Bombay High Court Dismisses Revision Against Order Rejecting Setting Aside of Ex-Parte Decree in Encroachment Suit. Court Holds That Petitioner Failed to Prove Non-Service of Summons and Alleged Collusion, and Application Under Order IX Rule 13 CPC Was Without Substance.

Civil revision application against dismissal of application under Order IX Rule 13 CPC to set aside an ex-parte decree in a suit for possession, damages, and mandatory injunction.

The petitioner (defendant no.1 in original suit) sought setting aside of the ex-parte decree passed in Regular Civil Suit No. 609 of 1990, alleging non-service of summons and collusion.

The petitioner claimed she was unaware of the suit until execution proceedings, alleging that summons were not served and that she was illiterate and defrauded into signing court documents by co-defendant (respondent no.4).

The trial court dismissed the application under Order IX Rule 13 CPC. The appeal against that order was also rejected, before the petitioner approached the High Court in revision.

Whether the ex-parte decree was liable to be set aside for non-service of summons on the defendant no.1? Whether the petitioner had sufficient cause for not appearing in the suit and whether there was collusion between plaintiff and other defendants?

[i] Record shows that summons to the defendants were not prepared, not signed and issued. Had those been issued, the Roznama of the Civil Suit would have shown that summons were prepared and issued, and there would have been exhibit marks thereto. Further, summons ought to have been on record after due service thereof. In the event plaintiff could show that the defendants appeared suo moto, the original summons would have been shown to be prepared and delivered for service. All this record is absent in the case. [ii] The story of plaintiff is of issue of summons and service thereof for which there is no evidence on record. [iii] Reliance of the plaintiff in the alternative is on the application [Exh.11], in which defendant no.1 has admitted that she has received the summons. However, this admission pertains to existence of a document of which primary evidence is to be brought by inspection of the document. The very existence of document is not shown. This admission of the defendant no.1 is, therefore, of no consequence. [iv] The defendant no.1 pleaded that it is at the behest and at the representations which are seen to be misrepresentations, she was taken to the Court and her signatures were obtained on two occasions, namely when she filed application [Exh.11] and when she filed application for adjournment in response to notice under Rule 22 of Order 21 of Civil Procedure Code.

An applicant seeking to set aside an ex-parte decree must establish that summons were not duly served, and mere allegations of fraud without convincing evidence do not warrant setting aside the decree. The burden of proving non-service lies on the applicant, and failure to discharge it results in dismissal.

According to the plaintiff, he had purchased suit plot admeasuring 3310 sq. ft., having dimensions 164' x 167' on 29th October, 1985, from defendant no.2 under registered sale-deed for a consideration of Rs. 19,000/-. Taking advantage of plaintiff's absence, the defendant no.1 has encroached upon the suit plot with the help of defendant no.4, and raised a construction thereon. As per the plaint map, the area encroached, according to plaintiff, is 996 sq.ft. Trial Court found that from the evidence led by the plaintiff, the suit claim was proved and hence decreed the suit. ... The suit was decreed on 17th September, 1991. Petitioner averred in her application that she has purchased the suit property by registered sale-deed dated 10th March, 1989 from defendant no.4 for a valuable consideration of Rs.8,000/-, got her name recorded, spent an amount of Rs. 2,00,000-00 for construction of a house thereon, got electricity connection, is occupying the house and is paying the Municipal taxes etc. The learned Trial Judge, after hearing oral submissions, delivered the Judgment and dismissed the petitioner's application for setting aside ex parte decree, finding it to be devoid of any substance. Heard learned Advocate Mr. Z.A. Haq in support of the petitioner and learned Advocate Mr. Laddhad for Mr. Sagar Patil for the contesting respondent, the original plaintiff. …It is denied that till 21.7.93 the applicant was having no knowledge about the filing of suit against her. It is denied that no notices of suit were served on applicant. In this regard the position is made clear in further pleas. It is denied that it is after 21.2.93 on inspection by the Advocate the applicant came to know that the notices were not served on N.As. It is denied that the said suit was filed in collusion with N.A. Nos. 2 to 4. …At her own instance, this N.A. has helped her from time to time in earlier suit filed by the N.A. No. 1 against this applicant. She avoided to remain present. She was well aware of the proceeding. However, only to avoid the execution of decree, she has made false allegations against this Non-applicant.

1. Regular Civil Suit No. 609 of 1990 filed by respondent no.1 (plaintiff) for possession, damages, and mandatory injunction against petitioner and others. 2. Earlier, plaintiff had filed Civil Suit No. 369 of 1989 for injunction but withdrew it. 3. In suit 609/1990, defendants 1 and 4 failed to file written statement; suit proceeded ex-parte. 4. Ex-parte decree passed on 17.09.1991. 5. Execution petition filed on 06.01.1992; warrant for possession issued. 6. Petitioner obstructed execution and filed Misc. Judicial Case No. 106 of 1999 to set aside ex-parte decree. 7. Application dismissed by trial court; appeal from order dismissed. 8. Civil Revision Application No. 1196 of 1998 filed before High Court; dismissed on 20.09.2006.

• Code of Civil Procedure, 1908: Order IX Rule 13, Order XXI Rule 22