Case Note & Summary
The petitioners (plaintiffs) filed Special Civil Suit 1260/2008 seeking specific performance of an agreement dated 17.04.2007. The suit summons was duly served on the respondent (defendant), but the defendant did not appear, and an ex parte decree was passed on 14.03.2012. The defendant then filed an application under Order IX Rule 13 CPC to set aside the ex parte decree, alleging that after receiving the summons, he contacted the plaintiffs who assured him they would not prosecute the suit if an additional agreement was executed. The defendant claimed that a supplementary agreement dated 14.01.2009 was executed, which the plaintiffs suppressed from the court. The plaintiffs denied the supplementary agreement and opposed the application. The trial court (Civil Judge, Senior Division, Nagpur) allowed the application and set aside the ex parte decree by judgment dated 24.04.2017 in M.J.C. 225/2014. The plaintiffs challenged this order in the High Court. The High Court heard both sides and noted that the trial court had considered the material on record and found that the defendant had made out a case of fraud and suppression. The High Court held that the trial court's order was not perverse or arbitrary and did not warrant interference. The writ petition was dismissed, and the ex parte decree remained set aside.
Headnote
A) Civil Procedure - Ex parte Decree - Setting Aside - Order IX Rule 13 CPC - Fraud - The defendant contended that after service of summons, the plaintiffs assured not to prosecute the suit if a supplementary agreement was executed, and that the plaintiffs suppressed that agreement and obtained an ex parte decree. The trial court set aside the ex parte decree. The High Court upheld the order, noting that the trial court had considered the material and that the defendant had made out a case of fraud and suppression. (Paras 3-9)
Issue of Consideration
Whether the trial court erred in setting aside the ex parte decree under Order IX Rule 13 CPC on the ground of fraud and suppression of a supplementary agreement.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order setting aside the ex parte decree. The court found no perversity or arbitrariness in the trial court's decision.
Law Points
- Order IX Rule 13 CPC
- Ex parte decree set aside
- Fraud
- Suppression of agreement
- Sufficient cause for non-appearance
Case Details
2018 LawText (BOM) (11) 76
Writ Petition No.4764 of 2017
Shri R.T. Anthony for Petitioners, Shri Amol D. Patil for Respondent
Shri Pravin Mulchand Johare and Shahjahan Badshah s/o Haji Abdul Quddoos
Shri Kishorilal s/o Kaluram Yadav
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Nature of Litigation
Writ petition challenging the order setting aside ex parte decree in a suit for specific performance.
Remedy Sought
Petitioners sought to quash the order dated 24.04.2017 passed by the Civil Judge, Senior Division, Nagpur in M.J.C. 225/2014, which set aside the ex parte decree.
Filing Reason
The petitioners (plaintiffs) claimed that the trial court erred in setting aside the ex parte decree on the ground of fraud and suppression of a supplementary agreement.
Previous Decisions
The trial court had passed an ex parte decree on 14.03.2012 in Special Civil Suit 1260/2008. The defendant's application under Order IX Rule 13 CPC was allowed on 24.04.2017, setting aside the ex parte decree.
Issues
Whether the trial court's order setting aside the ex parte decree under Order IX Rule 13 CPC was perverse or arbitrary.
Whether the defendant had made out a sufficient cause for non-appearance, including allegations of fraud and suppression.
Submissions/Arguments
Petitioners argued that the trial court erred in setting aside the ex parte decree as the defendant had no sufficient cause for non-appearance.
Respondent contended that the plaintiffs assured not to prosecute the suit and suppressed the supplementary agreement, constituting fraud.
Ratio Decidendi
The trial court's order setting aside an ex parte decree under Order IX Rule 13 CPC should not be interfered with in writ jurisdiction unless it is perverse or arbitrary. The trial court had considered the material and found that the defendant had made out a case of fraud and suppression, which constituted sufficient cause for non-appearance.
Judgment Excerpts
The petitioners are calling in question the judgment dated 24.04.2017 rendered by the Civil Judge, Senior Division, Nagpur in M.J.C. 225/2014, by and under which, the ex parte judgment and decree dated 14.03.2012 in Special Civil Suit 1260/2008 is set aside.
The defendant contended that after the receipt of the suit summons he contacted the plaintiffs. The plaintiffs assured the defendant not to prosecute the suit if an additional agreement is executed.
The plaintiffs have rebutted every material averment in the application under Order IX, Rule 13 of the Code.
Procedural History
The petitioners filed Special Civil Suit 1260/2008 for specific performance. Summons was served on the defendant, who did not appear, leading to an ex parte decree on 14.03.2012. The defendant filed M.J.C. 225/2014 under Order IX Rule 13 CPC to set aside the decree, which was allowed on 24.04.2017. The petitioners challenged this order in the High Court by filing Writ Petition No.4764 of 2017, which was dismissed on 01.11.2018.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order IX, Rule 13
