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2014 Supreme(J&K) 233
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mohammad Yaqoob Mir, J.
State Of J&K & Anr. -Appellant
Versus
Mukhtar-ul-Aziz & Anr. -Resopndent
C. Rev. No. 155-1999 C-W CIA No. 115-1999, C. Rev. No. 69-2007
Decided On : 09-06-2014
S.A. Naik.
The main legal point established in the judgment is that lenient view could be taken for condoning the delay, but there must be merit in the application seeking setting aside of an ex parte decree. The petitioners must satisfy the court regarding the summon being duly served or demonstrate that they were prevented by any sufficient cause from appearing.
Headnote:
Condonation of Delay - Civil Procedure - The court dismissed the application seeking condonation of delay and setting aside of an ex parte decree, stating that while lenient view could be taken for condoning the delay, there was no merit in setting aside the ex parte decree. The petitioners failed to satisfy the court that the summon was not duly served or that they were prevented by any sufficient cause from appearing. The court found that the petitioners' claim of non-service of the summon was negated by the interim orders recorded on the trial court file. The trial court's decision was in accordance with the law.
Fact of the Case:
The court dismissed the application seeking condonation of delay and setting aside of an ex parte decree, stating that while lenient view could be taken for condoning the delay, there was no merit in setting aside the ex parte decree.
Finding of the Court:
The court found that the petitioners failed to satisfy the court that the summon was not duly served or that they were prevented by any sufficient cause from appearing. The court also found that the petitioners' claim of non-service of the summon was negated by the interim orders recorded on the trial court file.
Issues: The issues involved the satisfaction of the court regarding the summon being duly served and whether the petitioners were prevented by any sufficient cause from appearing.
Ratio Decidendi: The court's decision was based on the failure of the petitioners to satisfy the court regarding the summon being duly served and their inability to demonstrate that they were prevented by any sufficient cause from appearing.
Final Decision: The revision petition was dismissed, and no order as to costs was given. The trial court record was to be sent back forthwith along with a copy of the order.
2. Order IX Rule 13 of the Code of Civil Procedure envisages following two alternate grounds for setting aside exparte decree:
(1) if the aggrieved party satisfies the court that the summon was not duly served, or
(2) the party was prevented by any sufficient cause from appearing when the case was called on for hearing.
The petitioners in the application seeking setting aside of the ex parte decree have projected only one ground i.e. summon was not duly served upon the petitioners. Perusal of the trial court record reveals that the suit has been instituted on 14.06.1993, on behalf of defendant No. 3(respondent No. 2 herein) Rashid Ahmad, Manager Personnel, had appeared on 28.06.1993 whereas on behalf of defendants 1 and 2(petitioners herein), summon issued was received back. Report of the process server has been recorded to the effect that the summon has been effected on them based on which they were proceeded in ex-parte. Later on defendant No. 3 was represented and then on 12.12.1994 on behalf of defendants 1 and 2(petitioners herein) Advocate had appeared who had filed application along with an affidavit for setting aside exparte proceedings. Then on 15.03.1995, no one appeared on behalf defendants 1 and 2, the application for setting aside exparte proceedings was dismissed in default.
3. On 08.08.1995, again Advocate has appeared on behalf of defendants 1 and 2 with an application for restoration of application seeking setting aside of the exparte proceedings. He has also remained present before the trial court on 19.09.1995. In short, interim orders recorded by the trial court would reveal that the defendant No. 3(respondent No. 2 herein) had also filed written statement whereas there has been appearance on behalf of petitioners as well. In the said backdrop, the ground projected that the summon was not duly served upon them pales into insignificance. Under such circumstance, the only ground available to the petitioners was to project that they were prevented by any sufficient cause from appearing, which has not been projected in the application at all.
4. It appears that the petitioners and respondent No. 2, figuring as defendants in the suit, have in a clandestine manner arrayed defendant No. 3 as respondent No. 2 herein so as to claim non-service of the summon but their entire stand is negated by the interim orders recorded on the trial court file.
5. Trial court noticing all the features has rightly opined that lenient view could be taken for condoning the delay but there is no merit in the application seeking setting aside of the exparte decree. The view taken by the trial court is absolutely in consonance with law.
6. The petitioners including respondent No. 2, in order to shield their act of indolence in defending the suit have tried to project a theory of non-service of summon but same is exposed by the records as they have been appearing before the trial court all along.
7. The trial court has passed the order impugned in accordance with law, same does not suffer from any irregularity nor is to cause any miscarriage of justice.
8. Revision petition being without merit is dismissed. No order as to costs.
9. Trial court record be sent back forthwith along with copy of this order.
CIA No. 115/199;
Appearance as above;
1. Pursuant to order dated 23rd August, 1999, passed by the Court of 4th Additional District Judge, Srinagar, application seeking Condonation of delay in preferring the application for setting aside of exparte decree has bee
