Case Note & Summary
The case arises from a suit for specific performance of a contract filed by the respondent/plaintiff against the appellants/defendants. The trial court decreed the suit ex-parte as the defendants failed to appear despite service of summons. The defendants then filed an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 to set aside the ex-parte decree, which was dismissed by the trial court. Aggrieved, the defendants filed the present appeal. The High Court examined whether the defendants had shown sufficient cause for their non-appearance. The court noted that the trial court had recorded that summons were duly served on the defendants, and the defendants did not rebut this presumption. The defendants claimed that their counsel had not informed them about the case, but no evidence was led to support this claim. The court also observed that the application under Order 9 Rule 13 was filed beyond the period of limitation without any application for condonation of delay. The High Court held that the defendants failed to make out a sufficient cause for setting aside the ex-parte decree and dismissed the appeal, confirming the trial court's order.
Headnote
A) Civil Procedure - Ex-parte Decree - Setting Aside - Order 9 Rule 13 CPC - Sufficient Cause - The appellants/defendants failed to appear despite service of summons and did not prove any sufficient cause for their non-appearance. The court held that mere negligence of counsel without supporting evidence does not constitute sufficient cause. (Paras 1-19) B) Civil Procedure - Service of Summons - Presumption of Service - Order 5 Rule 19 CPC - The trial court had recorded that summons were duly served on the defendants, and the appellants did not rebut this presumption. The appellate court upheld the finding of valid service. (Paras 10-15) C) Civil Procedure - Delay in Filing Application - Limitation - The application under Order 9 Rule 13 was filed beyond the period of limitation, and no application for condonation of delay was made. The court noted that the appellants did not explain the delay. (Paras 16-18)
Issue of Consideration
Whether the appellants/defendants made out a sufficient cause for setting aside the ex-parte decree passed against them under Order 9 Rule 13 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the appeal, confirming the trial court's order refusing to set aside the ex-parte decree.
Law Points
- Order 9 Rule 13 CPC
- Sufficient cause for setting aside ex-parte decree
- Service of summons
- Due diligence
- Negligence of counsel
