Yusuf Vs. Mofzal Ahmed Sowdagar, 45 DLR (AD) (1993) 178

Case No: CA 131 of 1978 from SMA 10 of 1975

Judge: Kemaluddin Hossain,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,,

Citation: 45 DLR (AD) (1993) 178

Case Year: 1993

Appellant: Yusuf

Respondent: Mofzal Ahmed Sowdagar

Subject: Civil Law,

Delivery Date: 1979-3-16

Supreme Court
Appellate Division
Kemaluddin Hossain CJ
Ruhul Islam J
KM Sublian J.
Mofzal Ahmed Sowdagar
March 16th, 1979
Code of Civil Procedure (V of 1908)
Order XI rule 21
The foundation for exercise of power under this provision of law is the fulfillment of two requirements- the first is the failure of interrogated party to comply with any order to answer the interrogatory, and the second is the interrogating party applying to the Court to impose the penalty. ….(7)
Cases Referred to-
Md. Shamstil Huda Vs. Md. Mozammel Huq, 26 DLR 519; Abdul Aziz Vs. Raj Chhabra, AIR 1968 All (Lucknow Bench) 119; Maharaj Mohesur Singh Vs. The Bengal Government, 7 MIA 283; Shoonath Vs. Remnath, 10 MIA 413; Pichu Ayyangar Vs. Perarulala Ramanuja Joer Seamigal, ILR 1940 Mad 901.
Lawyers Involved:
Khandker Mahbubuddin Ahmed, Advocate, instructed by SM 11uq, Advocate-on-Record–For the Appellant.
Md. Fazlul Karim, Advocate, instructed by Md. Afiab Hossain, Advocate-on-Record-For the Respondent.
CA 131 of 1978 from SMA 10 of 1975.
Kemaluddin Hossain CJ.
This appeal is on grant of special leave. Interpretation on the scope of section 105(1) of the Code of Civil Procedure is involved in the present appeal.

2. Proper appreciation of the point that has been raised in this appeal a narration of facts in brief is necessary. The plaintiff instituted OS No. 230 of 1969 in the 1st Court of Munsif, Chittagong on 8.9.69 alleging that the defendant was a monthly tenant under him in the suit premises. The tenant defaulted in payment of rent for which the plaintiff instituted the suit for ejectment after determining the tenancy by a notice under section 106 of the Transfer of Property Act.

3. The defendant in denying the plaint case in denying raised the question of title of the plaintiff. This written statement was accepted on 25.11.69 and issues were framed on 10. 1. 1970. The plaintiff on 3.2.70 prayed for leave to the court to serve interrogatories and the court directed the defendant to reply to interrogatories of the plaintiff by 12.2.70. On this date a petition for time to file interrogatories was submitted by the defendant, and the court adjourned the case till 26.2.70 for that purpose, and issued a notice upon him to showcause why the written statement of the defendant should not be expunged. On 26.2.70 the defendant filed another petition for time but did not reply to interrogatories. This petition was rejected and the trial Court expunged the written statement and fixed 24.3.70 for ex parte disposal of the suit. On that date the defendant filed a petition under section 151 of the Code of Civil Procedure for acceptance of the written statement after setting aside the order dated 26.2.70. The learned Munsif by his order dated 1.4.70 rejected the petition under section 151 of the Code on the ground that the written statement had been expunged under Order 11, rule 21 of the Code of Civil Procedure, and that the order was appealable. The defendant thereafter on 10.4.70 filed a petition under Order 47, rule I read with section 151 of the Code and this was marked as Miscellaneous Case No. 84 of 1970. Again on 23.4.71 the defendant filed Miscellaneous Appeal No. 174 of 1970 against the order dated 26.2.70. This Miscellaneous Appeal was dismissed by the appellate Court below as time barred. Against this order a Rule was issued by the High Court being Civil Rule No. 483 of 1971. In the meantime on 6.8.71 the review petition under Order 47 read with section 151 of the Code (Miscellaneous Case No. 84 of 1970) was dismissed. Then on 15.1.74 the Civil Rule was heard by a Single Judge and the question canvassed before the High Court was whether the delay has been sufficiently explained in filing the appeal. The learned Judge after hearing the parties came to the conclusion that the delay in filing the appeal beyond time was not satisfactorily explained and in that view of the matter discharged the Rule. Then on 17.9.74 a review petition was filed before the learned Single Judge, but that was rejected. On 15.11.74 the suit was taken up for ex parte hearing and it was decreed. Against this ex parte decree, an appeal was filed and the appellate Court below by its order dated 7.2.75 allowed the appeal, and sent the case back on remand to the trial Court for fresh trial after accepting the written statement filed by the defendant earlier.

