Case Note & Summary
The appeal arose from an order of the City Civil Court dismissing the appellant's Notice of Motion to set aside an ex-parte decree in a partition suit. The suit was filed by the original plaintiff (deceased respondent) for partition of a plot of land. The defendants, including the appellant, filed written statements but later did not participate in the trial, leading to an ex-parte decree on 15 June 2008. The appellant, who was defendant No.1(d), claimed that their advocate failed to inform them of the proceedings and that they only learned of the decree upon receiving notice of execution in 2019. They filed the application under Order IX Rule 13 CPC in 2021. The trial court dismissed the application, finding no sufficient cause for the delay. On appeal, the High Court examined whether the appellant had shown sufficient cause for non-appearance. The court noted that the appellant was aware of the suit and had engaged an advocate, but did not follow up diligently. The court held that mere allegations against the advocate, without evidence of steps taken against the advocate, do not constitute sufficient cause. The court also considered the delay of over 11 years in filing the application and found the explanation unsatisfactory. The appeal was dismissed, affirming the trial court's order.
Headnote
A) Civil Procedure - Ex-parte Decree - Setting Aside - Order IX Rule 13 CPC - Sufficient Cause - The appellant sought to set aside an ex-parte decree in a partition suit, alleging that their advocate failed to appear and inform them. The court held that the appellant failed to prove sufficient cause as they were aware of the proceedings but did not take diligent steps. The appeal was dismissed. (Paras 1-19) B) Civil Procedure - Condonation of Delay - Negligence of Counsel - The court considered whether the negligence of the advocate constituted sufficient cause. It held that mere allegations against the advocate without corroboration or steps taken against the advocate do not establish sufficient cause. (Paras 10-15)
Issue of Consideration
Whether the appellant made out a sufficient cause for setting aside the ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure, 1908.
Final Decision
The appeal is dismissed. The order of the City Civil Court dated 9 November 2022 dismissing Notice of Motion No.931 of 2021 is confirmed.
Law Points
- Order IX Rule 13 CPC
- Sufficient cause
- Condonation of delay
- Negligence of counsel
- Ex-parte decree
