O. 9 - Punjab Law Reporter

Code of Civil Procedure, 1908 , Order 9 Rule 13, Order 9 Rule 6 (a) and Order 17 Rules 2 and 3 - Application for setting aside of the preliminary decree where the defendant was proceeded exparte at the stage of defendants evidence - Such de-cree was an "ex parte decree" within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13.

Plaintiff's evidence was recorded and his case was closed and defendants were placed ex parte on the date when the case was fixed for recording defendants' evidence but the same was not recorded due to the defendants' absence – Court proceeded ex parte against them and proceedings in the suit continued as ex parte against the defen-dants - Plaintiff got himself re-examined in the proceedings, however, was not re-cross examined - Trial Court passed a preliminary decree against the defendants – Application filed under Order 9 Rule 13 of the Code, for setting aside of the preliminary decree - Since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Order 17 Rule 3 (b) read with Order 17 Rule 2 of the Code for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order 9 of the Code or could have made any other order as it thinks fit - Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree - Such decree was an "ex parte decree" within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants. 2019 SCeJournal 398

CPC Order 9, Rule 13 – Ex-parte decree passed – Party has two options:

a. The first is to file an appeal

b. The second is to file an application under Order IX Rule 13

Defendant can take recourse to both the proceedings simultaneously - The right of appeal is not taken away by filing an application under Order IX Rule 13 - But if the appeal is dismissed as a result of which the ex-parte decree merges with the order of the Appellate Court, a petition under Order IX Rule 13 would not be maintainable - When an application under Order IX Rule 13 is dismissed, the remedy of the defendant is under Order XLIII Rule 1 - However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal under Section 96.

*SUPREME COURT*

(2018-4)192 *PUNJAB LAW REPORTER* 71

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EX PARTE ORDER – RIGHT TO PARTICIPATE

(2018-4) PUNJAB LAW REPORTER 320 (P&H)

CPC O. 9, R. 7 – Application for setting aside of ex parte order as also revision petition dismissed- Petitioner would still be entitled to participate in the proceedings from the stage at which the appearance was entered - He has the right to participate in the proceedings, to cross-examine and if necessary, to lead evidence in rebuttal.

