Case Note & Summary
The appellant-defendant, Sri M. Nagesh Suvarna, as Managing Trustee of Sri Koradabbu Daivasthana, filed a Regular Second Appeal under Section 100 read with Order XLII Rule 1 of the Code of Civil Procedure, 1908, against the judgment and decree dated 18.03.2013 passed in R.A.No.78/2010 by the II Additional Senior Civil Judge, Mangalore. That appeal had dismissed the appellant's appeal and confirmed the order dated 07.06.2010 in Misc. Case No.5/2008 passed by the II Additional Civil Judge, Mangalore, which dismissed the appellant's petition under Order IX Rule 13 read with Section 151 CPC seeking to set aside an ex-parte decree. The respondent-plaintiff, Sri Narayana, had originally filed O.S.No.230/2006 against the appellant-defendant seeking a declaration that the defendant had no right to trespass, encroach, or interfere with the plaintiff's possession of the suit schedule property, a permanent injunction restraining the defendant from trespassing or constructing on the property, and a direction to remove earth and concrete pillars dumped on the property. The suit was decreed ex-parte. The appellant then filed the misc. petition to set aside the ex-parte decree, which was dismissed by the trial court. The first appellate court dismissed the appeal, confirming the trial court's order. In the second appeal, the High Court considered whether the appellant had shown sufficient cause for his non-appearance. The appellant argued that he was not aware of the suit proceedings and that the summons were not properly served. However, the courts below found that the appellant had been served and had failed to appear without sufficient cause. The High Court, after hearing the appellant's counsel, found no substantial question of law involved and dismissed the appeal at the admission stage, upholding the concurrent findings of the lower courts.
Headnote
A) Civil Procedure - Setting Aside Ex-parte Decree - Sufficient Cause - Order IX Rule 13 read with Section 151 CPC - The appellant-defendant failed to appear in the suit and an ex-parte decree was passed. The application to set aside the ex-parte decree was dismissed by the trial court and confirmed by the first appellate court. The High Court held that the appellant did not prove 'sufficient cause' for his absence, as the reasons given were not convincing. The second appeal was dismissed as no substantial question of law arose. (Paras 1-5) B) Civil Procedure - Regular Second Appeal - Substantial Question of Law - Section 100 CPC - The High Court found that the concurrent findings of fact by the courts below did not give rise to any substantial question of law. The appeal was dismissed at the admission stage. (Paras 1-5)
Issue of Consideration
Whether the appellant-defendant had sufficient cause for his non-appearance when the suit was decreed ex-parte, and whether the lower appellate court was justified in dismissing the appeal confirming the rejection of the application under Order IX Rule 13 CPC.
Final Decision
The Regular Second Appeal is dismissed at the admission stage. No order as to costs.
Law Points
- Sufficient cause for setting aside ex-parte decree
- Order IX Rule 13 CPC
- Section 151 CPC
- Regular Second Appeal under Section 100 CPC
