Case Note & Summary
The appeal arose from a judgment and order dated February 29, 1992, passed by the Learned Civil Judge, Senior Division, Raigad at Alibag in Miscellaneous Application No.80 of 1991, which dismissed the appellant's application to set aside an ex-parte decree. The appellant was the original defendant in a suit filed by the respondent-plaintiff. The suit was decreed ex-parte on September 9, 1991. The appellant filed an application on September 28, 1991, under Order 9 Rule 13 of the Code of Civil Procedure, 1908, to set aside the ex-parte decree, alleging that he had no knowledge of the hearing date. The appellant contended that the suit was kept on the sine die list and that on the respondent's application dated July 16, 1991, the suit was fixed for hearing on July 30, 1991. The court ordered notice to be issued, but the appellant claimed it was never served. The appellant's advocate informed him that the suit was fixed for September 18, 1991. When the appellant attended court on that date, he learned that the suit had been decreed ex-parte on September 9, 1991. The appellant stated on oath that on July 29, 1991, the bailiff did not tender the notice. The respondent argued that the bailiff attempted service on July 29, 1991, but the appellant refused to accept, and notice was affixed under Order 5 Rule 17 CPC. The court examined the depositions of the appellant, the bailiff, and the appellant's advocate. The court found that the evidence did not conclusively prove valid service. The court held that the appellant had sufficient cause for non-appearance and set aside the ex-parte decree, restoring the suit to its original number, subject to payment of costs of Rs. 500 to the respondent.
Headnote
A) Civil Procedure - Ex-Parte Decree - Setting Aside - Sufficient Cause - Order 9 Rule 13, Code of Civil Procedure, 1908 - The appellant-defendant sought to set aside an ex-parte decree on the ground that notice of the hearing date was not served on him. The court examined the evidence including depositions of the appellant, the bailiff, and the advocate. Held that the appellant had sufficient cause for non-appearance as the notice was not properly served, and the ex-parte decree was set aside with costs (Paras 1-5).
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.
Final Decision
Appeal allowed. The impugned order dated February 29, 1992 is set aside. The ex-parte decree dated September 9, 1991 is set aside. The suit is restored to its original number. The appellant shall pay costs of Rs. 500 to the respondent within four weeks.
Law Points
- Sufficient cause for setting aside ex-parte decree
- Service of notice under Order 5 Rule 17 CPC
- Burden of proof on plaintiff to prove valid service
