Case Note & Summary
The appellant, M/s. Shakti Bioscience Ltd., filed an appeal against an ex parte judgment and decree dated 04.11.2015 passed by the City Civil Court, Mumbai, in a summary suit under Order 37 Rule 2 of the Code of Civil Procedure, 1908 (CPC), instituted by respondent No.1, M/s. Mody Chemi Pharma Pvt. Ltd. The appellant contended that the summons of the suit were not served on it at its addresses in Mumbai and Vapi, Gujarat. It only came to know about the ex parte decree when it received notice in execution proceedings. Consequently, the appellant filed a Notice of Motion No. 2342 of 2016 before the Trial Court under Order 37 Rule 4 CPC to set aside the ex parte decree. The Trial Court rejected the Notice of Motion on 11.08.2016, treating it as an application for review of the judgment and decree. Aggrieved, the appellant preferred the present appeal challenging both the ex parte decree and the order rejecting the Notice of Motion. The High Court admitted the appeal and, with consent of both parties, heard it finally at the admission stage. The court observed that the issue involved was very short: whether the Trial Court was justified in rejecting the Notice of Motion on the ground that it was a review application. The High Court noted that the appellant had specifically pleaded that summons were not served, and the Trial Court ought to have considered the application on its merits under Order 37 Rule 4 CPC, which allows setting aside an ex parte decree if the defendant shows good cause. The court found that the appellant had made out a prima facie case of non-service of summons, and therefore, the ex parte decree and the impugned order were liable to be set aside. The High Court allowed the appeal, set aside the ex parte judgment and decree dated 04.11.2015 and the order dated 11.08.2016, and restored the summary suit to the file of the Trial Court for fresh hearing and disposal in accordance with law. The court directed the Trial Court to give an opportunity to the appellant to file its written statement and proceed with the suit. The connected civil applications were also disposed of.
Headnote
A) Civil Procedure - Summary Suit - Setting Aside Ex Parte Decree - Order 37 Rule 4 CPC - The appellant contended that summons were not served on it at its addresses in Mumbai and Vapi, and it only came to know of the ex parte decree upon receiving notice in execution proceedings. The Trial Court rejected the Notice of Motion under Order 37 Rule 4 CPC treating it as a review application. The High Court held that the Trial Court erred in doing so and that the application ought to have been considered on merits, as the appellant had made out a prima facie case of non-service. (Paras 1-9) B) Civil Procedure - Service of Summons - Summary Suit - Order 37 Rule 2 CPC - In a summary suit, proper service of summons is a prerequisite for passing an ex parte decree. If the defendant shows that summons were not served, the ex parte decree is liable to be set aside. The High Court found that the appellant had raised a genuine issue regarding non-service, and therefore, the ex parte decree dated 04.11.2015 and the order dated 11.08.2016 were set aside, and the suit was restored to the file of the Trial Court for fresh hearing. (Paras 3-9)
Issue of Consideration
Whether the Trial Court was justified in rejecting the appellant's Notice of Motion under Order 37 Rule 4 CPC for setting aside the ex parte decree on the ground that it was filed as a review application, without considering the appellant's contention that summons were not served.
Final Decision
The High Court allowed the appeal, set aside the ex parte judgment and decree dated 04.11.2015 and the order dated 11.08.2016, and restored the summary suit to the file of the Trial Court for fresh hearing and disposal in accordance with law. The Trial Court was directed to give an opportunity to the appellant to file its written statement and proceed with the suit. Connected civil applications were disposed of.
Law Points
- Order 37 Rule 4 CPC
- Order 37 Rule 2 CPC
- Service of summons
- Ex parte decree
- Setting aside ex parte decree
- Summary suit
