Case Note & Summary
The present civil revision application challenges the order dated 26.04.2016 passed by the 4th Joint Civil Judge, Senior Division, Nagpur in Summary Civil Suit No.178/2010, whereby the trial court rejected the application filed by the petitioners (defendants) to set aside the ex parte decree passed against them on 25.04.2013. The respondents (plaintiffs) had filed the summary suit for recovery of an amount. The petitioners were served with notice and engaged a counsel who filed an application for leave to defend. However, the counsel allegedly did not pursue the matter diligently and failed to inform the petitioners about the progress, resulting in an ex parte decree. The petitioners then filed M.J.C. No.90/2014 for setting aside the decree. The respondents opposed the application, arguing that the petitioners were literate and had knowledge of court proceedings but remained absent, attempting to shift blame to their counsel. The trial court, after considering evidence, rejected the application. The High Court, in revision, examined whether the negligence of the counsel constitutes sufficient cause under Order IX Rule 13 CPC. The court held that the negligence of the advocate is a sufficient cause for setting aside an ex parte decree, as parties should not suffer due to the fault of their counsel. The court emphasized a liberal approach to ensure that matters are decided on merits. Consequently, the High Court allowed the revision, set aside the trial court's order, and set aside the ex parte decree, granting leave to defend subject to the petitioners depositing the decretal amount within a specified period.
Headnote
A) Civil Procedure - Setting Aside Ex Parte Decree - Sufficient Cause - Negligence of Counsel - Order IX Rule 13, Order XXXVII Code of Civil Procedure, 1908 - The petitioners filed an application to set aside an ex parte decree in a summary suit, contending that their counsel failed to diligently pursue the matter and did not inform them of the proceedings. The trial court rejected the application. The High Court held that the negligence of the counsel constitutes sufficient cause for setting aside the ex parte decree, as parties should not suffer for the fault of their advocate. The court emphasized a liberal approach in such matters to ensure justice. (Paras 1-10) B) Civil Procedure - Summary Suit - Leave to Defend - Order XXXVII Code of Civil Procedure, 1908 - The petitioners had filed an application for leave to defend the summary suit, but due to their counsel's negligence, the matter proceeded ex parte and a decree was passed. The High Court noted that the petitioners had a prima facie defence and were entitled to contest the suit on merits. The court set aside the ex parte decree and granted leave to defend, subject to deposit of the decretal amount. (Paras 2-10)
Issue of Consideration
Whether the negligence of the counsel constitutes sufficient cause for setting aside an ex parte decree passed in a summary suit under Order XXXVII of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the civil revision application, set aside the order dated 26.04.2016 passed by the trial court, and set aside the ex parte decree dated 25.04.2013. The petitioners were granted leave to defend the suit subject to depositing the decretal amount within a specified period.
Law Points
- Sufficient cause for setting aside ex parte decree
- Negligence of counsel as sufficient cause
- Order IX Rule 13 CPC
- Order XXXVII CPC
- Summary suit procedure
- Liberal approach in setting aside ex parte decrees
