Case Note & Summary
The petitioner, Sakuma Finvest Pvt. Ltd., was the tenant of the respondent, Chemox Exports Imports Pvt. Ltd. The landlord filed RAE Suit No.1398/3081 of 2012 for eviction, which was decreed ex parte on 9th May 2013. The tenant filed Marji Application No.666 of 2013 under Order IX Rule 13 CPC to set aside the ex parte decree, but it was dismissed on 10th February 2015. The tenant's appeal (Appeal No.108 of 2015) before the Appellate Bench of the Small Cause Court, Mumbai, was also dismissed on 6th May 2017. Aggrieved, the tenant filed the present writ petition. The tenant argued that the ex parte decree should be set aside on two grounds: non-service of summons and sufficient cause for non-appearance. The landlord contended that these pleas are mutually contradictory and that the tenant had only pleaded non-service. The Appellate Bench found that the tenant had not pleaded sufficient cause. The High Court held that the two grounds under Order IX Rule 13 are mutually contradictory and cannot be taken together. The tenant's application lacked pleadings on sufficient cause, and the concurrent findings of the courts below did not suffer from any perversity. The writ petition was dismissed.
Headnote
A) Civil Procedure - Ex parte Decree - Setting Aside - Order IX Rule 13 CPC - Two Grounds - The defendant can seek setting aside of an ex parte decree on either of two grounds: (i) that the summons was not duly served, or (ii) that he was prevented by sufficient cause from appearing when the suit was called for hearing. These two grounds are mutually contradictory and cannot be taken simultaneously. (Paras 3-6) B) Civil Procedure - Ex parte Decree - Setting Aside - Sufficient Cause - Pleading Requirement - The defendant must specifically plead and prove sufficient cause for non-appearance. An oral request or vague assertion without proper pleadings is insufficient. (Paras 4-7) C) Civil Procedure - Writ Jurisdiction - Interference with Concurrent Findings - The High Court under Article 227 will not interfere with concurrent findings of fact unless there is a patent error of law or perversity. The Appellate Bench's finding that the tenant failed to plead sufficient cause is a finding of fact not open to challenge. (Paras 8-9)
Issue of Consideration
Whether the tenant had made out a case under Order IX Rule 13 CPC to set aside the ex parte decree, and whether the concurrent findings of the courts below suffered from any perversity warranting interference under Article 227 of the Constitution.
Final Decision
The writ petition is dismissed. The concurrent findings of the courts below are upheld.
Law Points
- Order IX Rule 13 CPC
- Ex parte decree
- Sufficient cause
- Non-service of summons
- Mutually contradictory pleas
- Concurrent findings
- Writ jurisdiction
