Even an ex-parte judgement/ order has to be on merits

 According to Order XX of the Civil Procedure Code, 1908 (hereinafter referred to as the CPC), no suit can be decreed as a matter of course, and every judgment has to be on merits.

Every judgment passed by a court of law has to be on merits, irrespective of the fact, whether or not, the defendant appears before the court of law and defends himself.

If the defendant appears before the court and states that he does not want to defend himself, that will not enable the court to give an automatic decree in favour of the plaintiff. The court can, after due application of mind, decree or even reject the claim of the plaintiff.

It is important to note that if, the court finds that matter before it is complex and it would require legal assistance to decide the matter on merits then the court, on its own motion, can appoint an advocate to assist it, and such advocate is called amicus curiae

• In the matter of: Lakshmi Ram Bhuyan V/s Hari Prasad Bhuyan, (2003) 1 SCC 197, it was held that:

“… Order XX requires a judgment to contain all the issues and findings or decision thereon with the reasons therefore. The judgment has to state the relief allowed to a party. The preparation of decree follows the judgment. The decree shall agree with the judgment. The decree shall contain, inter alia, particulars of the claim and shall specify clearly the relief granted or other determination of the suit. The decree shall also state the amount of costs incurred in the suit and by whom or out of what property and in what proportions such costs are to be paid.”

• In the matter of: Ramesh Chand Ardawatiya V/s Anil Pajwani, AIR 2003 SC 2508, while considering the provisions of Order IX, Rule 6 and Order VIII, Rule 10 of the CPC, it was observed that even if the suit proceeds ex-parte under Order IX, Rule 6 of the CPC, the necessity of proof by the plaintiff of its case cannot be dispensed with.

• Maya Devi V/s Lalta Prasad, (2015) 5 SCC 588, it was held that the absence of defendant to contest the suit does not invite a punishment in the form of an automatic decree.

• State of Rajasthan V/s Ani, (1997) 6 SCC 162, it was held that Section 165 of the Indian Evidence Act, 1872 confers vast and unrestricted powers on the trial court to put “any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant” in order to discover relevant facts. 

Plaintiff has to stand on its own legs:

If the defendant submits to the court that he does not want to defend himself, as a matter of his choice then this does not mean that the defendant admits the assertions made against him by the plaintiff in the plaint. The plaintiff still has to prove his case by leading necessary and cogent evidence, as required
 In the matter of: Anil Rishi V/s Gurbaksh Singh, (2006) 5 SCC 558, it was observed that:
                                                                                                                                                                             “… The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act… In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. … In terms of Section 102 [of the IEA] the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.”                                   

Allahabad High Court - Every court/tribunal has an inherent power of procedural review and the same can not be denied to the petitioner merely for the reason that there is no provision to that effect in the Act/Statute.

 In the Matter of M/S T.G.B. Realty Pvt. Ltd. Complaint no. WRIT - C No. - 32301 of 2019 decided on 17.10.2019  before Allahabad High Court

Fact of the Case.

• The petitioner is a builder and its project Neel Gagan, Siddhartha Vihar, Ghaziabad is registered under the Real Estate Regulatory Authority

• The petitioner by means of this writ petition has made a prayer for quashing of the orders dated 10.4.2018 dated 27.4.2019 passed by the RERA in complaint case no. 1120173596 Prakash Chandra Agrawal Vs.M/s. TGB Reality Private Limited and for quashing of the recovery certificate dated 17.8.1999 and the recovery citation dated 12.9.2019 issued in pursuance to the aforesaid orders.

Argument by the Applicant

• both the above orders have been passed without any notice and opportunity of hearing to the petitioner.

• The complainant has given the wrong address of the petitioner in the complaint and the notice was sent on the wrong address which was never served upon the petitioner. 

• it was denied opportunity of hearing

• If the petitioner has not been served with any notice or given opportunity of hearing, the remedy is by way of an application for recall of the impugned orders before the RERA.

Argument by the Defendant

• RERA is not entertaining the recall application for the reason that there is no provision under the Act for the said purpose.

Final Order

• It is well recognized that every court/tribunal has an inherent power of procedural review and the same can not be denied to the petitioner merely for the reason that there is no provision to that effect in the Act/Statute.

• we dispose of the writ petition with liberty to the petitioner to apply for recall of the two orders impugned in this writ petition passed by the RERA. In case any such recall application/(s) are filed, the RERA would entertain the same and dispose them of in accordance with law most expeditiously, if possible, within a period of one month from the date of the filing of such application (s).