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IN THE HIGH COURT OF GAUHATI
Biplab Kumar Sharma, J.
Promode Basumatary – Appellants
Vs.
Civil Judge (Senior Division) No. 1 & another – Respondent
W.P. (C) No. 1303 of 2005
Decided On: 26.05.2005
Order 9 Rule 13 Code of Civil Procedure - Setting aside ex-parte judgment and decree - Section 151 Code of Civil Procedure - Appearance in miscellaneous proceeding - Fresh issuance of summons/notice - Presumption of service of summons/notice - Inherent power of the Court - Article 226 and 227 of the Constitution of India
Fact of the Case:
The Defendant/Petitioner challenged the order rejecting the prayer to vacate the order for ex-parte hearing, arguing that the trial Court did not take into account the provisions of Order-V, Rule 1, 2 and 5 Code of Civil Procedure, and passed the impugned order in disrespect of the provisions of Order IX Rule Code of Civil Procedure. The Defendant/Petitioner also claimed that no summons/notice had been served on him and that the trial Court should have allowed the prayer to contest the claim of the Plaintiff/Respondent.
Finding of the Court:
The Court found that the Defendant/Petitioner had knowledge of the suit due to his appearance in the miscellaneous proceeding and presumed his knowledge of the dates fixed in the suit. The Court held that the application filed by the Defendant/Petitioner under Section 151 Code of Civil Procedure was not maintainable and rejected the prayer to vacate the order for ex-parte hearing.
Issues: The issues revolved around the knowledge of the Defendant/Petitioner regarding the suit, the necessity of fresh issuance of summons/notice, and the maintainability of the application filed under Section 151 Code of Civil Procedure.
Ratio Decidendi: The Court held that the Defendant/Petitioner's appearance in the miscellaneous proceeding indicated his knowledge of the suit, and the application filed under Section 151 Code of Civil Procedure was not maintainable when there were specific provisions in the Code of Civil Procedure for setting aside the order for ex-parte hearing.
Final Decision: The writ petition was allowed, and the Defendant/Petitioner was directed to appear before the trial Court, whereupon he would be furnished with the copy of the plaint, and the suit would proceed in accordance with the provisions of the Code of Civil Procedure.
Biplab Kumar Sharma, J.
1. The basic facts material for the purpose of disposal of this application under Article 226/227 of the Constitution of India are as follows:
2. The Respondent No. 2 herein as the Plaintiff instituted Money Suit No. 291 of 2000 against the present Petitioner as the Defendant in the Court of Civil Judge, Senior Division, Guwahati. An ex-parte judgment and decree was passed on 03.12.2001, which, however, was set aside upon making an application by the Defendant/Petitioner under Order 9, Rule 13 Code of Civil Procedure, which was registered and numbered as Misc. Case No. 57 of 2003. The order was passed on 24.08.2004 awarding a cost of Rs. 500/-
3. With the order passed on 24.08.04 in Misc. Case No. 57 of 2003 setting aside the ex-parte judgment and decree, the trial Court also passed an order in the money suit fixing the next date as 15.09.04 for appearance of the parties. Orders passed on 24.08.04 and thereafter have been indicated in Annexure-B to this petition, which are reproduced below:
24.08.2004 M.S. No. 291 of 2000. In view of the order passed in Misc. Case No. 57 of 2003 the judgment and decree is set aside. The parties will appear on next date. Fix on 15.09.2004 for appearance. Sd/-Illegible Civil Judge (Senior. Division) No. 1 Kamrup, Guwahati
15.09.2004 Ld. Advocate for the plaintiff is present. Defendant is absent. Fix on 04.10.2004 for appearance. Sd/-Illegible Civil Judge (Senior Division) No. 1 Kamrup, Guwahati
04.10.2004 Plaintiff is present. Defendant is absent. Defendant remained absent even after the suit is restored. Hence the suit will proceed ex-parte. Fix on 02.12.2004 for ex-parte hearing. Sd/-Illegible Civil Judge (Senior Division) No. 1 Kamrup, Guwahati
02.12.2004 Both parties are present. Defendant vide Petition No. 3123 of 04 has prayed to vacate the orders for ex-parte hearing. Fixing on 13.12.2004 for objection hearing. Sd/-Illegible Civil Judge (Senior Division) No. 1 Kamrup, Guwahati
13.12.2004 Both parties are present. Defendant has deposited the amount of cost of Rs. 500/-. Amount be paid to plaintiff. Heard both sides on petition. For vacating the order for ex-parte hearing. Fix on 23.12.2004 for orders. Sd/-Illegible Civil Judge (Senior Division) No. 1 Kamrup, Guwahati
23.12.2004 P.O. is on leave, both parties are present Fix on 18.01.2005 for N/O. Sd/- Illegible Civil Judge (Senior Division) No. 1 Kamrup, Guwahati
4. On 18.01.2005 the learned Civil Judge passed the impugned order rejecting the prayer of the Petitioner to vacate the order for ex-parte hearing.
5. It is the legality and validity of the said order which is under challenge in this proceeding. Mr. D. Baruah, learned Counsel for the Petitioner has basically made the following submissions.
(i) The trial Court did not take into account the provisions of Order-V, Rule 1, 2 and 5 Code of Civil Procedure.
(ii) The trial Court passed the impugned order in utter disrespect of the provisions of Order IX Rule Code of Civil Procedure.
(iii) No summons/notice having been served on the Petitioner, the trial Court could not have assumed jurisdiction under Order IX Rule 6 Code of Civil Procedure.
(iv) The Petitioner having appeared only in the miscellaneous proceeding relating to setting aside of the ex-parte judgment and decree, although he was aware of the order dated 24.08.04, passed therein, he had no knowledge regarding the dates fixed in the suit inasmuch as no summons/notice was served on him in respect of the suit.
(v) The trial Court, at least for ends of justice ought to have allowed the prayer of the Petitioner giving him a chance to contest the claim of the Plaintiff/Respondent.
6. Mr. Baruah has placed reliance on the following decisions:
(1) Vijay Kumar Madan v. R.N. Gupta Technical Education Society, (2002) 5 SCC 30
(2) Sushil Kumar Sabharwal v. Gurpreet Singh, (2002) 5 SCC 377
(3) Deoraj v. State of Maharashtra, (2002) 4 SCC 697
(4) Shiromani Gurdwara Probandhak Committee v. Lt. Sardar Raghubir Singh and other, AIR 1
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