Case Note & Summary
The petitioner, Nagireddy, filed a writ petition under Article 227 of the Constitution of India challenging an order dated 09.10.2017 passed by the 31st Additional City Civil and Sessions Judge, Bengaluru, in Misc. Petition No.689/2016. The impugned order allowed the respondents' application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC), setting aside an ex-parte judgment and decree dated 30.06.2016 in O.S. No.8431/2015, which was a suit for permanent injunction filed by the petitioner. The petitioner/plaintiff had filed the suit to restrain the defendants from interfering with his peaceful possession of the suit schedule property. The defendants appeared through counsel but failed to file a written statement. The Trial Court, after recording the evidence of P.W.1 and examining documents Exs.P.1 to P.4, decreed the suit ex-parte. The defendants then filed Misc. Petition No.689/2016 under Order IX Rule 13 CPC to set aside the ex-parte decree, claiming that their counsel had withdrawn from the case without informing them. The Trial Court allowed the petition, setting aside the decree with costs of Rs.5,000/- and directing both parties to appear before the Trial Court. The petitioner challenged this order. The High Court examined the records and found that the defendants had engaged a counsel but did not file a written statement or appear on the date of hearing. The counsel's withdrawal, even if true, did not constitute sufficient cause for non-appearance, as the defendants were aware of the proceedings and failed to take any steps. The High Court held that the Trial Court's order was erroneous and without proper application of mind. Consequently, the writ petition was allowed, the impugned order was quashed, and the ex-parte decree was restored.
Headnote
A) Civil Procedure - Ex-parte Decree - Setting Aside - Order IX Rule 13 CPC - Sufficient Cause - The Trial Court set aside an ex-parte decree on the ground that the defendants' counsel withdrew without notice, but the defendants failed to show sufficient cause for their non-appearance. The High Court held that mere withdrawal of counsel without notice to the party does not constitute sufficient cause, especially when the defendants did not file written statement or take steps to contest the suit. The order was quashed and the ex-parte decree was restored. (Paras 1-10) B) Civil Procedure - Ex-parte Decree - Setting Aside - Order IX Rule 13 CPC - Burden of Proof - The burden lies on the applicant to prove sufficient cause for non-appearance. The defendants did not provide any evidence or explanation for their failure to appear or file written statement. The High Court held that the Trial Court erred in allowing the application without proper justification. (Paras 5-10)
Issue of Consideration
Whether the Trial Court was justified in setting aside the ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure, 1908, when the defendants failed to file written statement and did not appear despite having engaged a counsel.
Final Decision
The writ petition is allowed. The order dated 09.10.2017 passed by the 31st Additional City Civil and Sessions Judge, Bengaluru, in Misc. Petition No.689/2016 is quashed. The ex-parte judgment and decree dated 30.06.2016 in O.S. No.8431/2015 is restored.
Law Points
- Order IX Rule 13 CPC
- Sufficient cause
- Ex-parte decree
- Setting aside
- Restoration
- Civil Procedure Code
