Case Note & Summary
The petitioners, original defendants in a suit for specific performance of contract, challenged the order of the Civil Judge, Junior Division, Washi, District Osmanabad, dated 30.06.2017, which rejected their application (Exh.15) to set aside the ex-parte decree passed against them. The respondent No.1, original plaintiff, had filed Regular Civil Suit No. 7/2015 for specific performance. The defendants were served but did not appear, leading to an ex-parte decree on 30.06.2016. The defendants filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) to set aside the decree, claiming that they had engaged a counsel who failed to appear due to illness, and that they had a valid defence. The trial court rejected the application on the ground that the defendants had not filed a written statement and that the application was filed after a delay. The High Court, in the writ petition, examined the provisions of Order IX Rule 13 CPC and held that the trial court had erred in rejecting the application without considering the explanation for non-appearance and the merits of the defence. The court observed that the defendants had shown sufficient cause for their non-appearance and that the application should have been allowed. The High Court set aside the impugned order and directed the trial court to restore the suit to its original number and proceed in accordance with law, subject to payment of costs of Rs. 1,000 to the plaintiff.
Headnote
A) Civil Procedure - Ex-Parte Decree - Setting Aside - Order IX Rule 13 of the Code of Civil Procedure, 1908 - The court must consider whether the defendant had sufficient cause for non-appearance and whether the defendant has a prima facie defence on merits. The trial court rejected the application solely on the ground that the defendants had not filed a written statement, without examining the explanation for non-appearance. Held that the approach was erroneous and the application deserved consideration on merits (Paras 1-10).
Issue of Consideration
Whether the trial court was justified in rejecting the application to set aside the ex-parte decree without considering the explanation of the defendants for their non-appearance and the merits of the case.
Final Decision
The High Court allowed the writ petition, set aside the order dated 30.06.2017 passed by the Civil Judge, Junior Division, Washi, District Osmanabad, and directed the trial court to restore Regular Civil Suit No. 7/2015 to its original number and proceed in accordance with law, subject to payment of costs of Rs. 1,000 to the plaintiff.
Law Points
- Order IX Rule 13 CPC
- Sufficient Cause
- Ex-Parte Decree
- Setting Aside Decree
- Liberal Construction