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Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 2, 8, Order 19, Rule 4 - Suit of the petitioners was dismissed by the Court under Order 9 Rules 2 and 8 of the CPC - Order 9 Rule 2 of the CPC was invoked by the Court because of the failure on the part of the plaintiff to pay the process fee or postal charges due to which the summons could not be served upon the defendants and Order 9 Rule 8 was invoked because the plaintiff did not appear when the case was called for hearing - Predecessor-in-interest of the petitioners, however, filed the application only under Order 9 Rule 4 of the CPC which provides that where the suit is dismissed under Order 9 Rules 2 and 3 of the CPC, the plaintiff may apply for setting aside the order of dismissal but here not only the suit was dismissed under Order 9 Rule 2 of the CPC but also under Order 9 Rule 8 of the CPC for which the application should have been filed by the petitioners under Order 9 Rule 9 of the CPC as well - Revision dismissed. (178) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 2 - Notice of the application was not issued but only copy of the application was directed to be supplied to the opposite party - In these circumstances, the Court should have issued notice on the application and then called upon parties to supply copy to the Counsel opposite - If notice on the application for recall of the order under Order 9, Rule 2 CPC was not issued or served the procedure adopted was improper and thus suffers from material irregularity. (179) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 2 - Suit dismissed for non-prosecution - Due to non-furnishing of fresh address - Notice of the instant revision petition was issued to the respondent, it was received back unserved with the report that he was not residing at the given address - Consequently, it is apparent that address given in the plaint, as also given in the instant revision petition, is not correct address of the respondent - Similar report had been received on the summons in the trial court whereupon plaintiff was directed to furnish correct address of the defendant, but the plaintiff failed to do so inspite of many opportunities - Ends of justice would be met if suit of the plaintiff is restored on payment of heavy costs. (173) P.L.R. 2
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 3, 4 - Application for restoration moved after 2 years - That they had authorized H.S. to pursue the case - That the son of H.S. died on 11.10.2007 - Application for amendment of the plaint was moved on 07.11.2007 which was even allowed by the trial Court - Prior to that petitioner availed number of opportunities to produce the evidence but they did not produce any evidence and ultimately moved an application for amendment of the plaint - Explanation given by the petitioners is palpably false and has only be projected to gain the time to move application - Dismissed - Order upheld. (183) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 3, 4 - Application for restoration of the suit dismissed in default under Order 9 Rule 3 lies under Order 9 Rule 4 - As per order 43 Rule 1 CPC the order rejecting an application under Order 9 Rule 4 is not an appealable order - Thus the learned Additional District Judge, Patiala while entertaining the appeal has not taken into consideration this legal aspect. (183) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 3 - Case was was fixed for arguments on application for supply of documents filed by the respondent/defendant to which the petitioner had already filed reply - The court instead of deciding the application proceeded to exercise powers under Order 9 Rule 3 CPC and dismissed the suit in default - There was no negligence on the part of the petitioner - The counsel for the petitioner did not appear on the date fixed due to call of the District Bar Association, Karnal, to boycott court work - Although strike by Bar is not itself a sufficient ground for restoration of suit dismissed in default nevertheless the law is equally well-settled that a party cannot be made to suffer due to fault of his advocate. (174) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 4 - Application filed after 15 years - That she was not aware of the fact of passing of the order of dismissal of suit qua defendant No.1 on account of non filing of process fee for summoning and even the delay caused was not intentional in any way - In such like matters, application should not be dismissed on the ground of limitation and a lenient view is to be take while condoning the delay - Court below has accepted the application under Order 9, Rule 4 CPC so as to give finality to the litigation because defendant No.1 may not move any application for de novo trial at a subsequent stage - Order upheld. (183) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 4 - No one appeared in the Court either on behalf of the plaintiff or the defendants - Petitioner moved an application within the period of 30 days prescribed for preferring an application for restoration - In view of legal position there is no need to issue notice to the opposite side to hear them out on settled proposition of law - Petition allowed. (176) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 7 - Application for setting aside exparte orders was dismissed on the ground that it was filed a date latter after the next date - Denial to the petitioner's right to defend the suit is not justified and the petitioner should have been saddled with exemplary costs for delaying the trial - The suit as noticed above being for specific performance of agreement to sell - There is no period of limitation prescribed for filing application for setting aside exparte proceedings - The limitation prescribed is only for exparte decree. (178) P.L.R.
CPC O. 9, R. 7 – Application for setting aside of ex parte order as also revision petition dismissed- Petitioner would still be entitled to participate in the proceedings from the stage at which the appearance was entered - He has the right to participate in the proceedings, to cross-examine and if necessary, to lead evidence in rebuttal.(2018-4) PUNJAB LAW REPORTER
