Case Note & Summary
The petitioner, Vijay Mohan Jagtap, filed a writ petition challenging two orders passed by the trial court in Regular Civil Suit No. 368/2007. The first order dated 20.08.2009 rejected his application under Order 9 Rule 13 CPC to set aside an ex-parte decree. The second order dated 17.07.2010 rejected his application under Order 9 Rule 7 CPC. The suit was filed by the respondent no.1, Sindhubai Mohanrao Jagtap, for partition and separate possession of agricultural lands. The petitioner was the original defendant no.1 and is the son of the respondent no.1. The petitioner contended that he was not served with summons in the suit and that the ex-parte decree was passed without proper service. The trial court rejected his application on the ground that the petitioner had knowledge of the suit and that the service was sufficient. The High Court, after hearing the parties, found that the trial court had not properly considered the facts. The High Court noted that the petitioner was not a party to an earlier suit filed in 1998 and that the service of summons in the present suit was not proper. The High Court set aside the ex-parte decree and restored the suit to its original file, directing the trial court to decide the suit afresh after giving an opportunity to the petitioner to file his written statement.
Headnote
A) Civil Procedure - Setting Aside Ex-Parte Decree - Order 9 Rule 13 CPC - Service of Summons - The petitioner, defendant in a partition suit, sought to set aside an ex-parte decree on the ground that he was not served with summons. The trial court rejected the application. The High Court held that the trial court failed to consider that the petitioner was not a party to the earlier suit and that the service of summons was not proper. The ex-parte decree was set aside and the suit was restored. (Paras 1-10)
Issue of Consideration
Whether the trial court erred in rejecting the petitioner's application under Order 9 Rule 13 CPC to set aside the ex-parte decree on the ground that the petitioner was not properly served with summons.
Final Decision
The writ petition is allowed. The impugned orders dated 20.08.2009 and 17.07.2010 are quashed and set aside. The ex-parte decree is set aside. Regular Civil Suit No. 368/2007 is restored to its original file. The trial court is directed to decide the suit afresh after giving an opportunity to the petitioner to file his written statement and after hearing all parties. Rule made absolute accordingly.
Law Points
- Order 9 Rule 13 CPC
- Service of Summons
- Ex-parte decree
- Sufficient cause
- Setting aside ex-parte decree
Case Details
2011 LawText (BOM) (09) 19
WRIT PETITION NO.8072 OF 2010
Mr.Sandeep S. Deshmukh for petitioner, Mrs.Charuta S. Deshmukh for respondents no.1 & 2
Sau.Sindhubai Mohanrao Jagtap, Suhas s/o Mohan Jagtap, Sau.Krushnabai Vasantrao Jagtap, Sau.Anusayabai Ashok Lonkar, Sau.Sharda Balasaheb Lonkar
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil writ petition challenging orders rejecting applications to set aside ex-parte decree and for setting aside ex-parte proceedings.
Remedy Sought
Petitioner sought to set aside the ex-parte decree and ex-parte proceedings in Regular Civil Suit No. 368/2007.
Filing Reason
Petitioner claimed he was not properly served with summons and the ex-parte decree was passed without giving him an opportunity to defend.
Previous Decisions
The trial court rejected the petitioner's application under Order 9 Rule 13 CPC on 20.08.2009 and his application under Order 9 Rule 7 CPC on 17.07.2010.
Issues
Whether the trial court erred in rejecting the application under Order 9 Rule 13 CPC to set aside the ex-parte decree.
Whether the trial court erred in rejecting the application under Order 9 Rule 7 CPC to set aside ex-parte proceedings.
Submissions/Arguments
Petitioner argued that he was not served with summons and had no knowledge of the suit.
Respondents argued that the petitioner had knowledge of the suit and the service was sufficient.
Ratio Decidendi
An ex-parte decree can be set aside under Order 9 Rule 13 CPC if the defendant was not properly served with summons and had sufficient cause for non-appearance. The trial court must consider the facts and circumstances to determine if the service was proper.
Judgment Excerpts
Heard learned Counsel for the petitioner.
This writ petition is filed challenging the order dated 20.08.2009, passed by 4th Joint Civil Judge, Senior Division, Ahmednagar, below application Exhibit28 in Regular Civil Suit No. 368/2007, and order dated .17.07.2010, passed by 5th Joint Civil Judge, Senior Division, Ahmednagar, below application Exhibit44 in Regular Civil Suit No.368/2007.
Procedural History
The petitioner filed Regular Civil Suit No. 368/2007 for partition. The trial court passed an ex-parte decree. The petitioner filed an application under Order 9 Rule 13 CPC to set aside the ex-parte decree, which was rejected on 20.08.2009. He also filed an application under Order 9 Rule 7 CPC to set aside ex-parte proceedings, which was rejected on 17.07.2010. The petitioner then filed the present writ petition in the High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 9 Rule 13, Order 9 Rule 7
