under Order 9 Rule 13 of the Code in terms of local amendment made by the State of Kerala in the first proviso to Order 9 Rule 13, wherein the words "after notice to them” were inserted. This local amendment made in the first proviso to Order 9 Rule 13 was applicable to defendant nos. 1 and 2 - no notice was served on defendant Nos. 1 and 2 before setting aside the ex parte decree and in their absence, the suit was restored. This was, in our view, one irregularity committed by the Trial Court while restoring the entire suit, though it was for the benefit of defendant Nos. 1 and 2.= In our view, defendant Nos. 1 and 2 were entitled to a notice of the proceedings under Order 9 Rule 13 of the Code in terms of local amendment made by the State of Kerala in the first proviso to Order 9 Rule 13, wherein the words "after notice to them” were inserted. This local amendment made in the first proviso to Order 9 Rule 13 was applicable to defendant nos. 1 and 2. When enquired, it was stated that no notice was served on defendant Nos. 1 and 2 before setting aside the ex parte decree and in their absence, the suit was restored. This was, in our view, one irregularity committed by the Trial Court while restoring the entire suit, though it was for the benefit of defendant Nos. 1 and 2.- The Trial Court will now issue fresh notice to defendant Nos. 1 and 2 in the suit by usual mode of service and then by substituted service, if need arises. It is only after the service of the suit is held complete on defendant Nos. 1 and 2, the Trial Court will proceed with the trial in the suit on merits. So far as defendant Nos. 3 and 4 are concerned, they are already served and hence they are not entitled to any noticeJayaprakash & Anr. ….Appellant(s) VERSUS T.S. David & Ors. ….Respondent(s).

