Case Note & Summary
The appellant, Shri K. Raja, filed a Miscellaneous First Appeal under Order 43 Rule 1(d) of the Code of Civil Procedure, 1908 (CPC) against an order dated 28.08.2024 passed by the XXVI Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru (CCH-20) in Misc.No.25012/2022. The trial court had rejected the appellant's petition filed under Order 9 Rule 13 read with Section 151 CPC seeking to set aside an ex-parte decree passed in O.S.No.25432/2015. The suit was filed by the respondent, V. Prabhakar, for recovery of a sum of Rs.8,80,000/- from the appellant. The trial court had issued summons to the appellant, which were returned unserved at the first instance. Subsequently, summons were ordered through RPAD and returned with an endorsement 'defendant is not in station'. Thereafter, the respondent filed an application under Order 5 Rule 20 CPC seeking paper publication, which was allowed. The suit proceeded ex-parte and a decree was passed against the appellant. The appellant filed an application under Order 9 Rule 13 CPC to set aside the ex-parte decree, contending that he had no knowledge of the suit proceedings and that the summons were not served properly. The trial court rejected the application, observing that the appellant had knowledge of the proceedings. The High Court heard the appeal and considered the submissions of both sides. The appellant's counsel argued that the appellant was not aware of the suit and that the paper publication was not brought to his notice. The respondent's counsel opposed the appeal, stating that the appellant had knowledge. The High Court examined the facts and found that the summons were returned unserved and the paper publication was not proved to have come to the appellant's notice. The court held that the appellant had made out a sufficient cause for his non-appearance and that the trial court had erred in rejecting the application. The High Court allowed the appeal, set aside the order of the trial court, and restored the suit to its original file, subject to payment of costs of Rs.1,000/- to the respondent.
Headnote
A) Civil Procedure Code - Setting Aside Ex-Parte Decree - Order 9 Rule 13 r/w Section 151 CPC - Sufficient Cause - The appellant contended that summons were not served properly and he had no knowledge of the suit proceedings. The trial court rejected the application on the ground that the appellant had knowledge. The High Court held that the appellant had made out a sufficient cause as the summons were returned unserved and the paper publication was not proved to have come to his notice. The appeal was allowed and the ex-parte decree was set aside subject to payment of costs. (Paras 2-6) B) Civil Procedure Code - Service of Summons - Order 5 Rule 20 CPC - Paper Publication - The trial court had ordered paper publication after summons were returned unserved. The High Court noted that the appellant denied knowledge of the publication and the respondent failed to prove that the appellant had actual knowledge. The court held that mere paper publication without proof of knowledge is not sufficient to deny relief under Order 9 Rule 13 CPC. (Paras 3-5)
Issue of Consideration
Whether the trial court was justified in rejecting the application under Order 9 Rule 13 read with Section 151 CPC for setting aside the ex-parte decree on the ground that the appellant had knowledge of the proceedings and failed to appear.
Final Decision
The High Court allowed the appeal, set aside the order dated 28.08.2024 in Misc.No.25012/2022, and restored O.S.No.25432/2015 to the file of the trial court. The appellant was directed to pay costs of Rs.1,000/- to the respondent within two weeks.
Law Points
- Order 9 Rule 13 CPC
- Section 151 CPC
- Order 5 Rule 20 CPC
- Sufficient cause for setting aside ex-parte decree
- Service of summons
- Paper publication
- Restoration of suit