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 7 - Application for setting aside the order proceeding ex-parte and permitting the defendant to contest the suit on merit - No substantial proceedings have been undertaken before the trial Court during the intervening period - In the event of allowing the defendants only to join the proceedings without filing written statement would definitely cause material prejudice to the defendants and in the absence of written statement it would be futile to even join the proceedings of the case - Foundation has to be lead in order to defend the case. (182) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 8 - Normally when the suit reaches at the stage of rebuttal evidence or arguments, it should not be dismissed in default - While on the contrary, it should be decided on merit. Even, application for additional evidence was dismissed in the suit before fixing the suit for rebuttal evidence and arguments - So the suit was required to be decided on merit, instead of dismissing the same in default - Even, if it has been dismissed in default, the same should have been restored when the plaintiff filed application before the trial Court by holding that the plaintiff could not afford to intentionally remain absent from the proceedings, especially, when the suit had reached at the stage of arguments. (174) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 9, Order 17, Rule 3(a) - Order XVII Rule 2 did not apply - Nor did the explanation to Order XVII Rule 2 CPC apply - Order XVII Rule 3(b) CPC also did not apply - This is because of the fact that the parties were present and none of the parties were absent on 29.10.2013 - Consequently, the only provision that would apply would be Order XVII Rule 3(a) CPC - Dismissal of the suit under that provision would amount to a dismissal on merits and not on account of non-prosecution or for default of the appearance of any of the parties - Application under Order IX Rule 9 CPC was wholly misconceived inasmuch as Order IX CPC itself was not applicable as the order dated 29.10.2013 was an order on merits and operated as decree.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 9, Order 7, Rule 11 - Trial Court has rejected the plaint on the ground that the same is barred under Order 9 Rule 9 C.P.C. - A reading of the said provision shows that where the previous suit has been dismissed in default for non-appearance of the plaintiff, the subsequent suit based on the same cause of action etc. is to be seen from the pleadings of the parties in the earlier suit - It is admitted fact that from the averments of the plaint itself all these facts are not clear - Therefore, the plaint cannot be rejected under Order 7 Rule 11 C.P.C. by considering the averments of the defendant in the written statement as well as the documents, if any, placed on record by the defendant. (178) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 9 - Application was filed within 30 days and sufficient cause has been shown for non appearance i.e. on account of order passed by this Court, the suit was assigned to another Court and fresh notice was issued to the parties - In such circumstances, the suit was dismissed in default on account of non appearance - The trial Court could always recall the order under the provision of Order 9 Rule 9 CPC which gave sufficient powers to the Court to recall its order whereby suit was dismissed in default. (178) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 9 - Bar for institution of a fresh suit operated and the plaintiffs as persons claiming under their father were likewise barred even if the plaintiffs were to be taken as having obtained a right after the lifetime of the father - By the fact of death of their father the right would still be available if only the father had the right, if the father had himself lost the case by dismissal of the suit against the second defendant and that dismissal would operate against the plaintiffs as well. (182) P.L.R.
Civil Procedure Code, 1908 (V of 1908) order 9, Rule 9 - Objections to execution of decree - Remained pending for two years and on one date counsel appearing on behalf of the petitioners failed to appear and the objections were dismissed for non-prosecution - Interest of the party should not suffer for misdemeanor or inaction of his counsel as the petitioner is sanguine after paying the fee of the counsel that he was watching his interest - Learned Court below has committed a patent error in dismissing the application for restoration. (178) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 9 - Order XVII Rule 2 did not apply - Nor did the explanation to Order XVII Rule 2 CPC apply. Order XVII Rule 3(b) CPC also did not apply - This is because of the fact that the parties were present and none of the parties were absent on 29.10.2013 - Consequently, the only provision that would apply would be Order XVII Rule 3(a) CPC - Dismissal of the suit under that provision would amount to a dismissal on merits and not on account of non prosecution or for default of the appearance of any of the parties - Application under Order IX Rule 9 CPC was wholly misconceived inasmuch as Order IX CPC itself was not applicable as the order dated 29.10.2013 was an order on merits and operated as decree. (174) P.L.R. (Del.)
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 9 - Replication - Pleadings in the civil suits are restricted to plaints and written statements - After the issues are framed, replication cannot be filed as a matter of right to controvert the pleas taken in the written statement - Pleas taken in the written statement which are new can only lead to framing issues - The learned trial Judge has dismissed the application for permission to place replication on record - Order upheld. (176) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 9 - Suit dismissed in default - Restoration of - When the plaintiff is present in the morning and requested for fixing the case after lunch, as his counsel was busy in the another Court in another case, then by calling the case after lunch, this suit was dismissed in default as none appeared on behalf of the plaintiff - However, the presence of the plaintiff in the morning session in the Court and also filing of application within two days for restoration of the suit itself shows that there is no gross negligence on the part of the plaintiff nor there is anything to show the mala fide on the part of the plaintiff to delay the proceedings nor there is anything on the record to show that, in any way, the plaintiff was going to be benefitted by getting his suit dismissed in default. (177) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 9 - Suit dismissed in default - Restoration of - When the plaintiff is present in the morning and requested for fixing the case after lunch, as his counsel was busy in the another Court in another case, then by calling the case after lunch, this suit was dismissed in default as none appeared on behalf of the plaintiff - However, the presence of the plaintiff in the morning session in the Court and also filing of application within two days for restoration of