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 883 OF 2018
(Arising out of S.L.P.(c) No. 14306 of 2015)
Jayaprakash & Anr. ….Appellant(s)
VERSUS
T.S. David & Ors. ….Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed by the plaintiffs against the
final judgment and order dated 05.11.2014 passed
by the High Court of Kerala at Ernakulam in R.F.A.
No.541 of 2007 whereby the High Court allowed the
2
appeal filed by defendant Nos. 3 & 4 (respondent
Nos.1 & 2 herein) and set aside the judgment and
decree dated 20.02.2007 passed by the sub-Court,
Kottayam in O.S. No.337 of 2001.
3. In order to appreciate the short controversy
involved in the appeal, few relevant facts need
mention hereinbelow.
4. The appellants are the plaintiffs whereas the
respondents are the defendants in the civil suit out
of which this appeal arises.
5. The appellants filed a civil suit being O.S. No.
337/2001 against the respondents (defendants) in
the Court of Principal Sub-Judge, Kottayam for
specific performance of the agreement (Ex-A-1) for
sale of suit properties to the appellants by the
respondents (defendant Nos.1-4) for a total
consideration of Rs.5,70,000/-.
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6. According to the appellants, since defendant
Nos. 1 and 2 (original owners of the suit properties)
failed to sell the suit properties to the appellants as
per the terms of the agreement despite taking
advance money from the appellants and instead
sold the suit properties to defendant Nos. 3 and 4,
the appellants filed the suit against defendant Nos.
1 to 4 seeking specific performance of the agreement
(Ex-A-1) against defendant Nos. 1 and 2.
7. The defendants (respondents) were served by
substituted service. They, however, remained ex
parte since inception. The Trial Court, therefore, on
27.02.2004 passed an ex parte decree against the
defendants (respondents) jointly and severally.
8. Thereafter, defendant Nos. 3 and 4 applied for
setting aside of the ex parte decree dated 27.2.2004
under Order 9 Rule 13 of the Code of Civil
Procedure, 1908. The Trial Court, by order
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20.12.2006, allowed the application and set aside
the ex parte decree and restored the original suit to
its file to decide the suit afresh on merits.
9. On remand, defendant Nos. 3 and 4 filed the
written statement. So far as defendant Nos. 1 and 2
are concerned, they remained ex parte. The Trial
Court, by judgment/decree dated 20.02.2007, again
decreed the suit against all the four defendants
jointly and severally.
10. Defendant Nos. 3 and 4 felt aggrieved and filed
first appeal before the High Court. By impugned
judgment, the High Court allowed the appeal and
while setting aside the judgment/decree of the Trial
Court again remanded the case to the Trial Court
for fresh trial on merits. In the opinion of the High
Court, the Trial Court did not decide the issues
arising in the case properly and, therefore, the
entire case needs a fresh consideration with a
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liberty to parties to adduce further evidence. The
case was accordingly remanded to the Trial Court.
11. The plaintiffs felt aggrieved by the impugned
judgment and have filed this appeal by way of
special leave in this Court.
12. Therefore, the short question, which arises
for consideration in this appeal, is whether the High
Court was justified in remanding the case to the
Trial Court for its de novo trial.
13. Heard Mr. C.S. Rajan, learned senior counsel
appearing for the appellants and Mr. Thomas P.
Joseph, learned senior counsel for respondent Nos.
3 & 4 and Mr. C.K. Sasi, learned counsel for
respondent Nos. 1 & 2.
14. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no merit in this appeal.
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15. In our opinion, the remand order of the High
Court to try the suit afresh on merits appears to be
correct, though we uphold the remand order on
additional grounds, which were not taken note of by
the High Court and nor urged here. In our opinion,
therefore, the remand of the case to Trial Court is
otherwise called for.
16. It is not in dispute that all the four defendants
(1 to 4) suffered ex parte decree on 27.02.2004
jointly and severally. It is also not in dispute that
only defendant Nos. 3 and 4 applied to the Court for
setting aside the decree under Order 9 Rule 13 of
the Code. This application was allowed by the Trial
Court by order dated 20.12.2005 which resulted in
setting aside of the entire ex parte decree against all
the defendants, including defendant Nos. 1 and 2
though they did not apply for its setting aside. The
7
suit was accordingly restored to its file for fresh trial
on merits.
17. In our view, defendant Nos. 1 and 2 were
entitled to a notice of the proceedings under Order 9
Rule 13 of the Code in terms of local amendment
made by the State of Kerala in the first proviso to
Order 9 Rule 13, wherein the words "after notice to
them” were inserted. This local amendment made in
the first proviso to Order 9 Rule 13 was applicable
to defendant nos. 1 and 2. When enquired, it was
stated that no notice was served on defendant Nos.
1 and 2 before setting aside the ex parte decree and
in their absence, the suit was restored. This was, in
our view, one irregularity committed by the Trial
Court while restoring the entire suit, though it was
for the benefit of defendant Nos. 1 and 2.
18. Be that as it may, in our considered opinion,
after the suit was restored at the instance of
8
defendant Nos. 3 and 4, the Trial Court committed
another error inasmuch as it again did not issue
fresh notice of the suit to defendant Nos. 1 and 2. In
other words, defendant Nos. 1 and 2 were entitled
for a fresh notice of the suit once restored despite
their non-appearance in the first round of trial in
the suit and in Order 9 Rule 13 proceedings.
19. The Trial Court, however, again decreed the
suit by judgment/decree dated 20.02.2007 ex parte
against defendant Nos. 1 and 2 but after hearing
only defendant Nos. 3 and 4. It is against this
judgment and decree which was impugned in
appeal by defendant Nos. 3 and 4, which was again
set aside by the High Court by impugned judgment
resulting in remand of the case to the Trial Court for
fresh trial on merits giving rise to filing of this
appeal by the plaintiffs.
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20. As mentioned above, though we are inclined to
uphold the remand order, but that we do so on the
basis of aforementioned two grounds noticed by us
in the proceedings in the suit and in Order 9 Rule
13 proceedings. The two legal infirmities noticed by
us in the proceedings call for remand of the case to
the Trial Court for fresh adjudication of the civil suit
on merits in accordance with law.
21. In the light of the foregoing discussion, the
appeal fails and is accordingly dismissed.
22. The Trial Court will now issue fresh notice to
defendant Nos. 1 and 2 in the suit by usual mode of
service and then by substituted service, if need
arises. It is only after the service of the suit is held
complete on defendant Nos. 1 and 2, the Trial Court
will proceed with the trial in the suit on merits.
10
23. So far as defendant Nos. 3 and 4 are
concerned, they are already served and hence they
are not entitled to any notice.
24. Parties to appear before the Trial Court in the
Suit on 05.02.2018 to enable the Trial Court to
proceed in the trial as directed above. The Trial
Court will decide the suit on merits strictly in
accordance with law expeditiously.



………...................................J.
[R.K. AGRAWAL]


…...……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
January 25, 2018