Case Note & Summary
The petitioner, Patel Engineering Limited, was the original defendant in Short Cause Suit No.2987 of 2002 filed by the respondent, United Real Estate and Builders Private Limited, for injunction. The suit was dismissed for non-prosecution on 23/2/2005 due to the plaintiff's failure to serve writ summons. The plaintiff filed a restoration application (Notice of Motion No.845/10) in March 2010. The motion was served on the defendants with a covering letter indicating it would appear on board on 9/4/2010. On that date, the board was discharged and the matter was adjourned to 26/4/2010. On 26/4/2010, the judge did not sit, but against the suit number, the date 2/7/2010 was written. The defendants, believing the next date was 2/7/2010, did not appear on 4/5/2010 or 11/6/2010, when the motion was actually heard and allowed ex parte. The defendants received a letter dated 25/6/2010 informing them that the motion was allowed on 11/6/2010. They then filed Notice of Motion No.1840 of 2010 to set aside the ex parte order, which was rejected by the trial court on 27/4/2011. The High Court held that the defendants were misled by the incorrect adjournment date and were denied an opportunity of hearing. The impugned order was set aside, and the restoration application was directed to be heard afresh after giving notice to the defendants.
Headnote
A) Civil Procedure - Restoration of Suit - Ex Parte Order - Natural Justice - The defendants were misled by an incorrect adjournment date and could not participate in the restoration proceedings - The trial court's order restoring the suit without hearing the defendants was set aside - Held that the defendants were denied an opportunity of hearing, violating principles of natural justice (Paras 3-6).
B) Civil Procedure - Order IX Rule 13 CPC - Setting Aside Ex Parte Decree - Applicability - The principles of Order IX Rule 13 CPC apply to ex parte orders of restoration - The defendants must be given notice and an opportunity to be heard before restoration - Held that the impugned order rejecting the defendants' application was unsustainable (Paras 4-6).
Issue of Consideration
Whether the City Civil Court erred in rejecting the defendants' application to set aside the ex parte order restoring the suit, when the defendants were misled by an incorrect adjournment date and were not heard before the restoration order was passed.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 27/4/2011, and directed the trial court to hear Notice of Motion No.845 of 2010 afresh after giving notice to the defendants.
Law Points
- Natural justice
- Ex parte order
- Restoration of suit
- Notice to defendants
- Order IX Rule 13 CPC
- Setting aside ex parte decree
Case Details
2011 LawText (BOM) (11) 31
Writ Petition No.7840 of 2011
Mr. V R Dhond, Senior Advocate, with Mr. Ashish Kamat, Mr. Shauilesh Poria, Mr. Amit Kanani i/by M/s. Hariani & Co. for the Petitioner; Ms. Alpana Ghone with Ms. P L Bachani i/by I R Joshi & Co. for the Respondent.
Patel Engineering Limited
United Real Estate and Builders Private Limited
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Nature of Litigation
Writ petition challenging the rejection of an application to set aside an ex parte order restoring a suit.
Remedy Sought
The petitioner (original defendant) sought to set aside the order dated 11/6/2010 restoring the suit, and to have the restoration application heard afresh after giving them an opportunity of hearing.
Filing Reason
The defendants were misled by an incorrect adjournment date and could not participate in the restoration proceedings, resulting in an ex parte order against them.
Previous Decisions
The trial court rejected the defendants' Notice of Motion No.1840 of 2010 on 27/4/2011.
Issues
Whether the defendants were denied an opportunity of hearing before the restoration order was passed.
Whether the trial court erred in rejecting the defendants' application to set aside the ex parte restoration order.
Submissions/Arguments
The defendants argued that they were misled by the court's indication of 2/7/2010 as the next date and could not appear on 11/6/2010 when the restoration motion was allowed.
The plaintiffs opposed the application, but the judgment does not detail their arguments.
Ratio Decidendi
An ex parte order restoring a suit without notice to the defendants violates principles of natural justice. The defendants must be given an opportunity to be heard before such an order is passed, and the principles of Order IX Rule 13 CPC apply to restoration proceedings.
Judgment Excerpts
The Defendants went away in view of the fact that the next date was 2/7/2010.
To the surprise of the Defendants, they received a letter dated 25/6/2010 from the Solicitors of the Petitioners stating that the said Notice of Motion No.845/10 was allowed on 11/6/2010.
The learned Judge considered the said Notice of Motion filed by the Defendants, and as indicated above, by impugned order dated 27/4/2011 rejected the same.
Procedural History
The respondent filed Short Cause Suit No.2987 of 2002 for injunction. The suit was dismissed for non-prosecution on 23/2/2005. The respondent filed Notice of Motion No.845/10 in March 2010 for restoration. The motion was allowed ex parte on 11/6/2010. The petitioner filed Notice of Motion No.1840 of 2010 to set aside the ex parte order, which was rejected on 27/4/2011. The petitioner then filed the present writ petition.
Acts & Sections
- Code of Civil Procedure, 1908: Order IX Rule 13
