Case Note & Summary
The writ petition under Article 227 of the Constitution challenged an order of the Small Causes Court, Bombay, which had set aside an ex-parte decree in a rent eviction suit. The petitioner-plaintiff, a Hindu Undivided Family, had filed a suit against the respondent-defendant bank seeking eviction on grounds of arrears of rent, change of user, nuisance, wastage, unauthorized alterations, and non-payment of municipal taxes under Sections 12(1) and 13(1)(a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. Summons was served on the defendant on 6 February 1992, and the defendant’s advocate filed a vakalatnama on 16 March 1992. The suit was adjourned several times at the request of the defendant’s advocate for filing a written statement. On 17 September 1993, after another adjournment to 8 October 1993, neither the defendant nor its advocate appeared thereafter. The suit was decreed ex-parte on 17 October 1994. The defendants claimed they learnt of the decree on 22 January 1996 and filed an application under Order 9 Rule 13 CPC on 25 January 1996 to set it aside. That application was allowed on 31 August 1996, restoring the suit. The petitioner challenged this order before the High Court, raising three principal submissions: first, that the trial court lacked jurisdiction because the decree was under Order 8 Rule 5(2) CPC and only an appeal lay; second, that no sufficient cause was shown for the defendant’s absence; and third, that the application was barred by limitation. The respondent contended that the decree was under Order 9 Rule 6 CPC and that sufficient cause existed, praying for a pragmatic approach to condone delay. The High Court formulated the core legal question: whether a decree passed in the absence of the defendant and his counsel, after prior appearance but without filing a written statement, is a decree under Order 9 Rule 6 or under Order 8 Rule 5(2). The court examined conflicting judgments of single judges of the Bombay High Court. In Rashtriya Chemicals and Fertilizers Ltd v. Ota Kandla Pvt Ltd (1992 Mh.L.J. 1266) and Laxman Zingraji Adhau v. Sushila Zinguji Thakre (1995 (4) Bom. C.R. 677), it was held that such a decree is under Order 8 Rule 5 and an application under Order 9 Rule 13 is not maintainable when counsel was present. However, another view in Manomal Kushaldas Sindhi v. Gangadhar Pannalal Rai (Civil Revision Application No.489 of 1981) and a judgment by Kapadia, J. suggested that a decree under Order 8 Rule 5 could be passed even in the defendant’s absence. Because of this divergence, a reference had been made to a larger bench. The High Court in this case was seized of the question but the provided judgment text ends before the court’s final decision is recorded, making the ultimate outcome of the writ petition unclear from the available material.
Headnote
A) Civil Procedure - Ex-Parte Decree - Nature of Decree When Defendant Absent After Prior Appearance - Code of Civil Procedure, 1908, Order 9 Rule 6, Order 8 Rule 5(2), Order 8 Rule 10 - The court was required to decide whether a decree passed in the absence of the defendant and his counsel, after the defendant had appeared and sought adjournments to file a written statement but failed to do so, is a decree under Order 9 Rule 6 (ex-parte decree) or one under Order 8 Rule 5(2). The court noted a conflict of views among single judges of the Bombay High Court, with one view holding that such a decree is an ex-parte decree and an application under Order 9 Rule 13 is maintainable, and the other view holding that it is a decree under Order 8 Rule 5. The question had been referred to a larger bench in a separate proceeding. (Paras 5-8).
Issue of Consideration
Whether a decree passed in the absence of the defendant and his counsel is a decree under Order 9 Rule 6 or Order 8 Rule 5(2) CPC, and whether an application under Order 9 Rule 13 is maintainable to set aside such decree.
Law Points
- classification of ex-parte decree
- maintainability of application under Order 9 Rule 13 CPC
- sufficient cause for setting aside decree
- condonation of delay
- Article 227 supervisory jurisdiction
- rent control eviction grounds
- divergence of views on decree in absence of defendant
Case Details
2006 LawText (BOM) (09) 26
WRIT PETITION NO.2046 OF 1997
Mr Kishor Jain a/w Ms Sheetal S. Shah with Ms Shweta Shetty i/b M/s Mehta Girdharlal, for the petitioner/plaintiff; Mr R.D.Dave, i/b M/s N.N.Vaishnava & Co., for the respondents/defendants.
