Case Note & Summary
The case involves a Notice of Motion filed by Defendants Nos. 2 to 4 under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) to recall an ex parte decree passed on 7th March 2014. The plaintiff, Madhu Sushil Gupta, had filed a suit against the defendants, including Gaurang Doshi and others, seeking certain reliefs. The ex parte decree was passed after the defendants failed to appear. Subsequently, the defendants filed this application, which was initially allowed by KR Shriram J on the ground that the writ of summons was not properly served, as the packets were returned with the remark 'unclaimed'. However, the Division Bench in appeal observed that the question of delay had not been considered and remanded the matter for fresh hearing. The court noted that there was a delay of 150 days in filing the application. The plaintiff argued that the delay was unexplained. However, the court found a more fundamental reason to recall the decree: non-compliance with the Bombay High Court (Original Side) Rules, particularly Rule 90 regarding service of summons. The court held that the service was not proper and therefore the decree must be recalled. The delay was condoned, and the defendants were directed to pay costs of Rs. 25,000 to the plaintiff within four weeks. The suit was restored to the board for further proceedings.
Headnote
A) Civil Procedure - Ex Parte Decree - Recall - Order IX Rule 13 CPC - Service of Summons - The court considered whether an ex parte decree should be recalled when the service of summons was not in accordance with the Bombay High Court (Original Side) Rules, specifically Rule 90. The court held that the decree must be recalled as the service was not proper, and the delay in filing the application was condoned in the interest of justice. (Paras 1-5) B) Civil Procedure - Condonation of Delay - Order IX Rule 13 CPC - The court condoned the delay of 150 days in filing the application for recall, noting that the defendants had a valid defense and the plaintiff could be compensated by costs. (Para 3)
Issue of Consideration
Whether an ex parte decree should be recalled under Order IX Rule 13 CPC when the service of summons was not in compliance with the Bombay High Court (Original Side) Rules, and whether the delay in filing the application should be condoned.
Final Decision
The court allowed the Notice of Motion, recalled the ex parte decree, condoned the delay, and directed the defendants to pay costs of Rs. 25,000 to the plaintiff within four weeks. The suit was restored to the board for further proceedings.
Law Points
- Order IX Rule 13 CPC
- Bombay High Court (Original Side) Rules Rule 90
- Service of summons
- Ex parte decree recall
- Condonation of delay