the suit itself shows that there is no gross negligence on the part of the plaintiff nor there is anything to show the mala fide on the part of the plaintiff to delay the proceedings nor there is anything on the record to show that, in any way, the plaintiff was going to be benefitted by getting his suit dismissed in default. M/s Rajgarhia Paper Mills Pvt. Ltd. v. Venus Paper Mills Ltd. . (177) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 12 - Trial court ought to have set aside the order closing the evidence while allowing the application seeking setting aside the ex parte order instead of allowing the petitioner-defendant to join proceedings from the next date - Since the impugned order is not fair - Petitioner is granted opportunity to lead evidence, in essence, from the stage of the suit, from which they had been allowed, to lead their evidence. (182) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 , Order 5, Rule 17 - Setting aside ex-parte decree - Evident that the trial Court neither took into consideration the report of affixation nor bothered to examine as to by whom the report made by the Process Server has been attested - Had the trial Court examined the report of the Process Server properly and noticed that the report has been attested by none else than father of the petitioner who would be highly interested in securing a decree in favour of his son - Order setting aside exparte decree - Upheld. (182) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - While exercising the discretion for setting aside the ex-parte decrees or condoning the delay in filing the application to set aside the ex-parte decrees, the court is competent to direct the defendants to pay a portion of the decreetal amount or the cost - While the trial court has exercised the discretion to condone the delay in filing the applications to set aside the ex-parte decrees, in our view, the trial court should not have imposed such an unreasonable and onerous condition of depositing the entire suit claim in the suits when the issues are yet to be decided on merits - While considering the revision, the High Court should have kept in view that the parties are yet to go for trial and the appellants ought to have been afforded the opportunity to contest the suits on merits. (2016)3 P.L.R.SC 647
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13, Order 1, Rule 10 - Exparte Decree - Agreement to sell which was converted into sale deed specifically mentions the pendency of the application under Order 9 Rule 13 CPC for setting aside the exparte decree - The petitioners purchaser of the property has insufficient locus standi to enter the proceedings pending Order 9 Rule 13 CPC - The two stages are clearly distinct; one, is the stage when the ex parte judgment and decree stand but have been made inoperable by an interim stay order, the petitioner being a purchaser subsequent to the order of stay - The second stage can arise only in the event of success of the application under Order 9 Rule 13 CPC which stage is not reached yet - That bridge is not reached for the petitioner to cross - When that bridge is reached, it will always be open to the petitioner to apply under Order 1 Rule 10 CPC. (177) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13, Order 20, Rule V - Setting aside exparte decree - Trial Court Court has rightly observed that copy of newspaper in which notice was published, was required to be sent to the respondent - Furthermore, there is no evidence that the newspaper was in circulation in the area where the respondent ordinarily resides - In such circumstances, it cannot be deemed that the respondent stood served - Court should take liberal approach and for advancing the cause of substantial justice, hyper-technical approach should not be taken - The respondent has filed the application under Order IX Rule 13 CPC immediately after coming into knowledge of the ex parte decree. (174) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13, Order 41, Rule 14(3) - Service of respondents was dispensed with as they were ex-parte in the trial Court - Appellate court reversed the judgment of the learned trial Court, decreeing the suit of the plaintiff in toto granting relief of specific performance, which was denied by the learned trial Court and that too without even issuing notice to those defendants-respondents who were going to be adversely affected - Appellate court committed patent illegality thereby violating the golden rule of audi alteram partem, therefore, the impugned judgment and decree cannot be sustained. (175) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13, Order 43, Rule 1(c) - An application was filed for setting aside the order along with an application for condonation of delay - Under Order 43 Rule 1(c) CPC, an order under Order 9 Rule 9 CPC, rejecting the application to set aside the dismissal of a suit is appealable - In such circumstances, the applicants could show sufficient cause which they did - Lower Appellate Court was not justified in holding that the appeal was not maintainable. (178) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13, Order 9, Rule 1 Sub-Rule (1) - Contesting respondents/plaintiffs raised no objection if the application for setting aside the ex parte judgment and decree is allowed and the suit is decided afresh after providing an opportunity to the applicants to contest the proceedings - As the plaintiffs raised no objection to set aside the ex parte proceedings - There was no occasion for the trial Court to frame an issue for determination, in the circumstances of the present case. (183) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Exparte award set aside by High Court in revision - During proceedings death of petitioner - Setting aside the order on payment of costs and fixing date in the trial court - None appeared on the date fixed - Award of the Tribunal was held valid - Although there is no provision for filing application under Order 9 Rule 13 of the CPC again, but still the legal heirs have filed the application - It was for the petitioners to appear and tender the cost before the Tribunal on the date of their appearance and in their absence, there was no other alternative with the Tribunal but to maintain the award - Motor Vehicles Act, 1988 (59 of 1988) S. 166. (178) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Application for restoration of the suit but no application for condonation of delay was filed alongwith the application - Suit withdrawn by only one plaintiff - Stated that since the suit land had been partitioned and she was left with no share in the same she did not want to pursue the present suit further and prayed