Point in Issue :
Whether in the facts of the case trial Court was justified in passing ex parte decree?

Mohit S. Shah, J.—This petition under Articles 226 and 227 of the Constitution is directed against the order dated 10.1.2006 passed by the learned Additional Senior Civil Judge, Ahmedabad (Rural) rejecting Misc. Civil Application No. 56 of 2005 for setting aide the ex-parte decree passed by the same Court in Summary Special Civil Suit No. 65 of 2004.

2. The respondent herein [hereinafter referred to as “the plaintiff”] filed Summary Special Civil Suit No. 65 of 2004 against the present petitioners [hereinafter referred to as “the defendants”] for recovery of Rs. 3,82,586-29 ps., which according to the plaintiff, was the amount outstanding towards construction of the house of the defendants. The total bills submitted by the plaintiff were for Rs. 8,97,586-29 ps., against which the defendants had paid Rs. 5,20,000/- and, therefore, the plaintiff filed the suit for recovering the balance amount of Rs. 3,77,586-29 ps. The plaintiff also claimed a further sum of Rs. 5,000/- as notice charges.

3. Since the suit was filed as a summary suit, the defendants were required to enter their appearance within ten days from the date of service of summons. On 23.12.2004, the defendants entered their appearance indicating in the note of appearance that the defendants were served on 14.12.2004 and, therefore, the appearance was entered within ten days from the date of service of summons. The plaintiff, however, filed application Exh,. 9 on 0.03.2005 contending that the summons was served upon the defendants on 7.12.2004, but the defendants had not filed their appearance within ten days from the date of service of summons, but they had filed their appearance on 27.12.2004. Hence, the appearance of the defendants could not be taken cognizance of and the defendants be treated as absent and ex-prate decree be passed against the defendants. The application appears to be been entertained and the learned trial Judge passed the following order:—

“Fix for hearing

Sd/-.

5.4.05"

4. It is the case of the petitioners herein (original defendants) that the said application was not served upon the defendants and the learned Advocate for the original plaintiff does not dispute the said assertion. The learned trial Court by order dated 25.04.2005 allowed application Exh. 9 and held that the summons was served on the defendants on 7.12.2004 and not on 14.12.2004 as stated in the note of appearance filed by the defendants. In the circumstances, the defendants were required to enter their appearance by 17.12.2004. There was thus delay of 6 days in the appearance having been filed by the defendants, for which an application for condonation of delay ought to have been filed, but no such application was made, but the summons was stated to have been served on 14.12.2004.

5. After the aforesaid order dated 25.04.2005, the plaintiff filed affidavit dated 21.9.2005 praying for passing an ex-parte decree against the defendants as the defendants had not appeared before the Court within the stipulated time limit of ten days from the date of service of summons in the suit. The plaintiff, therefore, prayed for a decree for a sum of Rs. 3,82,586/-. There is no dispute about the fact that the said affidavit dated 21.09.2005 (Exh. 10) was also not served upon the defendants, but the Court simply made an endorsement “recorded” on the said affidavit.

6. The learned trial Court thereafter passed judgment and decree dated 30.9.2005 on the basis of the documentary evidence produced by the plaintiff and directed the defendants to pay the plaintiff Rs. 3,82,586-29 ps. with interest @ 6% from the date of the suit till the date of payment. Thereafter the present petitioners i.e. original defendants filed application being Misc. Civil Application No. 56 of 2005 on 23.12.2005 for setting aside the decree on the ground that the defendants were not served with application Exh. 9 or affidavit Exh. 10, that the defendants were prosecuting Case No. 513 of 2004 before the Consumers Disputes Red