Lachhiram Chudiwala, H.U.F. through its Karta/Manager Shri T.L.Chudiwala
The Bank of Rajasthan Limited
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Nature of Litigation
Civil writ petition under Article 227 of the Constitution challenging an order setting aside an ex-parte decree in a rent eviction suit.
Remedy Sought
The petitioner-plaintiff sought to quash the order dated 31 August 1996 of the Small Causes Court which had set aside the ex-parte decree dated 17 October 1994.
Filing Reason
The plaintiff filed the writ petition because the trial court allowed the defendants' application under Order 9 Rule 13 CPC, thereby setting aside the ex-parte decree obtained by the plaintiff.
Previous Decisions
The Small Causes Court, Bombay, by judgment and order dated 17 October 1994, decreed the suit ex-parte in favour of the plaintiff. Subsequently, on 31 August 1996, the same court allowed the defendants' Misc. Notice No.84 of 1996, setting aside that ex-parte decree.
Issues
Whether a decree passed in the absence of the defendants and their advocate is a decree under Order 9 Rule 6 or under Order 8 Rule 5(2) CPC, in a suit where summons has been served, the defendants appear through advocate, seek adjournments for filing written statement, fail to file it, and then do not appear when the suit is called on for hearing.
Whether an application under Order 9 Rule 13 for setting aside such a decree would be maintainable.
Whether the defendants showed sufficient cause for non-appearance.
Whether the application was barred by limitation.
Submissions/Arguments
Petitioner argued that the trial court lacked jurisdiction to entertain the application under Order 9 Rule 13 because the decree was under Order 8 Rule 5(2) CPC, and the only remedy was an appeal; no sufficient cause was shown as the defendants were grossly negligent; and the application was barred by limitation.
Respondent submitted that the decree was passed under Order 9 Rule 6 CPC, sufficient cause prevented appearance, and courts should take a pragmatic view to condone delay and offer a fair opportunity on merits.
Judgment Excerpts
This writ petition under Article 227 of the Constitution of India is directed against the Judgment and order dated 31.8.1996, rendered by the learned Judge of the Small Causes Court at Bombay, by which Misc. Notice No.84 of 1996 in R.A.E.Suit No.57/106 of 1992 taken out by the respondents-defendants has been allowed.
the defendants claim that they came to know about the ex-parte decree on 22.1.1996 and immediately on 25.1.1996 they took out Notice No.84 of 1996 for setting aside the ex-parte decree dated 17.10.1994.
whether a decree passed in the absence of the defendants and their advocate is a decree under Order 9, rule 6 or is a decree passed under Order 8, rule 5(2) of CPC, in a suit where summons has admittedly been served on the defendants and where they appear and seek few adjournments through their advocate for filing written statement and fail to do so and then do not appear on the date when the suit was called on for hearing.
when a decree is passed in the absence of the defendants then it is a decree passed under Order IX Rule 6.
Procedural History
The petitioner-plaintiff filed a rent eviction suit against the respondent-defendant in the Small Causes Court. Summons was served on the defendant on 6 February 1992. The defendant's advocate filed a vakalatnama on 16 March 1992. Several adjournments were sought for filing a written statement. On 17 September 1993, an adjournment to 8 October 1993 was granted. On 8 October 1993 and thereafter, neither the defendant nor its advocate appeared. The suit was decreed ex-parte on 17 October 1994. The defendants claim they learned of the decree on 22 January 1996 and filed an application on 25 January 1996 to set it aside. The trial court allowed that application on 31 August 1996, setting aside the ex-parte decree. The petitioner filed the present writ petition under Article 227 in 1997 challenging that order.
Acts & Sections
- Constitution of India: Article 227
- Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947: Section 12(1), Section 13(1)(a)
- Code of Civil Procedure, 1908: Order 8 Rule 5(2), Order 8 Rule 10, Order 9 Rule 6, Order 9 Rule 13
- Companies Act, 1956:
- Mewar Companies Act, 1942:
