Case Note & Summary
The appellants, who were defendants 1 to 6 in the original suit, filed this appeal under Section 96 read with Order 41 Rule 1 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 30.04.2015 passed by the II Additional Senior Civil Judge at Kalaburagi in O.S. No.68/2013. The suit was filed by the respondents/plaintiffs for partition and separate possession of the suit properties. The trial court decreed the suit ex-parte against the appellants. The appellants contended that they were not served with summons and had no knowledge of the proceedings, and thus were denied an opportunity to defend. The High Court examined the records and found that the trial court had not recorded its satisfaction regarding service of summons on defendants 1 to 6. The court noted that the service was not proper and the appellants were not given a fair opportunity to present their case. Consequently, the High Court allowed the appeal, set aside the ex-parte judgment and decree, and remanded the matter to the trial court with a direction to afford the appellants an opportunity to file a written statement and lead evidence, and then dispose of the suit afresh in accordance with law. The court also directed the parties to appear before the trial court on a specified date.
Headnote
A) Civil Procedure - Ex-parte Decree - Service of Summons - Section 96, Order 41 Rule 1 CPC - The appellants/defendants challenged the ex-parte decree on the ground that they were not served with summons and had no opportunity to defend. The High Court found that the trial court had not recorded satisfaction regarding service on defendants 1 to 6, and the service was not proper. Held that the ex-parte decree was liable to be set aside and the matter remanded for fresh disposal after giving opportunity to the defendants to file written statement and lead evidence. (Paras 1-10) B) Civil Procedure - Remand - Opportunity of Hearing - Order 41 Rule 23 CPC - The High Court, in exercise of its appellate powers, set aside the judgment and decree and remanded the matter to the trial court with a direction to afford an opportunity to the appellants/defendants to file written statement and lead evidence, and then dispose of the suit afresh in accordance with law. (Paras 10-12)
Issue of Consideration
Whether the trial court was justified in passing an ex-parte decree without ensuring proper service of summons on the defendants, thereby violating principles of natural justice.
Final Decision
The appeal is allowed. The judgment and decree dated 30.04.2015 passed in O.S. No.68/2013 by the II Additional Senior Civil Judge at Kalaburagi is set aside. The matter is remanded to the trial court with a direction to afford an opportunity to the appellants/defendants to file written statement and lead evidence, and then dispose of the suit afresh in accordance with law. The parties are directed to appear before the trial court on 15.04.2024.
Law Points
- Order 41 Rule 1 CPC
- Section 96 CPC
- Service of summons
- Ex-parte decree
- Remand
- Opportunity of hearing
