The main legal point established in the judgment is the need for a liberal and sensitive approach by the courts in setting aside ex parte decrees, considering the circumstances of the defendant and the principles of substantial justice.

JUDGMENT :

1. This is an appeal under Order 43 Rule 1 (d) of the Code of Civil Procedure against refusal of the prayer of the appellant to set aside ex parte decree in exercise of powers under Rule 13 of Order IX CPC by order dated 14.10.2019 passed in Civil Misc. Application No. 56/2013 (121/2014).

2. A suit for partition of house standing on Plot No. 4037 was going on between the parties. On 26.2.2009, an ex parte preliminary decree was passed in the suit and on 18.1.2012, final decree was also drawn ex parte. The appellant who was defendant in the suit had already appeared in the suit proceedings, however according to appellant, he was prevented by sufficient cause from not appearing when the suit was called on for hearing.

3. The impugned order would reveal that the learned trial Judge mainly relined on the material to support proper service of notice on the defendant appellant and knowledge of the defendant appellant regarding proceedings of the partition suit. Rule 13 of Order IX CPC reads as follows:

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 time to appear and answer the plaintiff’s claim.

(Explanation.-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.)”

4. Thus, ex parte decree passed against the defendant appellant might have been interfered with by the court concerned not only for the reason that the court was satisfied that the summons was not duly served rather even on the ground that the appellant was prevented by any sufficient cause from appearing when the suit was called on for hearing.

5. Mr. Gaurav Sharma Saraswat, learned counsel for the appellant contends that son of the appellant was suffering from 60% of muscular dystrophy which would be evident from the certificate dated 4.10.2004 issued by the Government of Rajasthan and produced before the court below as Exhibit-1. Taranum Bano, one of the plaintiffs in the suit has admitted in her cross-examination in the proceedings under O.IX R.13 CPC that when the suit was filed, son of the appellant was a disabled person from his lower limbs due to injury caused by fall from the roof. The parents of the disabled person including his grand-mother were engaged in the treatment of disabled person. It is not denied on behalf of the respondents that the son of the appellant died on 6.2.2013 thereafter according to the appellant, the appellant was in depression and only in June, 2013 he came to know that ex parte judgment and decree was passed in the suit. Soon thereafter the application under O.IX R.13 CPC was filed.

6. The cause disclosed by the appellant has not been denied by the respondents. However, Mr. Manoj Kumar Bhardwaj, learned counsel for the respondents has referred to the material on record especially, the report of the Advocate-Commissioner at the time of preparation of final decree sta