Case Note & Summary
The petitioner, Jose Sarat Paes, challenged the judgment and order dated 23/3/2010 passed by the Adhoc Additional District Judge-2, FTC II, Margao in Miscellaneous Civil Appeal no.79 of 2010 and the judgment and order dated 29/6/1999 passed by the Additional Civil Judge Junior Division in Civil Miscellaneous Application no.85/2000/II. The respondent, Mangaldas Pundalik Naik, had filed Special Civil Suit No. 82/1997/II against the petitioner seeking recovery of Rs.2.00 lakhs with interest. The trial court passed an ex-parte decree on 29/6/1999. On 29/1/2000, the petitioner through his attorney Maria Ivona Gama filed an application under Order IX Rule 13 CPC to set aside the ex-parte decree, primarily on the ground that the petitioner was in Kuwait at the relevant time and was not served in accordance with law. The trial court dismissed the application on 9/10/2009, holding that summons were duly served and the defendant had not proved sufficient cause for non-appearance. The appellate court affirmed this decision. The High Court, exercising jurisdiction under Article 227 of the Constitution of India, found no perversity or error in the concurrent findings and dismissed the writ petition.
Headnote
A) Civil Procedure - Setting Aside Ex-Parte Decree - Order IX Rule 13 CPC - Sufficient Cause - The petitioner sought to set aside an ex-parte decree on the ground that he was in Kuwait and not served with summons. The trial court dismissed the application holding that summons were duly served. The High Court upheld the dismissal, finding no error in the concurrent findings that the defendant failed to prove sufficient cause for non-appearance. (Paras 3-6)
Issue of Consideration
Whether the petitioner/defendant had sufficient cause for non-appearance to set aside the ex-parte decree under Order IX Rule 13 CPC.
Final Decision
The High Court dismissed the writ petition, upholding the concurrent findings of the courts below that the petitioner failed to prove sufficient cause for non-appearance.
Law Points
- Order IX Rule 13 CPC
- Sufficient cause for non-appearance
- Service of summons
- Substituted service
- Article 227 of Constitution of India
Case Details
2010 LawText (BOM) (09) 107
WRIT PETITION NO.334 OF 2010
Mr. A.F. Diniz for the Petitioner, Mr. S.S. Kakodkar for the Respondent
Shri Mangaldas Pundalik Naik
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Nature of Litigation
Writ petition under Article 227 of Constitution of India challenging dismissal of application to set aside ex-parte decree.
Remedy Sought
Petitioner sought to set aside ex-parte decree passed in Special Civil Suit No. 82/1997/II.
Filing Reason
Petitioner claimed he was in Kuwait and not served with summons, thus sufficient cause for non-appearance.
Previous Decisions
Trial court dismissed application under Order IX Rule 13 CPC on 9/10/2009; appellate court affirmed on 23/3/2010.
Issues
Whether the petitioner had sufficient cause for non-appearance to set aside the ex-parte decree under Order IX Rule 13 CPC.
Submissions/Arguments
Petitioner argued that he was in Kuwait and not served with summons.
Respondent argued that summons were duly served through substituted service.
Ratio Decidendi
The petitioner failed to prove sufficient cause for non-appearance as required under Order IX Rule 13 CPC, and the concurrent findings of the courts below were not perverse or erroneous.
Judgment Excerpts
By this petition under Article 227 of the Constitution of India the petitioner challenges the judgment and order dated 23/3/2010 passed by the Adhoc Additional District Judge-2, FTC II, Margao in Miscellaneous Civil Appeal no.79 of 2010 and judgment and order dated 29/6/1999 dated passed by the Additional Civil Judge Junior Division in Civil Miscellaneous Application no.85/2000/II whereby the application filed by the petitioner under Order IX, Rule 13 of Code of Civil Procedure has been dismissed.
Procedural History
Respondent filed Special Civil Suit No. 82/1997/II for recovery of Rs.2 lakhs. Ex-parte decree passed on 29/6/1999. Petitioner filed application under Order IX Rule 13 CPC on 29/1/2000. Trial court dismissed application on 9/10/2009. Appeal dismissed on 23/3/2010. Petitioner filed writ petition under Article 227.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order IX, Rule 13
- Constitution of India: Article 227
