Case Note & Summary
The appeal arises from an order dated 15 November 2021 passed by the City Civil Court, Bombay, rejecting Notice of Motion No.3946 of 2019 filed by the Appellant, Gajanan Chintaman Gujar, who was defendant No.1 in the suit. The Appellant sought to set aside an ex parte decree dated 16 November 2016 passed against him in favour of the Respondents (Plaintiffs). The trial court rejected the motion on the ground that the ex parte decree was passed after recording evidence and therefore could not be set aside under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC). The Appellant contended that he was not served with the suit summons and had no knowledge of the proceedings until execution was levied. The High Court observed that the trial court had failed to exercise jurisdiction by not considering whether the Appellant had sufficient cause for his non-appearance. The court held that Order IX Rule 13 CPC applies to all ex parte decrees, including those passed after evidence, if the defendant was absent. The impugned order was set aside, and the matter was remanded to the trial court for fresh consideration of the application on its merits, after affording an opportunity of hearing to both parties. The appeal was allowed with no order as to costs.
Headnote
A) Civil Procedure - Ex Parte Decree - Setting Aside - Order IX Rule 13 CPC - Sufficient Cause - The Appellant, defendant in the suit, sought to set aside an ex parte decree passed on 16 November 2016. The trial court rejected the application without considering the merits, holding that the application was not maintainable as the decree was passed on merits. The High Court held that the trial court failed to exercise jurisdiction by not examining whether the Appellant had sufficient cause for non-appearance. The matter was remanded for fresh consideration on merits. (Paras 1-10) B) Civil Procedure - Ex Parte Decree - Setting Aside - Order IX Rule 13 CPC - Maintainability - The trial court erroneously held that an ex parte decree passed after evidence cannot be set aside under Order IX Rule 13. The High Court clarified that Order IX Rule 13 applies to all ex parte decrees, including those passed after recording evidence, if the defendant was not present. The court must consider whether the defendant had sufficient cause for absence. (Paras 5-8) C) Civil Procedure - Ex Parte Decree - Setting Aside - Order IX Rule 13 CPC - Failure to Exercise Jurisdiction - The trial court's rejection of the application without considering the merits amounted to a failure to exercise jurisdiction. The High Court set aside the order and directed the trial court to decide the application afresh on its own merits, after hearing both parties. (Paras 9-10)
Issue of Consideration
Whether the City Civil Court erred in rejecting the Appellant's application to set aside the ex parte decree without considering the merits of the application, thereby failing to exercise jurisdiction under Order IX Rule 13 of the Code of Civil Procedure, 1908.
Final Decision
Appeal allowed. Impugned order dated 15 November 2021 set aside. Notice of Motion No.3946 of 2019 restored to the file of the City Civil Court for fresh consideration on its own merits, after affording opportunity of hearing to both parties. No order as to costs.
Law Points
- Order IX Rule 13 CPC
- Ex parte decree
- Sufficient cause
- Setting aside ex parte decree
- Failure to exercise jurisdiction
- Opportunity to defend