for withdrawal of the suit - She signed the statement and the Advocate who signed beneath her signature appended his signature only to identify her - No statement made by the Advocate representing all the three plaintiffs for withdrawal of the suit - Order restoring suit - Upheld. (182) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Application for setting aside exparte proceeding - so far as statements and the compromise are concerned, they cannot be appreciated at this stage - Once there is specific allegation regarding fraud, misrepresentation, coercion as well as pressure and getting the signatures on blank paper then the Court has rightly allowed the application of the defendants and allowed them to appear and contest the suit by filing the written statement. (175) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Application to set aside exparte judgment - Even after the publication in `Statesman', the appellant/defendant did not appear - The respondent/plaintiff subsequently converted the suit from Order 37 CPC to an ordinary suit for recovery of money and once again notices were repeatedly sent to the same address of the appellant/defendant, but once again the appellant/defendant could not be served and therefore for the second time the appellant/defendant was served by means of publication in the newspaper - Even on merits the appellant's case lacks bonafides - The object of judicial process is not to enable persons such as the appellant/plaintiff to keep on deliberately avoiding the court process, and when execution proceedings are filed thereafter file an application under Order 9 Rule 13 CPC. (174) P.L.R. (Del.)
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Decree is a formal expression of what the judgment contains and even the language of Order 9 Rule 13 CPC makes only a reference to an application to set aside the ex-parte decree and does not make explicit an expression to set aside the exparte judgment - The application was correctly framed and the ground taken by the Court to decline the ex-parte judgment was not correct. (183) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Defendant is a semi-literate - It is not a denying fact that most of the litigants depend upon the advise given by the counsel and for many other miscellaneous clerical works, they completely depend upon the clerk of the counsel - Therefore, the possibility is there that the clerk of the counsel for the revisionist did not collect the certified copy, resulting in delay - It has been further contended that the only land of the present revisionist is alleged to have been sold through the agreement to sell - The revisionist also denies the signatures on the said agreement to sell - Interest of justice requires that in this case the matter should be decided on merits. (182) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Delay - It seems to be a non-sequeter that any entry in jamabandi could bring a knowledge of the decree at a particular date. (183) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Delay of 607 days in moving the application - Ordinarily courts have taken a liberal view on applications filed under Order 9 Rule 13, as an endeavour is made to render a decision on merits - Therefore, an application under Order 9 Rule 13 is ordinarily allowed unless there is delay in moving such an application which is deliberate, intentional or malafide - Narration of facts set out hereinabove, would show that the delay in this case was neither deliberate nor intentional or even malafide - A large part of the delay occasioned on account of the lawyer, engaged by the appellant, not following the case - Delay condoned. (179) P.L.R. (Del.)
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Especially keeping in mind the fact that the petitioner are NRIs, this Court is of the opinion that the Trial Court failed to take into consideration the application for restoration in its true perspective - The Lower Appellate Court had also taken a very technical view for dismissing the application being not maintainable - The words "sufficient cause" is an elastic term. (178) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Ex parte decree - Once the ex parte decree was brought in challenge to an appellate court and the petitioners had been served with notice by the Appellate Court and the Appellate Court confirmed the ex parte decree, the decree passed by the Appellate Court completely supplants the ex parte decree and the trial Court had no further power to modify the decision which was already taken - It ceases to be an ex parte decree merely by a party to apply for setting aside the same - On the other hand, it must be taken to have merged with an Appellate Court decree that was decided on contest and on merits. (180) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Execution proceedings could not be stayed by the executing Court merely because the petitioner had filed separate application under Order 9, Rule 13 CPC. (173) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Exparte decree - Respondent-defendant was proceeded exparte and at that time, he was though absconding, but surrendered to the police in the month of October, 2006 and ultimately was acquitted on 1.12.2006 - That he acquired the knowledge of the ex-parte judgment and decree on 29.12.2009 and thereafter applied for the certified copy of the same - Accordingly, the application as filed in January, 2010 - There was no service by beat of drum under Order 5 Rule 20 CPC on the day when the respondent-defendant was proceeded exparte as he was not residing in the village - Application allowed - Order upheld. (182) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Exparte order set aside - Petitioner -defendant who has been permitted to join ex-parte proceedings should have been permitted to file the written statement in his own defence. (176) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Limitation Act, 1963 (36 of 1963) S. 5 - Court on the one hand directed that all the issues being interconnected will be decided together, as is evident from the order already extracted above, and on the other hand, in the next line, it is mentioned that application under Section 5 of the Limitation Act is dismissed - If the application under Section 5 of the Limitation Act was dismissed - Nothing remained to be decided - Issue whether the exparte judgment and decree deserves to be set aside on the grounds mentioned in the application was to be decided thereafter if necessarily taking evidence. (183) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Return of documents - Suit consolidated - Affidavit and documents filed - Cross-examination