Case Note & Summary
The appellant, original defendant No.2, suffered an ex-parte decree dated 12.11.2003 for want of filing a written statement. He filed a notice of motion to set aside the decree, which was dismissed as not maintainable. The appellant appealed. The High Court, relying on Prakash Chander Manchanda v. Smt. Janki Manchanda, AIR 1987 SC 42 and Chandrakant Babulal Panchal v. Ashwinibhai Mancharam Patel, 2003(1) Mh.L.J., held that the notice of motion was maintainable. The court noted that on 12.11.2003, the defendant was absent and no evidence had been examined on his behalf. The court found sufficient cause for the defendant's absence and set aside the ex-parte decree subject to payment of costs of Rs.5,000 to the plaintiff within four weeks. The appeal was allowed.
Headnote
A) Civil Procedure - Ex-parte Decree - Setting Aside - Order IX Rule 13 CPC - Maintainability - The appellant-defendant suffered an ex-parte decree for want of written statement. His notice of motion to set aside the decree was dismissed as not maintainable. The High Court held that the application was maintainable and that the appellant had shown sufficient cause for his absence, as the suit was not fixed for hearing on the date of decree and no evidence was led. The decree was set aside subject to payment of costs. (Paras 2-4)
Issue of Consideration
Whether the notice of motion for setting aside the ex-parte decree was maintainable and whether the appellant had sufficient cause for his absence.
Final Decision
Appeal allowed. Ex-parte decree dated 12.11.2003 set aside subject to payment of costs of Rs.5,000 to the plaintiff within four weeks.
Law Points
- Ex-parte decree
- setting aside decree
- Order IX Rule 13 CPC
- maintainability of application
- sufficient cause
Case Details
2005 LawText (BOM) (05) 32
APPEAL NO.478 OF 2005 IN NOTICE OF MOTION NO.503 OF 2004 IN SUIT NO.1924 OF 1988
R.M. Lodha, J.P. Devadhar
Mr.R.D.Soni i/by M/s.Ram & Co. for the appellant, Mr.M.C.Palan with Mr.N.H.Nathani for the respondents
Shantilal Gulabchand Mutha
Tata Engineering & Locomotive Co. Ltd. and The Deccan Co-operative Urban Bank Ltd.
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Nature of Litigation
Appeal against dismissal of notice of motion for setting aside ex-parte decree.
Remedy Sought
Appellant sought setting aside of ex-parte decree dated 12.11.2003.
Filing Reason
Appellant suffered ex-parte decree for want of filing written statement.
Previous Decisions
Notice of motion for setting aside decree was dismissed as not maintainable.
Issues
Whether the notice of motion for setting aside the ex-parte decree was maintainable.
Whether the appellant had sufficient cause for his absence on the date of decree.
Submissions/Arguments
Appellant relied on Prakash Chander Manchanda v. Smt. Janki Manchanda, AIR 1987 SC 42 and Chandrakant Babulal Panchal v. Ashwinibhai Mancharam Patel, 2003(1) Mh.L.J. to argue that the application was maintainable.
Appellant submitted that on 12.11.2003, the defendant was absent and no evidence had been examined on his behalf.
Ratio Decidendi
An application to set aside an ex-parte decree under Order IX Rule 13 CPC is maintainable even if the decree was passed for want of written statement, provided the defendant shows sufficient cause for his absence. In this case, the defendant was absent on the date of decree and no evidence had been led, constituting sufficient cause.
Judgment Excerpts
He suffered the decree for want of filing the written statement.
The said notice of motion was dismissed as not maintainable.
We are satisfied that the appellant has made out sufficient cause for his absence on November 12, 2003.
Procedural History
Suit No.1924 of 1988 was decreed ex-parte on 12.11.2003 against defendant No.2 for want of written statement. Defendant No.2 filed Notice of Motion No.503 of 2004 to set aside the decree, which was dismissed as not maintainable. Hence, Appeal No.478 of 2005 was filed.
Acts & Sections
- Code of Civil Procedure, 1908: Order IX Rule 13
