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SUPREME COURT OF INDIA
VIKRAM NATH, AHSANUDDIN AMANULLAH, JJ.
Y.P. Lele – Appellant
Versus
Maharashtra State Electricity Distribution Company Ltd. & Ors. - Respondents
Civil Appeal No. of 2023(Arising out of SLP (C) No. 3543 of 2019)
Decided on : 16-08-2023
Civil Procedure Code, 1908 – Order IX Rule 13 read with Order XVII Rule 2 – Setting aside ex parte decree – Money suit – Once Counsel had withdrawn his Vakalatnama, in normal course, Trial Court ought to have issued notice to defendants to engage another Counsel, which it did not do and proceeded ex parte – Trial Court committed error in doing so – Trial Court, in its wisdom and discretion having allowed application under Order IX Rule 13 CPC, High Court ought to have refrained itself from interfering with an order which advanced cause of justice by affording opportunities to both parties so that suit could be decided on merits – Impugned order of High Court set aside – Trial Court will proceed to decide Special Civil Suit on its own merits. (Paras 21, 22 and 23)
Facts of the case:
Present appeal assails the correctness of judgment and order dated 27.06.2018 passed by Single Judge of the Bombay High Court in Civil Writ Petition No. 1488 of 2015 whereby the petition was allowed, the order dated 30.09.2014 passed by Trial Court allowing the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 was set aside and the ex parte decree was maintained.
Findings of Court:
Appellant is one of the five Directors of the defendant no.1. Although relief claimed was for joint and several liability of each of Directors, in our view the deposit of 50% at hands of appellant would be too excessive. Amount deposited by appellant under the order of this Court, which is lying in Trial Court, may be adjusted as per direction given herein.
Under Order IX Rule 13 CPC, Court, while allowing application, could impose such terms and conditions as it deems fit and this being a money decree, Trial Court could have required appellant to under Order IX Rule 13 CPC, Court, while allowing application, could impose such terms and conditions as it deems fit and this being a money decree, Trial Court could have required appellant to deposit some amount – 20% of suit claim, along with interest accrued thereon, may be retained by Trial Court and may continue to deposit the same in Fixed Deposit – Whereas 30%, along with accrued interest thereon, may be returned to appellant.
Result : Appeal allowed.
JUDGMENT :
VIKRAM NATH, J.
Leave granted.
2. The appellant is the original defendant no. 5, as described in the plaint of the Special Civil Suit No. 125 of 1988.
3. The present appeal assails the correctness of judgment and order dated 27.06.2018 passed by the learned Single Judge of the Bombay High Court in Civil Writ Petition No. 1488 of 2015 titled “Maharashtra State Electricity Board vs. Miraj Electric Supply Co. Ltd. Ors.”, whereby the petition was allowed, the order dated 30.09.2014 passed by the Trial Court allowing the application under order IX Rule 13 of the Code of Civil Procedure, 19081[In short, “CPC”] was set aside and the ex parte decree was maintained.
4. Shorn of unnecessary facts, Maharashtra State Electricity Board2[In short, “MSEB”] filed Special Civil Suit No. 125 of 1988 in the Court of Civil Judge, Senior Division at Sangli impleading Miraj Electric Supply Co. Ltd. 3[In short, “MESC”] as defendant no. 1 and its five Directors as defendant nos. 2 to 6 for recovery of Rs. 1,42,85,177.47/- with costs of suit and further praying for interest at the rate of 18% per annum from the date of presentation of the suit till realisation of the aforesaid amount. The defendants appeared and filed their written statements. The plaintiff’s evidence was being led and at that stage the counsel for the defendants Shri. M.B. Karmarkar withdrew his Vakalatnama vide Ex. 112. He had also not cross-examined the witnesses. The Trial Court, on 04.12.2004, directed for suit to proceed under Order XVII Rule 2 of CPC against the defendants. Thereafter the Trial Court proceeded to record the evidence of the plaintiff and, vide judgment and order dated 29.01.2005, decreed the suit ex parte with costs. The operative portion of the judgment is reproduced hereunder:
1. The defendants No. 1 to 6 jointly and severally to pay Rs. 1,42,85,177.47 Ps. (Rs. One crore, forty two lakhs, eighty five thousands, one hundred seventy seven and forty seven paise only) to the plaintiff board M.S.E.B.). They shall pay interest at the rateof Rs. 18% p.a. on the arrears amount of Rs. 1,0490032.36 Ps. (Rs. One crores four lakhs nineteen thousands thirty two and thirty six paise only) from the date of the suit till its realization.
2. Decree be drawn up accordingly.”
5. The defendants, on coming to know of the ex parte decree, belatedly filed an application under Order IX Rule 13 CPC accompanied by an application for condonation of delay under Section 5 of the Limitation Act, 1963 on 21.09.2006. The Trial Court, vide order dated 20.09.2010, allowed the application under Section 5 of the Limitation Act finding the explanation to be satisfactory for the delay caused with costs of Rs. 3,000/- on the defendants to be deposited within ten days.
6. Thereafter, the Trial Court vide order dated 30.09.2014, allowed the application under Order IX Rule 13 CPC, set aside the ex parte decree dated 29.01.2005 while imposing fine of Rs. 1,000/- and restored the Special Civil Suit No. 125 of 1988 to its original number.
7. The plaintiff-MSEB preferred a Writ Petition before the High Court under Articles 226 and 227 of the Constitution. The High Court, by the impugned order dated 12.01.2015, allowed the Writ Petition, set aside the order dated 30.09.2014. As a result, the suit of the respondent-MSEB stood decreed ex parte. The petition was allowed on the ground that the application under Order IX Rule 13 CPC would not be maintainable in as much as the High Court had applied the explanation under Order XVII Rule 2 CPC.
8. Aggrieved by the same, the present appeal has been preferred by impleading MSEB as respondent no.1, the contesting respondent, and also impleading the other four Directors as respondent nos. 3 to 6. It also impleaded MESC as respondent no. 2. At some stage during the pendency before this Court, the respondent nos. 2 to 6 were directed to be deleted from the array of parties vide order dated 21.10.2019. However later on, vid
The court reaffirmed that ex parte decrees can only be issued where proper notice is given, and that procedural irregularities void such decrees.
The service of notice to any adult family member, including a female, is valid despite local amendments restricting it to male members, thus upholding the decree passed. Refusal to appear without suf....
Setting aside ex-parte decree – Real test for adjudication of a petition under Order IX Rule 13 CPC is whether litigant upon learning about ex-parte decree takes immediate steps in filing application....
The court emphasized the liberal construction of 'sufficient cause' for setting aside an ex parte decree and the need to balance the interests of both parties to prevent miscarriage of justice.
An ex-parte decree can only be set aside if the defendant proves that summons was not duly served or that there was sufficient cause for their absence. The burden of proof lies with the defendant to ....
The court can invoke its inherent powers under Section 151 of the CPC to provide relief in cases of fraud and/or abuse of the process of the Court, but the burden of proof lies with the applicant.
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