Case Note & Summary
The appeal was filed against the judgment and order of the Civil Judge, Senior Division, Bicholim, decreeing the suit for recovery of Rs. 60,000 with interest. The appellants (defendants) contended that they were not served with summons and the suit was decreed ex-parte without giving them an opportunity to be heard. The High Court, after hearing both sides, found that the trial court had not properly ensured service of summons and had proceeded ex-parte without sufficient cause. The court set aside the decree and remanded the matter for fresh trial, directing the trial court to give the defendants an opportunity to file their written statement and proceed in accordance with law. The court also directed that the parties appear before the trial court on a specified date.
Headnote
A) Civil Procedure - Service of Summons - Order 5 Rule 1 CPC - Ex-parte Decree - The trial court decreed the suit ex-parte without verifying proper service of summons on the defendant - The appellate court held that the defendant was not served and was denied opportunity to defend - Held that the decree is liable to be set aside and the matter remanded for fresh trial (Paras 2-4).
Issue of Consideration
Whether the trial court was justified in decreeing the suit ex-parte without ensuring proper service of summons on the defendant and without giving him an opportunity to be heard.
Final Decision
The appeal is allowed. The impugned judgment and decree are set aside. The suit is remanded to the trial court for fresh trial. The trial court is directed to give the defendants an opportunity to file their written statement and proceed in accordance with law. The parties are directed to appear before the trial court on 11th September 2006.
Law Points
- Service of summons
- Setting aside ex-parte decree
- Sufficient cause for non-appearance
- Opportunity of hearing
- Natural justice
Case Details
2006 LawText (BOM) (08) 124
FIRST APPEAL NO. 18 OF 1999
Ms. R. Chodankar for Appellants, Ms. Veronica Da Fonseca for Respondent No. 1(a)
Shri Mortulo Ramchandra Gad (since dec.) through LR's and Smt. Jaiwanti Jaiwant Mandrekar
Shri John Pinto (Since deceased) through LR's and Shri Joseph Castelino
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Nature of Litigation
Appeal against decree in a recovery suit
Remedy Sought
Setting aside the ex-parte decree and remand for fresh trial
Filing Reason
Appellants claimed they were not served with summons and were denied opportunity to defend
Previous Decisions
Trial court decreed the suit ex-parte directing defendants to pay Rs. 93,000 with 18% interest
Issues
Whether the trial court properly served summons on the defendants before decreeing the suit ex-parte?
Whether the defendants were denied opportunity to be heard?
Submissions/Arguments
Appellants argued that they were not served with summons and the suit was decreed ex-parte without giving them an opportunity to defend.
Respondents argued that the decree was correctly passed.
Ratio Decidendi
A decree passed without proper service of summons and without giving the defendant an opportunity to be heard is liable to be set aside to uphold principles of natural justice.
Judgment Excerpts
The appeal is preferred against the Judgment and Order passed by the Civil Judge, Senior Division, Bicholim, decreeing the suit and directing that the defendants shall jointly and severally pay an amount of Rs. 93,000/ with interest at the rate of 18% per annum from the date of filing of the suit till the actual payment.
Procedural History
The respondent-plaintiff filed a suit for recovery of Rs. 60,000 with interest. The trial court decreed the suit ex-parte. The defendants appealed to the High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 5 Rule 1
