Case Note & Summary
The petitioners, original defendants in Summary Suit No.4914 of 2012, challenged the order dated 08.07.2013 passed by the City Civil Court, Mumbai, dismissing their Notice of Motion No.427 of 2013 seeking to set aside an ex-parte decree. The respondent-plaintiff had filed the suit under Order XXXVII CPC for recovery of Rs.6,06,110/- for supply of petroleum products between 2006 and July 2011. Summons were served on the defendants, and a Vakalatnama was filed on 10.12.2012. The suit was adjourned to 04.02.2013 for directions. On 28.12.2012, the plaintiff moved a summons for judgment, which was preponed to 09.01.2013. The plaintiff attempted to serve the summons for judgment on the defendants' advocate on 26.12.2012 but found the office locked, and then served it directly on the defendants on 28.12.2012. On 09.01.2013, an affidavit of service was filed. The summons for judgment was adjourned to 14.01.2013, but no appearance was made on behalf of the defendants, and an ex-parte decree was passed. The defendants filed a notice of motion to set aside the decree, which was dismissed by the trial court. The High Court held that since a Vakalatnama had been filed, the summons for judgment should have been served on the advocate, and service on the defendants directly was not sufficient. The court found that the defendants had sufficient cause for non-appearance and set aside the ex-parte decree, allowing the defendants to file their affidavit in defence within four weeks.
Headnote
A) Civil Procedure - Summary Suit - Service of Summons for Judgment - Order XXXVII, Code of Civil Procedure, 1908 - Where a Vakalatnama has been filed by the defendants, the summons for judgment must be served on the advocate, not directly on the defendants. The court held that service on the defendants directly without prior attempt on the advocate is not sufficient compliance, and the ex-parte decree was set aside as the defendants had sufficient cause for non-appearance. (Paras 1-16) B) Civil Procedure - Setting Aside Ex-Parte Decree - Sufficient Cause - Order XXXVII Rule 4, Code of Civil Procedure, 1908 - The court held that the defendants' explanation that they were not aware of the hearing date due to non-service on their advocate constituted sufficient cause for setting aside the ex-parte decree. The court emphasized that the defendants should be given an opportunity to defend the suit on merits. (Paras 1-16)
Issue of Consideration
Whether the ex-parte decree passed in a summary suit under Order XXXVII CPC is liable to be set aside when the summons for judgment was not served on the defendants' advocate but directly on the defendants, and whether the defendants have shown sufficient cause for setting aside the decree.
Final Decision
The High Court allowed the writ petition, set aside the order dated 08.07.2013 and the ex-parte decree dated 14.01.2013, and directed the defendants to file their affidavit in defence within four weeks. The suit was restored to the file of the trial court for hearing on merits.
Law Points
- Service of summons for judgment must be on advocate if Vakalatnama filed
- Order XXXVII CPC
- Ex-parte decree set aside
- Sufficient cause for setting aside ex-parte decree
