to pray for stay of further proceedings in an appeal till the application under O.9, R. 13 is decided. It would be within the discretion of the
appellate Court to pass appropriate order in this regard.
Learned counsel for defendant-appellant has also relied on a decision reported in AIR 2005 SC 626 ( Bhanu Kumar Jain vs. Archana Kumar and
another) and has argued that 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 O.9, R.13 of the Code. He can take recourse to both the proceedings 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 O.9, R. 13 of
the code a petition under O.9, R. 13 would not be maintainable. The Explanation I appended to said provision does not suggest that the converse is
also true. However in a case where the application under O.9, R. 13 CPC gets dismissed first the doctrine of ‘issue estoppel’ as also ‘cause
of action estoppel’ may arise. As such, when an application under O.9, R.13 of the code is dismissed, the defendant can only avail a remedy
available there against viz. to prefer an appeal in terms of O. 43, R.1 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 O.9, R. 13, it may lead to conflict of decisions which is not contemplated in law.
This Court, after hearing the rival submissions of both the parties, finds that it is an admitted position that Title Suit no. 112 of 2012 filed by the
plaintiff-respondent for specific performance of contract has been decreed in his favour ex- parte on 16.12.2013
The appellant-defendant filed Misc. case no. 1 of 2015 against the aforesaid ex- parte decree passed in Title Suit no. 112/12 under order IX, Rule 13
of the C.P.C., which was also dismissed by learned Sub-Judge, vide order dated 17.8.2017. Thereafter, the appellant filed Misc. appeal no. 842 of
2017 against the aforesaid order dated 17.8.2017 before this Court. The Hon’ble Court declined to interfere with the order passed by Sub-Judge in
Misc. case no 1 of 2015 and dismissed the Misc. Appeal vide judgment dated 1.12.2017. The appellant thereafter preferred S.L.P. No. 2383 of 2018
before the Hon’ble Supreme Court of India which too was dismissed vide order dated 02.02.2018.
In this manner, the ex-parte judgment and decree passed in Title Suit no. 112 of 2012 has been upheld up to Hon’ble Apex Court. Thereafter, the
appellant was bent upon to frustrate the fruits of judgment and decree passed in favour of the plaintiff-respondent in Title Suit No. 112/12. He has
filed Title Suit No. 93/2018 before the Court of Sub-Judge-1, Patna City, seeking relief for declaration that decree and judgment obtained ex parte
dated 16.12.2013, in Title Suit no. 112/12, by the Court of Sub-Judge-4, Patna City, is void, invalidly obtained on the basis of forged agreement and the
sale deed executed by Sub-Judge-II, Patna City, in Execution Case No 03 of 2014, in favour of the defendant behind plaintiff (appellant herein )is void,
invlaid, inoperative without payment of consideration and no title or possession can be conveyed to the defendant in the suit property. The appellant
subsequent to filing of the aforesaid Title Suit, has filed the present First Appeal No. 60 of 2018, which is also based on same facts between the same
parties for same cause of action. The relief sought in this appeal is also for setting aside the ex-parte judgment and decree dated 16.12.2013, passed in
Title Suit No. 112/12.
The grounds taken in the first appeal is almost similar which have been made out in Title Suit No. 93/18. In this manner, the appellant is exhausting
simultaneously two parallel proceedings by filing Title Suit No. 93 of 2018 which is still pending in the court of Sub-Judge-1st, Patna City, and the
present First Appeal.
The Hon’ble Supreme Court in the case of Bhanu Kumar Jain (supra) relied upon by both parties has held in paragraph nos. 28 to 30 of the
judgment that 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 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. In a case of this nature,
however, the doctrine of ‘issue estoppel’ as also ‘cause of action estoppel’ may arise.
In the instant case, the appellant after availing the remedy under Order â€"IX, Rule 13 of the CPC for setting aside the ex-parte decree which was
upheld up to Hon’ble Supreme Court has filed Title Suit No. 93 of 2018 seeking relief for declaration that decree and judgment obtained ex- parte
dated 16.12.2013, in Title Suit no. 112 of 2012 by the Court of Sub- Judge-4, Patna City is void, invalidly obtained on the basis of forged agreement
and the sale deed executed by Sub-Judge-II, Patna City, in Execution Case no. 3/14, in favour of defendant behind the plaintiff (appellant herein) is
void, invalid, inoperative without payment of consideration and no title or possession can be conveyed to the defendant in the suit property. The
appellant, subsequent to filing of the aforesaid Title Suit, has filed the instant First Appeal based on same facts and in between the same parties for
same cause of action for setting aside the ex-parte judgment and decree dated 16.12.2013, passed in Title Suit no. 112 of 2012.
This Court is of the considered view that appellant cannot be allowed to indulge in an act of “Forum Hunting†in such a manner. The instant First
Appeal has been filed by the appellant during the pendency of Title Suit No. 93 of 2018 pending before the learned Sub-Judge -1, Patna City with the
same relief. In a case of this nature the doctrine of “ issue estoppel†as also “ cause of action estoppel†may arise as held by the Hon’ble
Apex Court in the case of Bhanu Kumar Jain (supra).
This Court, at present, is not hearing the appeal on merit, rather hearing only the Interlocutory Application No. 2 of 2019 filed by the defendant-
appellant making prayer for staying the further proceeding of Execution case no. 3 of 2014, pending in the Court of sub-Judge-II, Patna City, till
disposal of the First Appeal.
Therefore, no final view is being expressed by this Court with regard to maintainability of this appeal, at this stage. But, in view of the facts stated
above, this Court finds that appellant has not made out a prima facie case for staying the further proceeding in connection with Execution case no. 03
of 2014. It has been informed to this Court that appellant has earlier filed petition under order XXXIX Rules 1 and 2 read with Section 151 of CPC in
the Court below for injunction in pending Title Suit No. 93 of 2018, which was rejected by order dated 30.1.2019. Thereafter, the appellant has filed
Misc. Appeal no. 161 of 2019 against the aforesaid order passed by the Court below which is still pending for adjudication.
From such conduct of the appellant, this Court finds that appellant is bent upon to frustrate the fruits of judgment and decree awarded in favour of the
plaintiff-respondent and is only adopting act of “Forum Hunting†to frustrate the effect of judgment and decree passed in favour of plaintiff-
respondent by the Court below in Title Suit no. 112 of 2012, by judgment and decree dated 16.12.2013. Therefore, this Court is not inclined to stay the
further proceeding of Execution case no. 3 of 2014. This court further finds that no balance of convenience lies in favour of the defendant-appellant.
This Court finds by conduct of the defendant- appellant that irreparable loss has been caused to the plaintiff- respondent. Therefore, the instant
Interlocutory Application bearing no. 02 of 2019 is hereby rejected with cost of Rs. 5000/- payable by appellant to respondent within three weeks from
receipt/production of this order.
The point of maintainability of instant F.A. shall be considered first before proceeding into merit of F. A. at the time of final hearing of this Appeal.
This Interlocutory petition is, accordingly ,rejected.
Since both parties have appeared, list this First Appeal for final hearing on 1st August, 2019.