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2004 Supreme(All) 725
2004 (4) AWC 3508 (LB)
(ALLAHABAD HIGH COURT—LUCKNOW BENCH)
Devi Prasad Singh, J.
Writ Petition No. 1020 (M/S) of 1984
Decided on April 13, 2004
Ram Sagar and others
Versus
District Judge, Gonda and others
Counsel for the Petitioners: H. S. Sahai.
Counsel for the Opposite Parties : S. P. Tripathi, Alok Kumar Sinha, Ratan Kant, M. G. Mishra, Brijesh Kumar Sharma, Rakesh Kumar and P. L. Mishra, C.S.C.
The main legal point established in the judgment is that irregularity in service does not automatically warrant setting aside an ex parte decree, and 'sufficient cause' for non-appearance of the defendant must be construed liberally, with the burden on the plaintiff to ensure effective service on the defendant.
Headnote:
Order IX Rule 13 - Setting aside, decree ex parte decree against defendant - [Order IX Rule 13 of C.P.C.] - The court discussed the interpretation of Order IX Rule 13 of C.P.C. and emphasized that irregularity in service does not automatically warrant setting aside an ex parte decree. The court highlighted the importance of the defendant's knowledge of the date of hearing and the burden on the plaintiff to ensure effective service on the defendant. The judgment also referenced relevant case law to support its interpretation of 'sufficient cause' for non-appearance of the defendant.
Fact of the Case:
The plaintiff entered into an agreement for the sale of land, which was later purchased by the defendants. The plaintiff filed a suit for specific performance of the contract, resulting in an ex parte decree. The defendants sought to set aside the decree, claiming irregularity in service of summons.
Finding of the Court:
The court found that the trial court's order setting aside the ex parte decree was based on sound legal principles, emphasizing the importance of the defendant's knowledge of the date of hearing and the plaintiff's burden to ensure effective service. The revisional court's interference with the trial court's judgment was deemed undesirable.
Issues: The key issues revolved around the interpretation of Order IX Rule 13 of C.P.C., the sufficiency of the defendant's knowledge of the date of hearing, and the burden on the plaintiff to ensure effective service on the defendant.
Ratio Decidendi: The court emphasized that irregularity in service does not automatically warrant setting aside an ex parte decree, and 'sufficient cause' for non-appearance of the defendant must be construed liberally. The burden lies on the plaintiff to show that the defendant had knowledge of the date fixed for hearing.
Final Decision: The court issued a writ of certiorari, quashing the impugned order and directing the trial court to proceed and decide the suit expeditiously, emphasizing the importance of fixing short dates for the proceedings.
Devi Prasad Singh, J.—Heard Sri D. C. Jain, holding brief of Sri H. S. Sahai, learned counsel for the petitioners and Sri P. L. Mishra for opposite party No. 2. None present for opposite party No. 3.
2. According to the learned counsel for the parties plaintiff/opposite party No. 2 entered into an agreement with one Ram Krishna Giri on 15.12.1979 for sale of certain agricultural land. However, the land was purchased by the defendant/petitioners from Ram Krishna Giri on 6.10.1981. Accordingly a suit for specific performance of contract was filed by the plaintiff/opposite party No. 2. The suit was decreed without effective service of notice on defendant, on 27.7.1982. The trial court while decreeing the suit directed for execution of sale deed in favour plaintiff by the decree dated 27.7.1982. Defendant/petitioners filed application under Order IX Rule 13 of C.P.C. in September, 1982, for setting aside the ex parte decree and for decision on merit. The trial court had allowed the application by the judgment and order dated 27.5.1983 on payment of cost to the tune of Rs. 25. The finding of the trial court is that a notice was affixed over the house of defendant/petitioners. At the time when the notice was affixed the defendant/petitioners were not available in the house and they were out of station. The report of process server states that the petitioners were out of station.
3. Feeling aggrieved by the order dated 27.5.1983, passed by the trial court plaintiff/opposite party No. 2 had filed a revision under Section 115 of C.P.C. The revisional court after hearing the parties, allowed the revision by the impugned order dated 12.1.1985 and set aside the trial court’s order on the ground that in view of the proviso of Order IX Rule 13 of C.P.C. mere irregularity is not sufficient to set aside the ex parte decree. It has been further held by the revisional court that in the mutation proceeding the statement of plaintiff Ram Raj was recorded on 17.3.1982 and in his statement it was stated by the plaintiff that he had already filed a civil suit for specific performance of contract. The finding of the revisional court is that there was only court of civil Judge in District Gonda and accordingly once the statement was made by the plaintiff Ram Raj in the mutation proceeding, it was incumbent on defendant to search out the case and appear in suit to avoid ex parte decree.
4. Order IX Rule 13 of C.P.C. provides that the ex parte decree may not be set aside merely on the ground that there has been irregularity in service of summons. The revisional court was satisfied that the defendant had notice of the date of hearing and was having sufficient time to answer plaintiff’s claim. For convenience Order IX Rule 13 of C.P.C. is reproduced hereunder :
“13. Setting aside, decree ex parte decree 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