4. On Second Miscellaneous Appeal taken to the High Court Division by the plaintiff, the learned Single Judge affirmed the order of the court of appeal below and while doing so observed that the trial Court ought to have entertained the application under section 151 of the Code, and on that question dilated at some length in the Judgment. It was also observed that the striking off the written statement was harsh and that it was done without plaintiff having filed an application to that effect.

5. Leave was granted to consider two questions: First, in view of the provisions of section 105(1) of the Code when the interlocutory order striking out the defence has been appealed against and a revision taken to the High Court, whether in view of the provision of section 105(1) of the Code, this order could be challenged in an appeal taken from the decree passed in the suit. The second question, which is dependent on the first, is whether the ex parte decree is a valid order in terms of the Code of Civil Procedure.

6. After hearing Mr. Khandker Mahbubuddin Ahmed for the Appellant and Mr. Md. Faziul Karim for the Respondent, we felt the necessity of taking further assistance of the Bar, as the question under consideration is of general public importance, and there is no uniform decision to cover it. Accordingly, we requested Mr. Pal to appear as amicus curiae to assist the court on the fist question, namely, when an interlocutory order has been unsuccessfully appealed from, whether any error, defect or irregularity in the order affecting the decision of the case, could be set forth as a ground of objection in the memorandum of appeal from the decree in the suit as provided under section 105(1) of the Code of Civil Procedure, and if an appeal has been taken from an appealable interlocutory order and thereafter a revision taken to the High Court Division, whether that order is challengeable subsequently under section 105(1) of the Code in an appeal taken from that decree passed in the Suit. We have been greatly benefited by the learned arguments from the Bar; and we now proceed to discuss the point without specifying the respective points of argument urged by different Counsels.

7. Before discussing the first point in the leave order, which is the central question determining the fate of the appeal, we like to deal with two subsidiary questions involved in this appeal. The first is the legality of the order passed by the trial Court on 26.2.70 striking out the defence without any application being made by the plaintiff in that regard. A reference to Order 11, rule 2 1 indicates that it is in two parts. The first part provides for the liability incurred by the defaulting party which fails to comply with any order to answer the interrogatories, etc, and the other part prescribes the penalty for default, and it is that, if the defaulting party is the plaintiff the penalty is the dismissal of the suit for non-prosecution, and a defendant, his defence is to be struck off, and he would be placed in the position as if he had not defended. The second part of the rule also provides a procedure for enforcing the penalty, and it must be on an application of the interrogating party, and upon such an application, the court assumes the jurisdiction to impose the penalty under this rule. The foundation for the exercise of the power under this rule is the fulfillment of the two requirements of rule 21 of Order 11 of the Code. The first is the failure of the interrogated party to comply with any order to answer the interrogatory, and the second is the interrogatoring party applying to the court impose the penalty. In the absence of an application, the exercise of jurisdiction will manifestly be illegal In the case of Md. Shamsul Ruda vs Md. Mozammel Huq 26 DLR 519 a Division Bench of the Dacca High Court has, following some earlier decisions, in substance so held though not articulately. Clear elucidation of this rule is to be found in the decision of a Division Bench of the Allahabad High Court, in the case of Abdul Aziz Vs. Raj Chhobra AIR 1968 All (Lucknow Bench) 119 it has been held in this case that the court, amongst others, cannot exercise this function under this rule suo motu, unless there is a motion from the interrogating party. The view expressed there is that an order passed 'In violation of this rule is without jurisdiction which deserves to be set aside. The expression "without jurisdiction" was used to mean what we understand, as "illegal," or not warranted by law", and liable to be set aside.           

