Case Note & Summary
The appellant, Ravi Kiran Aggarwal, filed an appeal under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908, against the order of the City Civil Court, Mumbai, dated 30th April 2010, which dismissed his application under Order IX Rule 13 CPC for setting aside an ex-parte decree. The ex-parte decree was passed in a suit filed by the respondents (Matadin Kejriwal and others) against the appellant and others for declaration and injunction. The appellant contended that he had engaged an advocate who assured him of appearing, but the advocate failed to appear on the date of hearing, leading to the ex-parte decree. The respondents opposed the application, arguing that the appellant was negligent and had not shown sufficient cause. The trial court dismissed the application, holding that the appellant's explanation was not satisfactory. On appeal, the High Court examined whether the appellant had sufficient cause for non-appearance. The court noted that the appellant had not filed any affidavit of the advocate to support his claim and that the appellant himself was aware of the proceedings but chose to rely on the advocate without follow-up. The court held that the appellant failed to exercise due diligence and that the explanation was not sufficient to set aside the ex-parte decree. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Ex-parte Decree - Setting Aside - Order IX Rule 13 CPC - Sufficient Cause - The appellant sought to set aside an ex-parte decree passed in a suit for declaration and injunction. The court held that the appellant failed to demonstrate sufficient cause for his non-appearance, as the explanation of being misled by his advocate was not supported by evidence and the appellant had not exercised due diligence. The appeal was dismissed. (Paras 1-10)
Issue of Consideration
Whether the appellant had sufficient cause for his non-appearance on the date of hearing to warrant setting aside of the ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure, 1908.
Final Decision
The appeal is dismissed. The order of the City Civil Court, Mumbai, dated 30th April 2010, is confirmed. No order as to costs.
Law Points
- Order IX Rule 13 CPC
- Sufficient cause
- Ex-parte decree
- Setting aside
- Liberal approach
- Negligence
- Due diligence
