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IN THE HIGH COURT OF PATNA
Mungeshwar Sahoo, J.
Uma Shankar Sah & Ors. - Petitioner
Versus
Sushila Devi & Anr. - Respondent
Civil Writ Jurisdiction Case No. 7590 of 2016
Decided On : 14-09-2016
Order 9 Rule 13 CPC - Setting aside decree ex parte against defendant - Order 8 Rule 10 CPC - [Order 9, Rule 13, Order 8, Rule 10] - The court discussed the provisions of Order 9, Rule 13 CPC and Order 8, Rule 10 CPC in the context of setting aside a decree passed ex parte against the defendant. It emphasized that Order 9, Rule 13 CPC is applicable only if the defendant satisfies the court that 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 also highlighted that the judgment and decree passed under Order 8, Rule 10 CPC is appealable under Section 96 of the Code of Civil Procedure. The judgment provided interpretations of these provisions and their applicability to the case, influencing the court's decision to set aside the lower appellate court's judgment and restore the trial court order.
Fact of the Case:
The plaintiffs filed a partition suit in 1975, and the defendants appeared in the suit in 1976 and 1997 but did not file a written statement until after being debarred. The trial court passed a judgment and decree under Order 8, Rule 10 CPC, which was not challenged by the defendants. Instead of filing an appeal, the defendants filed an application under Order 9, Rule 13 CPC to set aside the ex-parte judgment and decree.
Finding of the Court:
The court found that the lower appellate court had proceeded to decide the case in a manner not permitted by law and set aside the judgment passed by the lower appellate court, restoring the trial court order.
Issues: The main issue was the applicability of Order 9, Rule 13 CPC and Order 8, Rule 10 CPC to the case, and whether the defendants were entitled to set aside the ex-parte judgment and decree.
Ratio Decidendi: The court emphasized that Order 9, Rule 13 CPC is applicable only if the defendant satisfies the court that summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. It also highlighted that the judgment and decree passed under Order 8, Rule 10 CPC is appealable under Section 96 of the Code of Civil Procedure.
Final Decision: The writ application was allowed, and the judgment passed by the lower appellate court was set aside, restoring the trial court order.
Mungeshwar Sahoo, J.
Heard learned Senior Counsel Mr. Dhrub Narain for the petitioners and learned counsel Mr. Jai Prakash Verma for the respondents.
2. This writ application has been filed under Article 227 of the Constitution of India by the plaintiffs-petitioners for setting aside the order dated 27.02.2016 passed by learned 9th Additional District Judge, Muzaffarpur in Miscellaneous Appeal No. 25 of 2006 whereby the court below has allowed the appeal filed by the defendants-respondents under Order 43, Rule 1 (d) of the Code of Civil Procedure.
3. It appears that the plaintiffs-petitioners filed Title Suit No.51 of 1975 praying for partition of their ?rd share in the suit property. The defendants-respondents on receiving summons appeared in the suit in the year 1976. The suit was then abated under Section 4(b) (c) of Consolidation Act. It revived in 1996 and again notice was issued. The defendants-respondents appeared on 29.08.1997. In spite of several adjournments for filing written statement they did not file written statement. Therefore, they were debarred from filing the written statement. Subsequently they filed written statement on 08.07.2000, which was not accepted by the court below on 13.09.2000. The defendants-respondents did not challenge either of the order passed by the trial court. Thereafter the court below proceeded to decide the suit under Order 8, Rule 10 of the Code of Civil Procedure and the judgment and decree was passed on 27.03.2001. This judgment and decree was not challenged by the defendants-respondents by filing regular appeal under Section 96 of the Code of Civil Procedure. The defendants instead of filing appeal filed an application under Order 9, Rule 13 of the Code of Civil Procedure praying for setting aside the ex-parte judgment and decree, which was registered as Miscellaneous Case No.08 of 2001. The trial court after hearing the parties by order dated 11.09.2006 held that in the case of judgment and decree passed under Order 8, Rule 10 of the Code of Civil Procedure the application under Order 9, Rule 13 is not applicable. Against the said order of the trial court the defendants filed miscellaneous appeal being Miscellaneous Appeal No.25 of 2006. The lower appellate court by this impugned judgment allowed the miscellaneous appeal.
4. The learned Senior Counsel for the petitioners submitted that since the judgment and decree has been passed by the trial court under Order 8, Rule 10 CPC, the provision as contained in Order 9, Rule 13 is not applicable. The trial court also dismissed the application i.e. miscellaneous case under Order 9, Rule 13 CPC recording finding to that effect. The lower appellate court did not decide this question but on surmises and conjectures recorded finding that if no opportunity is given to the defendants to adduce the evidence in the case, it will be injustice to the defendants and, therefore, has set aside the trial court order and the judgment and decree of the court below has also been set aside. According to the learned Senior Counsel, the Court has no jurisdiction to set aside the judgment and decree in the manner which has been done by the lower appellate court without recording any finding regarding maintainability of the application under Order 9, Rule 13 CPC.
5. On the other hand, learned counsel Mr. Verma for the respondents submitted that the lower appellate court has rightly held that there was sufficient reason for not contesting the suit by the defendants which is covered under Order 9, Rule 13 CPC. Therefore, on the basis of evidences the court below recorded a clear finding that the defendants-respondents were residing outside the State of Bihar i.e. Assam and if no opportunity is granted to them to contest the suit, it will be injustice to them. In such circumstances, the order impugned cannot be interfered with in exercise of supervisory jurisdiction.
6. It is not disputed that the partition suit was filed by the plaintiffs-petitioners in the y
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