Case Note & Summary
The case involves two civil revision applications filed by the applicants (original defendants) against the respondents (original plaintiffs) challenging the ex-parte decree passed by the trial court. The dispute pertains to property matters arising from two suits: SCS No.1296 of 2012 and SCS No.1450 of 2012. The applicants, Mr. Ali Akbar Jafari and Ms. Vanessa D'souza, were defendants in these suits. The trial court struck off their defence for failure to file written statements within the prescribed period of 90 days under Order 8 Rule 1 of the Code of Civil Procedure, 1908 (CPC). Subsequently, the court passed an ex-parte decree against them. The applicants contended that the trial court erred in not considering their application for setting aside abatement of the suit against deceased defendants, which was pending at the time of the decree. They argued that the suit could not have been decreed without the necessary parties. The respondents opposed the revision applications, stating that the applicants had ample opportunity to file written statements but failed to do so. The High Court examined the procedural history and found that the trial court had not decided the application for setting aside abatement before passing the ex-parte decree. The court held that the trial court's action was premature and that the applicants had shown sufficient cause for the delay in filing the written statement. The High Court allowed the revision applications, set aside the ex-parte decree, and remanded the matter to the trial court for fresh consideration, directing the trial court to first decide the application for setting aside abatement and then proceed with the suit in accordance with law.
Headnote
A) Civil Procedure - Ex-parte Decree - Setting Aside Abatement - Order 22 Rule 9 CPC - The trial court passed an ex-parte decree without considering the pending application for setting aside abatement of the suit against deceased defendants. The High Court held that the court must first decide the application for setting aside abatement before proceeding further, as the suit could not have been decreed without the necessary parties. (Paras 10-12) B) Civil Procedure - Written Statement - Striking Off Defence - Order 8 Rule 1 CPC - The trial court struck off the defence of the defendants for failure to file written statement within 90 days. The High Court held that the power to strike off defence is discretionary and must be exercised judiciously, and in this case, the defendants had shown sufficient cause for the delay. (Paras 13-15) C) Civil Procedure - Ex-parte Decree - Order 9 Rule 13 CPC - The High Court set aside the ex-parte decree as the defendants were not given adequate opportunity to contest the suit and the trial court had not considered the application for setting aside abatement. The matter was remanded for fresh consideration. (Paras 16-18)
Issue of Consideration
Whether the trial court was justified in passing an ex-parte decree without considering the application for setting aside abatement and whether the defence was rightly struck off for non-filing of written statement within 90 days.
Final Decision
The High Court allowed both civil revision applications, set aside the ex-parte decree, and remanded the matter to the trial court for fresh consideration. The trial court was directed to first decide the application for setting aside abatement and then proceed with the suit in accordance with law.
Law Points
- Order 8 Rule 1 CPC
- Order 9 Rule 13 CPC
- Order 22 Rule 9 CPC
- Section 151 CPC
- Ex-parte decree
- Setting aside abatement
- Striking off defence
- Sufficient cause
