Case Note & Summary
The appeal arose from a suit for specific performance and mandatory injunction filed by the respondent (plaintiff) against the appellant (defendant). The Trial Court decreed the suit ex parte on 09.10.2014. The appellant filed an application under Order 9 Rule 13 CPC on 02.12.2015 to set aside the ex parte decree, along with an application for condonation of delay. The Trial Court allowed the application, but the High Court in revision under Section 115 CPC set aside the Trial Court's order. The Supreme Court noted that the original summons was served on the appellant's mother on 17.12.2013, but the appellant claimed he only came to know of the suit in June 2014. The Trial Court had recorded that the appellant filed an application to engage an advocate on 02.07.2014, but the suit was declared ex parte. The case was transferred to another court without notice to the appellant. The appellant contended that the property was residential and the transaction was a loan, and he was willing to deposit the amount spent by the respondent for execution of the sale deed. The respondent argued that ample opportunity was given and the sale deed had already been executed in her favour. The Supreme Court held that litigation should be adjudicated on merits and not terminated by default. It allowed the appeal subject to conditions: the appellant must deposit Rs.67,400 (stamp duty and registration expenses) and Rs.50,000 as costs within one month, upon which the sale deed would stand set aside and the respondent could withdraw the amounts. If the conditions are not met, the appeal would stand dismissed. The Trial Court was directed to dispose of the suit within six months of compliance.
Headnote
A) Civil Procedure - Ex Parte Decree - Setting Aside - Order 9 Rule 13 CPC - The Trial Court allowed the application to set aside ex parte decree, but the High Court reversed it in revision under Section 115 CPC - The Supreme Court held that litigation should be adjudicated on merits and not terminated by default, and allowed the appeal subject to conditions including deposit of stamp duty and costs (Paras 8-13). B) Specific Performance - Discretionary Relief - Opportunity to Contest - The appellant contended that the transaction was a loan and the property was residential - The Supreme Court, considering the discretionary nature of specific relief, granted opportunity to contest subject to deposit of amounts spent by the respondent for execution of sale deed (Paras 5, 13).
Issue of Consideration
Whether the High Court was justified in setting aside the Trial Court's order allowing the application under Order 9 Rule 13 CPC to set aside an ex parte decree in a suit for specific performance.
Final Decision
Appeal allowed; impugned order set aside subject to conditions: appellant to deposit Rs.67,400 (stamp duty and registration) and Rs.50,000 as costs within one month; upon deposit, sale deed set aside and respondent can withdraw amounts; if not deposited, appeal dismissed; Trial Court to dispose of suit within six months of compliance.
Law Points
- Order 9 Rule 13 CPC
- Section 115 CPC
- Ex parte decree
- Condonation of delay
- Specific performance
- Discretionary relief
