Case Note & Summary
The petitioner, Hemant Ganeshprasad Jaiswal, filed a suit for specific performance of an agreement for sale dated 6.2.2006 against the respondent, Murlidhar Govind Khade, in respect of land admeasuring 41 R situated at Mouja-Gangapur, Nashik. The total consideration was Rs.5,71,000/-, out of which the plaintiff claimed to have paid Rs.3,71,000/-. The defendant declined to execute the sale deed, leading to the filing of Special Civil Suit No.595 of 2007. The plaintiff also filed an application for temporary injunction, which was allowed on 7.4.2008 and was not challenged by the defendant. The defendant filed his written statement but after the injunction order, he did not further participate in the proceedings. Issues were framed on 2.5.2008, and the suit proceeded ex-parte against the defendant. The suit was decreed on 10.2.2009, directing the plaintiff to deposit the balance amount and the defendant to apply for government permission to execute the sale deed. The defendant then filed an application under Order 9 Rule 13 CPC to set aside the ex-parte decree, which was allowed by the learned 5th Jt. Civil Judge, Senior Division, Nashik on 29.12.2011. The petitioner challenged this order under Article 227 of the Constitution of India. The High Court held that the defendant failed to show sufficient cause for his non-appearance. The defendant's explanation that he was under the impression that the suit would not proceed without his presence was not accepted. The court noted that the defendant had knowledge of the proceedings, had filed a written statement, and had even obtained an interim order from the District Court in an appeal against the injunction, but still did not appear. The High Court set aside the trial court's order and restored the ex-parte decree.
Headnote
A) Civil Procedure Code - Order 9 Rule 13 - Setting Aside Ex-Parte Decree - Sufficient Cause - The defendant must show sufficient cause for his non-appearance on the date of hearing. Mere filing of written statement and initial participation does not constitute sufficient cause if the defendant subsequently fails to appear without any explanation. (Paras 5-7) B) Specific Performance - Agreement for Sale - Ex-Parte Decree - The plaintiff filed suit for specific performance of agreement for sale dated 6.2.2006. The defendant did not challenge the interim injunction order and stopped participating after issues were framed. The ex-parte decree was passed on 10.2.2009. The trial court allowed the defendant's application under Order 9 Rule 13 CPC, but the High Court set aside that order, holding that the defendant failed to show sufficient cause. (Paras 3-8) C) Civil Procedure Code - Order 9 Rule 13 - Burden of Proof - The burden is on the applicant to prove that he had sufficient cause for not appearing. The defendant's claim that he was under the impression that the suit would not proceed without his presence is not a valid ground. (Para 7)
Issue of Consideration
Whether the learned trial court was justified in allowing the application under Order 9 Rule 13 CPC and setting aside the ex-parte decree when the defendant failed to show sufficient cause for his non-appearance.
Final Decision
The High Court allowed the writ petition, set aside the order dated 29.12.2011 passed by the learned 5th Jt. Civil Judge, Senior Division, Nashik, and restored the ex-parte decree dated 10.2.2009 passed in Special Civil Suit No.595 of 2007.
Law Points
- Order 9 Rule 13 CPC
- Sufficient cause
- Ex-parte decree
- Specific performance
- Agreement for sale
- Civil Procedure Code
- 1908
