Case Note & Summary
The petitioner, Smt. Meera M.R., filed a writ petition under Article 227 of the Constitution of India challenging two orders passed by the LXII Additional City Civil and Sessions Judge, Bengaluru, in P & SC No.24/2021. The first order dated 11.12.2023 rejected IA No.2 filed by the respondent under Order IX Rule 13 CPC for setting aside an ex parte order, and the second order dated 02.02.2024 rejected IA No.4 filed under Order IX Rule 7 CPC for setting aside ex parte proceedings. The background is that the petitioner had filed a succession case seeking a Letter of Administration in respect of a Will executed by Smt. Jayamma on 19.02.2007. After paper publication and no objections, the trial court recorded evidence. The respondent, who was not initially a party, later sought to participate. The trial court rejected both applications without considering the merits of the explanation for absence and without affording a proper hearing. The High Court held that the trial court had acted in violation of principles of natural justice and the provisions of the CPC. The court set aside both impugned orders and directed the trial court to restore IA No.2 and IA No.4 to file and decide them afresh after hearing both sides, in accordance with law. The writ petition was allowed.
Headnote
A) Civil Procedure Code - Order IX Rule 13 - Setting Aside Ex Parte Decree - Sufficient Cause - The Trial Court rejected the application for setting aside ex parte order without considering the explanation for absence and without affording opportunity of hearing - Held that the court must consider the explanation on merits and not dismiss mechanically (Paras 5-7). B) Civil Procedure Code - Order IX Rule 7 - Setting Aside Ex Parte Proceedings - The Trial Court rejected the application for setting aside ex parte proceedings on the ground that the application was filed after the ex parte order was passed - Held that Order IX Rule 7 applies to setting aside ex parte proceedings before decree, and the court should have considered the application on merits (Paras 5-7). C) Constitution of India - Article 227 - Supervisory Jurisdiction - High Court can interfere when subordinate court acts in violation of principles of natural justice or fails to exercise jurisdiction vested in it - Held that the impugned orders are unsustainable and liable to be set aside (Paras 6-8).
Issue of Consideration
Whether the Trial Court erred in rejecting the applications filed under Order IX Rule 13 CPC and Order IX Rule 7 CPC without considering the merits and in violation of principles of natural justice.
Final Decision
The writ petition is allowed. The impugned orders dated 11.12.2023 on IA No.2 and dated 02.02.2024 on IA No.4 in P & SC No.24/2021 are set aside. The trial court is directed to restore IA No.2 and IA No.4 to file and decide them afresh after hearing both sides, in accordance with law.
Law Points
- Order IX Rule 13 CPC
- Order IX Rule 7 CPC
- Section 151 CPC
- Natural Justice
- Ex parte decree
- Setting aside ex parte order
- Sufficient cause
- Writ jurisdiction under Article 227
