Case Note & Summary
This civil revision application under Section 115 of the Code of Civil Procedure, 1908 arose from an order of the City Civil Court, Greater Mumbai, which had set aside an ex-parte judgment and decree in a suit for specific performance. The petitioner (original plaintiff) had filed Suit No.3877 of 2008 against the respondent (original defendant) for specific performance of a Memorandum of Understanding and possession of premises. The defendant appeared and filed a written statement, but subsequently neither he nor his advocate appeared at hearing. On 8 March 2013, the trial court decreed the suit ex-parte after considering the merits. The plaintiff then took execution proceedings, resulting in a sale deed on 28 November 2014 and transfer of share certificate on 4 December 2015. The plaintiff incurred expenses of approximately Rs.45 lakhs. In 2015, the defendant filed Notice of Motion No.617 of 2015 seeking condonation of delay and setting aside of the decree, alleging illness and shifting of residence to Karnataka, and blaming his advocate for not informing him. The trial court allowed the motion on 27 October 2017 subject to costs of Rs.19,530. Aggrieved, the plaintiff filed the present revision. The High Court considered whether sufficient cause was shown under Order 9 Rule 13 CPC. It noted that the defendant had appeared and filed a written statement, so the decree was not purely ex-parte. The plaintiff had sent notices to the defendant and his advocate; the advocate endorsed that defendant was not contacting him and requested direct service. Despite notice by RPAD to the defendant's given address, it was returned 'unclaimed'. The court held that the defendant failed to prove his alleged illness or change of residence, and crucially, he did not inform his advocate or the court of any change of address. The court emphasized that a litigant has a duty to update his address and cannot blame the advocate for his own negligence. The trial court's order was set aside, the revision allowed, and the ex-parte decree restored, effectively dismissing the defendant's application. The court underscored that the defendant's lack of diligence disentitled him to any relief.
Headnote
A) Civil Procedure - Setting Aside Ex-Parte Decree - Sufficient Cause under Order 9 Rule 13 CPC - Court considered whether defendant had shown sufficient cause for absence to warrant setting aside - Held that mere allegation of illness and shifting residence without evidence, and failure to inform court or advocate of change, does not constitute sufficient cause; litigant must be diligent (Paras 16-21).
B) Civil Procedure - Duty of Litigant - Obligation to Inform Change of Address - Litigant has duty to inform court or advocate of any change in address; failure results in consequences - Defendant who gave Mumbai address and allegedly moved to Karnataka in 2007 did not update court or advocate, thus not entitled to indulgence (Paras 20-21).
C) Civil Procedure - Ex-Parte Decree - Defendant's Appearance and Written Statement - Suit not strictly ex-parte as defendant appeared and filed written statement; absence at hearing due to own negligence not sufficient for setting aside decree - Plaintiff served notices on defendant and his advocate but defendant remained absent (Paras 10, 17-19).
Issue of Consideration
Whether the trial court erred in setting aside the ex-parte decree on the grounds alleged by the defendant, particularly in light of the defendant's failure to inform his advocate of change of address and his lack of diligence.
Final Decision
Revision Application allowed. The impugned order dated 27 October 2017 passed by the City Civil Court, Greater Mumbai, is set aside. The Notice of Motion No.617 of 2015 filed by the respondent for setting aside the ex-parte judgment and decree stands dismissed. The ex-parte judgment and decree dated 8 March 2013 are restored.
Law Points
- Order 9 Rule 13 CPC requires sufficient cause for setting aside ex-parte decree
- litigant has duty to inform court/advocate of change of address
- blame on advocate not sufficient when litigant himself negligent
- decree not ex-parte if defendant appeared and filed written statement but absent at hearing despite notice
Case Details
2018 LawText (BOM) (02) 65
Civil Revision Application No.12 of 2018
Dr. Shalini Phansalkar-Joshi
Mehul A. Shah, Pooja Joshi, Ashok M. Saraogi
Abdul Hameed Abdul Gani Shaikh
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Nature of Litigation
Civil revision challenging order allowing application to set aside ex-parte judgment and decree in a specific performance suit.
Remedy Sought
Petitioner sought to set aside the trial court's order dated 27 October 2017 that condoned delay and set aside the ex-parte decree.
Filing Reason
The trial court allowed the defendant's application without sufficient cause, despite the defendant's lack of diligence and failure to inform his advocate of change of address.
Previous Decisions
The City Civil Court, Greater Mumbai, by order dated 27 October 2017, allowed Notice of Motion No.617 of 2015, setting aside the ex-parte judgment and decree dated 8 March 2013 in Suit No.3877 of 2008.
Issues
Whether the trial court erred in allowing the application to set aside the ex-parte decree under Order 9 Rule 13 CPC when the defendant failed to show sufficient cause for his absence?
Whether the defendant's alleged illness and change of residence, without informing his advocate or the court, constituted sufficient cause for condoning delay and setting aside the decree?
Submissions/Arguments
Petitioner contended that the decree was not truly ex-parte because the defendant had appeared and filed a written statement; notice of hearing was duly served on the defendant and his advocate; the defendant remained absent without sufficient reason; the defendant did not inform his advocate or court of any change of address; blame on the advocate was a mere excuse; the trial court's order caused prejudice after execution of sale deed and incurring of expenses.
Respondent contended that his advocate was negligent and did not inform him of the hearing; he was ill and had shifted to Karnataka for family reasons; he came to know of the decree only on 18 December 2014; the trial court rightly condoned the delay and compensated the plaintiff with costs.
Ratio Decidendi
A litigant who fails to inform his advocate or the court about a change of address and remains absent at the hearing of the suit, despite notice, cannot seek setting aside of the ex-parte decree by blaming the advocate's negligence; such a litigant is not entitled to the discretionary relief under Order 9 Rule 13 CPC as he has not shown sufficient cause. Additionally, a decree cannot be considered purely ex-parte when the defendant had participated and filed a written statement, and the plaintiff had taken steps to serve notice of hearing.
Judgment Excerpts
The very object of filing, 'Memo of Address' in the Court is that when necessity arises to contact party to litigation, the party can be contacted on the said address. Therefore, for a litigant who is diligent, it is important duty and obligation to inform at least to his advocate or to the Court about the change of his address. (Para 20)
In these premises, Respondent cannot be entitled for indulgence from the Court by merely blaming his advocate, when he himself was not diligent. (Para 22)
Thus it can be seen that the petitioner-plaintiff has taken every effort to serve the respondent about the date of hearing, even though it was not necessary as respondent has already appeared in the suit, engaged advocate, filed written statement, but conveniently remained absent when the suit came up for hearing. (Para 19)
Procedural History
Suit No.3877 of 2008 (later High Court Suit No.1467 of 2008) was filed by the petitioner against the respondent for specific performance of a Memorandum of Understanding and possession. The respondent appeared and filed a written statement. On 8 March 2013, the suit was decreed ex-parte by the City Civil Court after the respondent and his advocate remained absent. The petitioner filed execution proceedings and a sale deed was executed on 28 November 2014; the share certificate was transferred on 4 December 2015. The respondent filed Notice of Motion No.617 of 2015 seeking condonation of delay and setting aside of the ex-parte decree. By order dated 27 October 2017, the trial court allowed the motion subject to costs of Rs.19,530. The petitioner then filed the present Civil Revision Application No.12 of 2018 before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Section 115
