Case Note & Summary
The case arises from a civil revision application filed by the original defendant No.1, Balkrishna Zawar, challenging a common order dated 5 March 2012 passed by the Civil Judge, Senior Division (Corporation Court), Aurangabad, rejecting his applications (Exh51 and Exh55) under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (CPC) for setting aside an ex-parte decree. The applicant is the owner of plot No.12, CTS No.18151, situated in Friends Colony, Kokanwadi, Aurangabad. The respondent No.1, Azmat Khan, filed Special Civil Suit No.21 of 2011 against the applicant and the Municipal Corporation, Aurangabad (respondent No.2), seeking injunction and possession. The suit proceeded ex-parte against the applicant, and a decree was passed. The applicant filed applications to set aside the ex-parte decree, contending that he was not served and had no knowledge of the suit. The trial court rejected the applications, holding that the applicant was aware of the suit and had failed to appear without sufficient cause. The High Court, in revision, examined the trial court's order and found that the trial court had exercised its discretion judiciously. The court noted that the applicant had not shown any sufficient cause for his non-appearance. The High Court held that the scope of revision under Section 115 CPC is limited and that the impugned order did not suffer from any jurisdictional error or perversity. Consequently, the revision application was dismissed, affirming the trial court's order.
Headnote
A) Civil Procedure - Ex-Parte Decree - Setting Aside - Order 9 Rule 13, Code of Civil Procedure, 1908 - Sufficient Cause - The applicant-defendant failed to appear despite service and knowledge of the suit; the trial court rejected the application to set aside the ex-parte decree. The High Court held that the trial court's discretion was not perverse or erroneous, as the defendant did not demonstrate sufficient cause for non-appearance. (Paras 1-5) B) Civil Procedure - Revision - Scope - Section 115, Code of Civil Procedure, 1908 - Interference with Discretionary Order - The High Court in revision cannot interfere with a discretionary order unless it is shown to be perverse, capricious, or based on a wrong principle. The impugned order being a reasoned one, no interference was warranted. (Paras 4-5)
Issue of Consideration
Whether the trial court erred in rejecting the applications under Order 9 Rule 13 of the Code of Civil Procedure, 1908, for setting aside the ex-parte decree, and whether the revision against such rejection is maintainable.
Final Decision
The High Court dismissed the civil revision application, confirming the trial court's order rejecting the applications to set aside the ex-parte decree.
Law Points
- Order 9 Rule 13 CPC
- Sufficient cause for setting aside ex-parte decree
- Discretion of trial court
- Scope of revision under Section 115 CPC
