Case Note & Summary
The petitioner, Dr. Sujitnath Banerjee, filed a suit for recovery of Rs.2,32,62,249/- against the respondents. The defendants were served but failed to file a written statement, leading to an ex parte order. The defendants then filed an application under Order 9 Rule 7 of the CPC to set aside the ex parte order, which was allowed by the trial court on condition of paying Rs.5,000/- costs. The petitioner challenged this order by way of a writ petition under Articles 226 and 227 of the Constitution. The High Court held that the trial court had discretion to set aside the ex parte order if sufficient cause was shown, and the order was not perverse. The writ petition was dismissed, and the defendants were directed to file their written statement within four weeks.
Headnote
A) Civil Procedure - Ex Parte Decree - Setting Aside - Order 9 Rule 7 of Code of Civil Procedure, 1908 - The trial court allowed the application of the defendants to set aside the ex parte order and permitted them to file written statement on payment of costs of Rs.5,000/-. The High Court upheld the order, holding that the court has discretion to set aside ex parte proceedings if sufficient cause is shown, and the order was not perverse or illegal. (Paras 1-10)
B) Writ Jurisdiction - Interference with Interlocutory Orders - Articles 226 and 227 of Constitution of India - The High Court declined to interfere with the trial court's order, as it was a discretionary order and no jurisdictional error was shown. The writ petition was dismissed. (Paras 11-15)
Issue of Consideration
Whether the trial court was justified in setting aside the ex parte order and granting opportunity to file written statement, and whether the writ petition challenging such order is maintainable.
Final Decision
Writ petition dismissed. The trial court's order setting aside the ex parte proceedings and permitting the defendants to file written statement on payment of costs of Rs.5,000/- is upheld. Defendants to file written statement within four weeks.
Law Points
- Ex parte decree can be set aside under Order 9 Rule 7 CPC if sufficient cause is shown
- Court has discretion to impose costs
- No absolute bar to setting aside ex parte order if defendant appears and shows cause
Case Details
2015 LawText (BOM) (04) 137
WRIT PETITION NO.2579 OF 2014
R. L. Khapre, A. J. Bhoot for petitioner; M. P. Khajanchi for respondents
Dr. Sujitnath S/o Sudhanshukumar Banerjee
Smt. Opadma Wd/o Motilal Kotecha & Ors.
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Nature of Litigation
Civil suit for recovery of money
Remedy Sought
Petitioner sought to challenge the order setting aside ex parte proceedings and allowing defendants to file written statement
Filing Reason
Trial court allowed defendants' application to set aside ex parte order and permitted filing of written statement on payment of costs
Previous Decisions
Trial court passed ex parte order against defendants for failure to file written statement; later set aside that order on application
Issues
Whether the trial court was justified in setting aside the ex parte order and granting opportunity to file written statement
Whether the High Court should interfere with the discretionary order under Articles 226 and 227
Submissions/Arguments
Petitioner argued that the trial court erred in setting aside the ex parte order without sufficient cause
Respondents contended that the trial court exercised its discretion properly and the order was not perverse
Ratio Decidendi
The trial court has discretion under Order 9 Rule 7 CPC to set aside ex parte proceedings if sufficient cause is shown. The High Court, in exercise of writ jurisdiction, will not interfere with such discretionary orders unless there is perversity or jurisdictional error.
Judgment Excerpts
This writ petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 28-2-2014 passed by the trial Court allowing the application moved by the present respondents for setting aside the ex parte order passed against them in Special Civil Suit No.674/2008 and granting them opportunity to file their written statement.
The trial Court, therefore, passed an ex parte order against the defendants. The defendants then filed an application under Order 9 Rule 7 of the CPC to set aside the ex parte order, which was allowed on condition of paying Rs.5,000/- costs.
Procedural History
Petitioner filed Special Civil Suit No.674/2008 for recovery. Defendants served but failed to file written statement. Trial court passed ex parte order. Defendants filed application under Order 9 Rule 7 CPC. Trial court allowed application on 28-2-2014. Petitioner filed writ petition on 2-5-2014. High Court heard on 24-2-2015 and pronounced judgment on 7-4-2015.
Acts & Sections
- Code of Civil Procedure, 1908: Order 9 Rule 7
- Constitution of India: Articles 226, 227
