In an application to set aside an ex parte decree under Order 9, Rule 13 of the CPC, the onus of proving non-service of summons lies on the defendant, and the defendant must also show a sufficient cause for not appearing when the suit was called on for hearing.

1. In a suit instituted in 1970 protracting for about nine years with both the plaintiffs and the court hopefully but vainly waiting for the defendants to appear and contest the suit, an ex parte decree was ultimately passed on 13-1-1979. Appellant No. 1 joined by his three brothers attempted to get the decree set aside by an application under Order 9, Rule 13, Civil Procedure Code (in short the Code). Having failed, he along with the two non-applicants has filed this miscellaneous appeal.

2. The suit was instituted by one Deoki Singh for self and as guradian of his minor daughter for partition against his Sita Ram Singh, defendant No. 1 in the suit, on the plea that Sita had fallen in bad company, become wayward and was squandering away property. The plaintiffs impleaded Ful Kuutari Devi, Deokis wife, as proforma defendant 2nd party and the transferees as proforma defendants 3rd party. Some other transferees from Sita Ram,, including the applicants/ appellants were added as proforma defendants later, some of them were transferees prior to the institution of the suit while others transferees pendent lite. On the death of Deoki Singh Ful Kumari Devi was transposed as plaintiff 1st party.

3. Sita Ram Singh filed written statement contesting the plaintiffs claim but did not persue the context. The transferees did not appear in the suit at all. In the circumstances, decree was passed ex parte on 13-1-1979.

4. On 30-1-1979 appellant No. 1 and his three brothers filed application for setting aside ex parte decree, registered as Miscellaneous Case No. 6 of 1979, stating that summons had not been duly served upon them. They also stated that they learnt about the suit for the first time on 24-1-1979 and after getting the records etc. inspected and varified the application was being filed. The plaintiffs objected to the prayer stating that the summons had been duly served upon the applicants and that the suit had been decreed after a long wait during which the contest in some interlocutory matters had been even taken to this court. In the proceeding the parties examined witnesses and brought certain documents on record. The court below by its impugned order disbelieved the applicants case on various grounds as stated in the order and rejected the prayer.

5. Mr. Indu Shekhar Prasad Sinha, learned counsel for the appellants submitted that where an ex parte decree is sought to be set aside under Order 9, Rule 13 of the Code on the ground of non-service of summons, source of knowledge of the decree or lack of cogent evidence on the point is not very material. The court has only to see whether there has been due service of summons or not and onus in such cases lids on the plaintiff. It was, accordingly, submitted that the court below has erred in law in drawing adverse inference from the fact that the applicants had failed to substantiate their case of acquisition of knowledge in the manner alleged. Order 9, Rule 13 reads as follows:-

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"13. Setting aside decree ex parte against defendant. In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient