Proper service of notice is essential before passing a decree; without it, an ex-parte decree cannot stand.

Order

28/05/2025

1. Instant revision petition is preferred by petitioners plaintiff aggrieved from order dated 19.05.2022 in civil misc. case no. 84/2017 (67/2003) passed by learned Additional Civil Judge no.2, Beawar, District Ajmer whereby an application under Order IX Rule 13 read with Section 151 CPC filed by respondents defendant was allowed and ex-parte judgment and decree dated 24.04.2002 and ex-parte proceeding dated 08.10.2001 in civil suit no. 105/2001 set aside at a cost of ₹200/-.

2. Learned counsel for petitioners while relying upon grounds of revision petition submitted that a civil suit no. 105/2001 was filed by plaintiff before learned Civil Judge for eviction and recovery of rent but defendant Rabiya Rehmani (since deceased) remained absent despite sufficient service of notice and in absence of participation the trial court has passed an ex-parte decree on 24.04.2002. He further submitted that the notice was served in accordance with provision under Order V of CPC while taking all precautions as provided therein but the trial court on an application under Order IX Rule 13 CPC filed at belated stage has set aside the judgment and decree on the ground that the defendant was not served a proper notice before passing the decree. He further submitted that an application under Order IX Rule 13 CPC was filed in the year 2003 decided in 2022 and in the meanwhile, an appeal was also preferred by defendant but same was withdrawn. He further submitted that there was a deliberate delay on part of respondent defendant in participation in the proceedings. He also submitted that despite opportunity to lead evidence the respondent defendant have failed to lead evidence in support of applicationunder Order IX Rule 13 of CPC and he has failed to prove that the notice was not served upon her. At last, he submitted that the plaintiff is waiting for last 23 years with eviction decree but same was delayed by one or the other reason.

3. Aforesaid contentions were opposed by learned counsel for respondent defendant and he submitted that the civil suit is filed in the year 2002 and the decree was obtained without service of notice upon respondent defendant (since deceased). He further submitted that the respondent has an option either to challenge the ex-parte decree by filing an appeal or apply for setting aside of ex-parte decree under Order IX of CPC. He further submitted that the appeal was not decided on merits and same was dismissed as withdrawn and same is not a bar to pursue remedy under Order IX Rule 13 CPC. He also submitted that when the facts are available on record and proved from court record, then, the respondent is not required to lead any evidence. He submitted that due to any technical reason the respondents cannot be thrown out of the Court without ventillating their grievances. He further referred judgment in case of Kewal Ram Vs. Smt. Lubhai and Ors. (1987) 2 SCC 344 and Reena Sadh Vs. Anjana Enterprises AIR 2008 SC 2054 and submitted that non-service of notice is sufficient to set aside an ex-parte decree passed against the respondent defendant.

4. Heard learned counsel for parties and perused the judgment as referred by learned counsel for respondent(s).

5. The facts giving rise to instant revision petition are that a civil suit no. 105/2001 was filed by Vimal Chand Lodha, Manager of HUF Mishri Lal Vimal Chand Lodha against Rabiya Rehmani for eviction of suit property along with recovery of rent. Learned Civil Judge (Junior Division) has issued a notice to defendant and non- appearance after serv