Case Note & Summary
The case involves two writ petitions filed under Article 227 of the Constitution of India challenging an ex parte judgment and decree dated 30.09.2023 passed by the Senior Civil Judge and JMFC, Babaleshwar, in O.S. No. 56/2022. The petitioners are the legal representatives of the original defendant Sangappa Hadimani, who died during the pendency of the suit. The suit was filed by respondent No.1 (Sharnappa) seeking partition and separate possession of suit properties. The trial court decreed the suit ex parte on the ground that the defendants failed to appear despite service of summons. The petitioners contended that the summons were not properly served and that the trial court mechanically dispensed with service without recording reasons. The High Court found that the trial court's order dated 19.12.2022 dispensing with service of summons was passed without following the procedure under Order V Rule 19 CPC, as the court did not record its satisfaction regarding the service of summons. The court also noted that the trial court did not issue fresh summons after the death of the original defendant. Consequently, the High Court set aside the ex parte judgment and decree and remanded the matter to the trial court for fresh disposal, directing the parties to appear on 15.04.2024. The court emphasized that the trial court should afford an opportunity to the defendants to file their written statement and proceed in accordance with law.
Headnote
A) Civil Procedure - Ex Parte Decree - Setting Aside - Sufficient Cause - Order IX Rule 13, Code of Civil Procedure, 1908 - The court considered whether the trial court erred in passing an ex parte decree without proper service of summons and without recording reasons for dispensing with service. Held that the trial court failed to follow the procedure under Order V Rule 19 CPC and did not record satisfaction regarding service, thus the ex parte decree was liable to be set aside. (Paras 10-15) B) Civil Procedure - Service of Summons - Procedure - Order V Rule 12, Order V Rule 19, Code of Civil Procedure, 1908 - The court examined the requirement of proper service of summons and the necessity of recording reasons for deemed service. Held that the trial court's order dispensing with service was mechanical and without application of mind, rendering the ex parte decree unsustainable. (Paras 12-14) C) Constitutional Law - Writ Jurisdiction - Article 227, Constitution of India - The court exercised its supervisory jurisdiction to correct procedural irregularities in the trial court. Held that the writ petition was maintainable to quash the ex parte decree and remand the matter for fresh disposal. (Paras 1, 16)
Issue of Consideration
Whether the trial court was justified in passing an ex parte decree without ensuring proper service of summons and without recording reasons for dispensing with service, and whether the petitioners have made out sufficient cause for setting aside the ex parte decree.
Final Decision
The High Court allowed the writ petitions, set aside the ex parte judgment and decree dated 30.09.2023 passed in O.S. No. 56/2022, and remanded the matter to the trial court for fresh disposal. The parties were directed to appear before the trial court on 15.04.2024. The trial court was directed to afford an opportunity to the defendants to file their written statement and proceed in accordance with law.
Law Points
- Ex parte decree
- setting aside ex parte decree
- sufficient cause
- service of summons
- Order IX Rule 13 CPC
- Order V Rule 12 CPC
- Order V Rule 19 CPC
- Article 227 Constitution of India
- procedural irregularity
- opportunity of hearing