8. In the present appeal, of course, Mr. Khandker Mahbubuddin Ahmed has found it difficulty to show that there was any application made by the interrogating party for the exercise of the power of striking out the defence. He however says that though there is no written application on record it should be implied that there was an oral application. In such a drastic action, the question of invoking the jurisdiction by implication cannot arise, unless there is a positive compliance. Of course, it may be  observed that there is no bar for making an oral application, but there must be a positive manifestation  of making of that application on record, and exercise of the power by the court after due consideration of all aspects of the case, But by this the problem is not solved in this appeal. The order was unsuccessfully appealed against and a revision against the order failed and so we are drawn to the question in the leave order which will be dealt with after we have considered the second preliminary consideration.

9. The second one is that, some observation has been made by the learned Single Judge on the competence of the defendant's application under section 151 of the Code, saying that it ought to have been entertained by the trial Court, and this observation requires consideration. The learned Judge has observed that because an appeal has been provide for under the Code, it is not always, that under no circumstances the inherent jurisdiction could not be invoked. This proposition has been rather stated too broadly. It is to be remembered that the exercise of jurisdiction under section 151 is purely discretionary, and an order made under section 151 of the Code is not open to appeal, though it is revisable by the High Court under certain circumstances. In any event, if the trial Court has not exercised its discretion no appeal lies to challenge that order. This disposes of two preliminary considerations, and we now revert to the main question involved in this appeal.

10. In order to appreciate the question section 105(1) of the Code may be set out:

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

The section says that an interlocutory order subject to other provisions of the Code, could be challenged in appeal from the decree, if it affects die decision of the case. The interlocutory orders are not otherwise appealable except to the extent provided in section 104 read with Order 43, rule I of the Code. Keeping the provisions of the Code in view, we find that so far as interlocutory orders are concerned, they can be classified for the purpose of this section broadly into two categories. The first is those orders which fall under section 104 read with Order 43, rule I of the Code, and the other is all other interlocutory orders which are not appealable. The appealable orders, if not appealed, and all non‑appealable orders, not taken to the High Court in revision, could be challenged as a ground of an appeal, if an appeal is taken from a decree, and the order affects the decision of the case. The defect in the interlocutory order is one of legality either in law or of procedure. Sub‑section (2) of section 105 is an exception to sub‑section (1) and it provides that where there is a remand order and the aggrieved party does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

11. If we keep the entire provision of section 105 of the Code in view, we find that a residuary provision has been made in this section with regard to interlocutory orders. It first makes an interlocu­tory order non‑appealable, and secondly, the right to impugn these interlocutory orders is given subject to certain safeguards for an aggrieved party. Reading in this manner, we find that an appealable interlocutory order, if not appealed from, can be challenged in an appeal from a decree, if it affects the decision of the case. A non‑appealable, interlocutory order could under this section be challenged, if the aggrieved party has not moved the High Court in revision, and if the order affects of course, the decision of the case. There is no dispute on this point, and this proposi­tion has long been laid down by the Privy Council on the language of the earlier enactments before the present Civil Procedure Code in the case of Maharajah Moheshur Sing Vs. The Bengal Government 7 MIA 283. The classical passage may be quoted:

"Before we enter into the particulars of that question, we deem it right to notice an objection which was taken at the bar on the part of the Respondents, that it was too late now to impugn the regularity of the proceeding to grant the review; that if the Appellant deemed himself aggrieved by it, he ought to have appealed at the time, and that he was too late in doing so after a decision had been pronounced against him.

"We are of opinion that this objection cannot be sustained. We are not aware of any law or regulation prevailing in India, which renders it imperative upon the suit or to appeal from every interlocutory order by which he may conceive himself aggrieved, under the penalty, if he does not so do, of forfeiting forever the benefit of the consideration of the appellate Court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose upon the suitor the necessity of so appealing; whereby on the one hand he might be harassed with endless expense and delay, and on the other, inflict upon his opponent similar calamities. We believe that there have been very many cases before this Tribunal in which their Lordships have deemed it to be their duty to correct erroneous interlocutory orders, though not brought under their consideration until the whole cause had been decided, and brought whether by appeal for adjudication."    

This view was reiterated in a subsequent case by the Privy Council in Shoonath Vs. Remnath 10 MIA 413 where it has been held that a party is not bound to appeal from every interlocutory order which is a step in the procedure that leads to a final decree. It is open on appeal from such final decree to question an interlocutory order. The present Code has recognised the principles set out by the Privy Council with some modification, and there is nothing in the present Code which militates with the view expressed by the Privy Council.

