Case Note & Summary
This was a civil matter arising from a suit for specific performance of an agreement allegedly executed by the petitioner. The respondent filed the suit and obtained an ex-parte decree when the petitioner did not contest after alleged service of summons. The petitioner later sought to set aside the ex-parte decree under Order IX Rule 13 of Code of Civil Procedure, 1908. The respondent's suit was based on an agreement to sell. The petitioner was served notice but allegedly did not appear, leading to an ex-parte decree. The petitioner's application under Order IX Rule 13 asserted that she was not residing at Garhia Village, so the notice could not be deemed served and the endorsement of service was incorrect. The trial court recorded evidence of Laxuman Yadav, Mahendra Yadav, and the process server. The evidence indicated that on January 15, 1985, when summons were handed to the petitioner and she was acquainted with the facts, she refused to sign or put thumb impression. The process server had attempted personal service on April 2, 1984 at the village, and on April 9, 1984 when a registered card acknowledgement was sent, she refused to acknowledge it. There was also gazette publication. On appreciation of this evidence, the courts below concluded that the petitioner refused to accept notice. The High Court of Patna in Appeal from Original Order No.406/86 dated July 24, 1996 recorded that apart from the two modes, there was gazette publication; the appellant's contention that being an illiterate lady she could not learn about gazette publication was rejected. The High Court held it was a finding of fact and the petitioner was rightly set ex-parte. Two principal issues arose: whether service of summons was valid and the ex-parte decree should be set aside under Order IX Rule 13 CPC; and whether the Supreme Court in special leave petition could examine the merits of the suit when no appeal under Section 96 or Section 100 CPC was subject matter. The petitioner contended that she was not living at Garhia Village, the endorsement was incorrect, and as an illiterate lady she could not know about gazette publication. The respondent relied on the evidence of the process server and witnesses showing refusal of personal service and refusal to acknowledge the registered card. The Supreme Court noted that the question of service was gone into by courts below after recording evidence. The concurrent findings were based on appreciation of evidence and showed that the petitioner refused to accept notice. The High Court had rightly treated the issue as a finding of fact. The Supreme Court declined to interfere under Article 136 because findings of fact are not ordinarily disturbed in special leave petitions. Moreover, the Supreme Court could not examine merits because no appeal under Section 96 or Section 100 CPC was before it; the petitioner's counsel sought to contest merits directly, but that was impermissible. The Supreme Court dismissed the special leave petition, thereby upholding the High Court's order and the ex-parte decree. The petitioner's remedy to set aside the ex-parte decree was rejected, and the finding that she refused service was affirmed.
Headnote
A) Civil Procedure - Ex-parte Decree - Setting Aside Under Order IX Rule 13 Code of Civil Procedure, 1908 - Service of Summons Validity - The petitioner alleged non-residence in Garhia Village and improper endorsement, but courts below, after recording evidence of Laxuman Yadav, Mahendra Yadav and the process server, found that the petitioner refused personal service on January 15, 1985, refused to acknowledge the registered card on April 9, 1984, and there was gazette publication - High Court affirmed that petitioner refused to accept notice and was rightly set ex-parte - Held that finding of fact based on appreciation of evidence cannot be disturbed in special leave petition (Paras 1-2). B) Civil Procedure - Appeal and Special Leave Petition - Scope of Article 136 - Merits of the Case - Code of Civil Procedure, 1908, Sections 96 and 100 - The petitioner sought to contest the case on merits; however, the Supreme Court held that it cannot go into merits since the appeal was not subject matter in appeals filed either under Section 96 or Section 100 CPC - Held that special leave petition is dismissed (Paras 1-2).
Issue of Consideration
Whether service of summons on the petitioner was validly effected and the ex-parte decree should be set aside under Order IX Rule 13 CPC; whether the Supreme Court in a special leave petition can examine the merits of the underlying suit when no appeal under Section 96 or Section 100 CPC was before it
Final Decision
The special leave petition was dismissed. The Supreme Court upheld the High Court's finding that the petitioner refused to accept notice and was rightly set ex-parte, and declined to examine merits because no appeal under Section 96 or Section 100 CPC was subject matter.
Law Points
- Findings of fact regarding valid service and refusal of notice
- based on evidence
- are not interfered with under Article 136
- Supreme Court cannot examine merits when appeal under Section 96 or Section 100 CPC was not subject matter
- ex-parte decree upheld where petitioner refused personal service
- registered acknowledgment
- and gazette publication
