Case Note & Summary
The dispute arose from an eviction suit filed by Kshtriya Dnyati Sabha, a registered public trust under the Bombay Public Trust Act, 1950, against the heirs of the deceased original tenant. The suit was decreed ex parte on 20 December 2012 by the Small Causes Court, Mumbai. The petitioners, who were the defendants, filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 to set aside the decree, contending that the decree was ex-parte and that proper service had not been effected on some legal heirs under the Bombay Amendment to Order V Rule 15 which requires service on a male family member. The trial court dismissed the application, holding that the decree was not ex-parte but passed under Order XVII Rule 2 CPC because the defendants had earlier appeared and filed a written statement, and that they failed to show sufficient cause for their non-appearance after restoration of the suit. This order was confirmed in appeal by the Appellate Bench of the Small Causes Court. The petitioners then filed the present writ petition under Article 227 of the Constitution of India challenging the concurrent findings. The High Court noted that after the suit was restored following dismissal for default, notices were served on multiple occasions, but the defendants did not appear. The concurrent findings of the courts below were that the decree was under Order XVII Rule 2 CPC, not ex-parte; that there was no sufficient cause for non-appearance; and that the service was proper. The High Court observed that its supervisory jurisdiction under Article 227 is limited and does not permit re-appreciation of evidence or concurrent findings of fact unless they are perverse or suffer from an error apparent on the face of the record. Finding no such error, the court dismissed the writ petition, affirming the decisions of the lower courts. The ratio decidendi emphasized that a decree passed after the defendant had appeared and participated but later failed to appear without sufficient cause is governed by Order XVII Rule 2 CPC and not Order IX Rule 13, and that the Bombay Amendment to Order V Rule 15 did not vitiate the decree in the circumstances.
Headnote
A) Civil Procedure - Decree under Order XVII Rule 2 CPC - Nature of decree - Code of Civil Procedure, 1908, Order XVII Rule 2, Order IX Rule 13 - Decree passed after defendants had appeared and participated in the suit but subsequently failed to appear at hearings is not an ex-parte decree but a decree under Order XVII Rule 2 CPC; an application under Order IX Rule 13 to set aside such decree is not maintainable. The concurrent findings that the decree was under Order XVII Rule 2 CPC were correct and did not warrant interference. (Paras 3,7) B) Civil Procedure - Service of Notice - Order V Rule 15 CPC (Bombay Amendment) - Service of summons on mother of defendants - Code of Civil Procedure, 1908, Order V Rule 15 - The Bombay Amendment provides that service on male members of the family is good service. The petitioners argued that service on the mother for defendants 1(b) and 1(c) was not good service. Held that even if service on mother was not proper, the decree was not ex-parte and the concurrent findings on lack of sufficient cause for non-appearance stood. (Paras 4,5) C) Constitution - Supervisory Jurisdiction under Article 227 - Scope of interference - Constitution of India, Article 227 - High Court's power under Article 227 is supervisory, not appellate; it cannot re-appreciate concurrent findings of fact unless there is an error apparent on the face of the record. The petition failed to demonstrate any such error, and the orders were within jurisdiction. (Paras 6) D) Civil Procedure - Setting aside ex-parte decree - Sufficient cause - Code of Civil Procedure, 1908, Order IX Rule 13 - Defendants had to prove sufficient cause for non-appearance. They failed to do so despite multiple opportunities. Concurrent findings that no sufficient cause was shown were not perverse or illegal. (Paras 3,7) E) Rent Control - Eviction suit - Restoration of suit after dismissal for default - Procedure - Code of Civil Procedure, 1908, Order IX Rule 9 - The suit was dismissed for default, restored on appeal, and notices were served to all defendants. Defendants failed to appear thereafter. The decree was passed in accordance with law after restoration and service of notices. (Paras 4,8)
Issue of Consideration
Whether the impugned judgments correctly held that the decree dated 20 December 2012 was not an ex-parte decree but one under Order XVII Rule 2 CPC, and whether the petitioners showed sufficient cause for non-appearance to set aside the decree
Final Decision
The High Court dismissed the writ petition, finding no merit. The concurrent findings that the decree was not ex-parte but under Order XVII Rule 2 CPC, that there was no sufficient cause for non-appearance, and that service was proper, were confirmed. No interference was warranted under Article 227.
Law Points
- Decree under Order XVII Rule 2 CPC is not an ex-parte decree
- an application under Order IX Rule 13 CPC is not maintainable for such a decree
- Bombay Amendment to Order 5 Rule 15 CPC requires service on male member for good service
- concurrent findings of fact not to be interfered under Article 227 unless error apparent on face of record
- sufficient cause must be shown for setting aside a decree for non-appearance
- after restoration of suit and service of notices
- decree passed upon failure of defendants to appear is lawful