12. We now enter into that aspect of the question for which we sought the assistance of Mr. Pal as Amicus Curiae, though the assistance of Mr. Khandker Mahbubuddin Ahmed and Mr. Fazul Karim is ample. The question is, if the aggrieved party has taken an appeal from appealable interlocutory order and thereafter a revision, as in the present case, or if a non-appealable order has been taken a revision to the High Court, whether these interlocutory orders could be challenged, when an appeal is taken from the decree. The Code is to be interpreted as a whole consistent with the general principles of law. If a party is allowed to challenge an order twice over, certain anomalies may arise, and that is why those orders could not be allowed to be challenged, if [hey had been challenged in the higher court either in appeal or revision or both. In that view of the matter the decision of the Madras High Court in the case of Pichu Ayyangar Vs. Perarulala Ramanuja Jeer Seamigal, ILR 1940 Mad 901 holding to the contrary does not commend to us. The first anomaly is, if a party has taken an appeal from an appealable order and he is again allowed to challenge it, he gets second chance to re‑open the order which is against the basic concept of jurisprudence on the finality of an order. The second is that the court of co‑ordinate jurisdiction will be called upon to revise its own earlier order once it has taken a view on that order. We, however, note that subject to review, all such orders are final and therefore cannot collaterally be challenged over again. The same is the position with a non- appealable interlocutory order, if challenged in revision. A third anomaly will arise in case where revision to the High Court has been taken in that if the decree is appealable to the District Judge, an order passed in revision by the High Court will be challengeable before a court of inferior jurisdiction which totally militates against the jurisdiction of the superior court.

13. Bearing this principle in mind, if we now look at the facts of the present case, we find that the order striking out the defence by the Munsif was an illegal order, and it could have been challenged either by taking an appeal as it was an appealable order, of if no appeal had been taken, under sub‑section (1) of section 105 of the Code as a ground in an appeal from the decree. It is no doubt true, that this order has very seriously affected the decision of the case, inasmuchas, the defendant has been nonsuited and thereby precluded from setting up his defence. But then, the order was appealed from and that was dismissed on ground of limitation. A revision was taken to the High Court challenging the legality of the appellate Court's order on the question of limitation and the High Court upheld the view of the appellate Court and against that decision of the High Court, a review application was also dismissed. So the order is not open to challenge over again under section 105(1) of the Code.  

14. In this connection a minor question h8s cropped up in that if an appeal is taken and if it is dismissed on ground of limitation, whether the order could subsequently be challenged on the view ft the appeal was not heard on merits. Though t1to proposition sounds plausible, and which appears to have weighed with the first appellate Court, the provision of section 3 of the Limitation Act stands in the way of accepting it as correct. It clearly sap that in appeal preferred after the period of limitation prescribed thereof by the first schedule shall dismissed, although limitation has not been set up as a defence. The mandate is peremptory. Under the first schedule of the Limitation Act, the period of limitation for appealable decree and appealable order is the same and no distinction could be made on that score, If an appeal is dismissed on ground of limitation, it is a dismissal of the appeal as such, and no distinction could be made regarding merit, or on ground of limitation. In that view of the matter, the appeal dismissed on ground of limitation is the final disposal, and so the striking out of the defence could not be challenged on appeal from the decree in this particular case.

15. We now turn to the second ground of the leave order. In view of our decision on the first question, the importance of this question has been greatly diminished. If the order striking off the defence stands, then the decree that has followed is very difficult to resist. It is true, Order 20, rule 4(2) of the Code clearly prescribes for the Judgments other than the Court of Small Cause Courts, that they shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision; and rule 5 says that in suits in which issues have been framed, the court shall state its finding or decision with the reasons therefore upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit. It is to be remembered that the Code has made no provision for writing a separate kind of Judgment for ex parte matter. Looked at from this stand point, the Judgment of the trial Court fails to satisfy the condition prescribed by the, Code. It is sketchy and too cryptic to contain any sufficient statement of facts or reason therefore, but then the defect is, in the context of the present case, a formal one, and though we do not approve of the manner in which the ex parte Judgment has been written, still it being a formal defect, we refrain from interfering with it in the result, the appeal is allowed with cost. The decisions of the High Court Division and the first Appellate Court are set aside and that of the trial Court is restored.