Case Note & Summary
The petitioners, Narendra Pandurang Chatim and Vandana Narendra Chatim, filed two writ petitions (Writ Petition Nos. 61 and 62 of 2014) before the Bombay High Court at Goa challenging an ex-parte decree dated 30th April 2013 passed by the Civil Judge, Senior Division, Panaji in Regular Civil Suit No. 115/2012/A. The respondent, Shrikant Shambu Volvoikar, had filed the suit for permanent injunction against the petitioners. The petitioners alleged that they were never served with summons in the suit and that the suit was filed at a wrong address. The trial court proceeded ex-parte and decreed the suit in favor of the plaintiff. The petitioners contended that the ex-parte decree was a nullity due to non-service of summons and that they had no knowledge of the proceedings until they received a notice in execution proceedings. The respondent argued that the petitioners had an alternative remedy under Order 9 Rule 13 CPC and that the writ petition was not maintainable. The court, after hearing the parties, held that the ex-parte decree was a nullity because the summons were not served at the correct address of the defendants. The court noted that the process server's report indicated service at a different address, and the petitioners had no opportunity to defend. The court exercised its writ jurisdiction under Article 226/227 of the Constitution and set aside the ex-parte decree, allowing the writ petitions. The court directed that the suit be restored to its original number and that the petitioners be given an opportunity to file their written statement and contest the suit on merits. The court also imposed costs of Rs. 5,000 on the respondent for obtaining the decree by suppression of facts.
Headnote
A) Civil Procedure - Ex-parte Decree - Service of Summons - Nullity - An ex-parte decree passed without proper service of summons upon the defendants is a nullity and can be challenged even in collateral proceedings - The court held that where the plaintiff failed to serve summons on the defendants at their correct address and the process server's report was false, the decree is void ab initio and the High Court can exercise its writ jurisdiction to set it aside despite availability of alternative remedy under Order 9 Rule 13 CPC, as the remedy is not efficacious when the decree is a nullity (Paras 5-10). B) Civil Procedure - Inherent Powers - Section 151 CPC - The court has inherent power to set aside a decree which is a nullity for want of jurisdiction or for fraud - The court held that when a decree is passed without service of summons, it is a nullity and the court can exercise its inherent powers under Section 151 CPC to recall such decree (Paras 8-10). C) Writ Jurisdiction - Article 226/227 - Alternative Remedy - The High Court can entertain a writ petition challenging an ex-parte decree which is a nullity even if alternative remedy under Order 9 Rule 13 CPC is available, because the remedy is not efficacious when the decree is void ab initio - The court held that the petitioners were not required to exhaust alternative remedy as the decree suffered from patent illegality (Paras 5-10).
Issue of Consideration
Whether an ex-parte decree passed without proper service of summons upon the defendants is a nullity and liable to be set aside, and whether the High Court can exercise its writ jurisdiction under Article 226/227 of the Constitution to grant such relief when alternative remedy under Order 9 Rule 13 CPC is available but not efficacious.
Final Decision
The writ petitions are allowed. The ex-parte decree dated 30th April 2013 passed by the Civil Judge, Senior Division, Panaji in Regular Civil Suit No. 115/2012/A is set aside. The suit is restored to its original number. The petitioners are directed to file their written statement within four weeks. The respondent shall pay costs of Rs. 5,000 to the petitioners.
Law Points
- Ex-parte decree set aside due to non-service of summons
- Order 5 Rule 12 CPC
- Order 9 Rule 13 CPC
- Section 151 CPC
- Inherent powers of court
- Nullity of decree for want of jurisdiction