had been deferred - Other suit being filed - Application for return of original documents - Dismissed on the ground that they would have the opportunity to file fresh affidavit in the present suit - The petitioners then filed the application for withdrawal of the original documents and their affidavits tendered in examination-in-chief for the purpose of tendering in the suit but this application has also been dismissed by the trial Court vide the impugned order on the ground that the documents cannot be returned and they would have the opportunity to file fresh affidavits in the present suit and copies of documents may be proved on record under the Rules - The order of learned Court below is totally illegal and cannot be accepted - Although, order 13 Rule 9 does not talk of return of the admitted documents in a pending suit and provides that parties would be entitled to receive the documents back when the suit is disposed of which is not the position in the present case. (178) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Service - Applicants had not been served with summons in the suit - I cannot presume that merely because the brothers have been served they must also have known about the suit. (183) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside ex-parte judgment and decree - Process server who reported of refusal to accept notice - Admitting during cross-examination he did not knew personally and reported on the identification of JS - Witness has not been examined - Report on the other summons shows that he was not found on that day on the given address and the summons received back unserved with the report of process server - Trial Court has rightly recorded that there was nothing on record to presume he was trying to avoid service - Therefore, service through publication was not proper. (182) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside exparte decree - Delay expression `sufficient cause' is to receive liberal construction so as to advance substantial justice - When there is no negligence, inaction or want of bonafide is imputable to the appellants, the delay has to be condoned - The discretion is to be exercised like any other judicial discretion with vigilance and circumspection - The discretion is not to be exercised in any arbitrary, vague or fanciful manner - The true test is to see whether the applicant has acted with due diligence. (S.C.)(179) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside exparte decree - Not denying fact that earlier parties had filed a petition under Section 13-B of the Hindu Marriage Act, 1955 in district Court at Ludhiana, wherein at the second motion, the present appellant did not appear and the same was dismissed in default - She had also filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the Ilaqa Magistrate Ludhiana which was also dismissed for want of prosecution - Mere fact that the husband remained mum, does not mean that he committed a fraud - The present position is that after his re-marriage, the respondent-husband has two children from the second marriage - Appeal dismissed - Hindu Marriage Act, 1955 (25 of 1955) S. 13. (180) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside exparte decree - Plaintiff produced only Naib Nazar (previously Process Server), who proved the alleged report of refusal by the defendant - However, this official did not know the defendant personally - The witness, who identified the defendant on the report of refusal, has not been examined as witness in the proceedings before the trial court - Consequently, from the testimony of Naib Nazar alone, it cannot be said that it was the defendant and not somebody else, who allegedly refused to accept the summons - Practically there is no evidence on behalf of LRs of plaintiff to depict that defendant was residing in Village Dhanda at the relevant time, whereas there is reliable documentary evidence besides oral evidence led by respondent No.1-defendant that he was residing in Rajasthan and not in Village Dhanda in District Jalandhar at the relevant time - Exparte decree set aside - Order upheld. (173) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside exparte decree - Respondent wife was living in America - Since the respondent was residing in America, she did not come to know about the publication of summons qua her in the newspaper - Respondent who was residing in America, could not have come to know about the publication of summons qua her in the newspaper `The Tribune' - Ex-parte decree set aside - Order upheld. (179) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside exparte decree - That the petitioner has been served only with the summons and not the copy of the plaint along with it - The contention by him, therefore, is that when he was not duly served - I think the contention ill-behoves a fair submission in Court and for the indiscretion made by the party in approaching the Court without disclosure of full facts, I impose costs of Rs.25,000/- to be paid for setting aside the ex parte decree - There was no due notice of summons, I will not find that there was any delay in filing the application. (180) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside exparte decree - Were minors at the time of the trial - From the report of the process server, it had come to the notice of the Court that their natural guardian was not acting in consonance with the interest of the minors - No steps were initiated by the Court to issue notices to get the minors represented through a next friend or by appointing a Court guardian - The decree was passed exparte against respondents minors - Who were not properly served and were not properly represented at the relevant time i.e. during the trial of the case, as they were minors - For the said reasons, the exparte decree against the minors had to be set aside and since it was indivisible in nature. (182) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside exparte decree - While the trial court has exercised the discretion to condone the delay in filing the application to set aside the ex-parte decrees on deposit of the entire amount - Trial Court should not have imposed such an unreasonable and erroneous condition - In the suits when the issues are yet to be decided on merits - Since the appellants have satisfactorily explained the reasons for the delay and with a view to provide an opportunity to the appellants to contest the suit, the impugned order is liable to be set aside - Amount deposited to set aside ex-parte decree shall be invested in a Nationalized Bank so that the accrued interest may enure to the benefit of either party. M/s GMG Engineering Industries v. M/s Issa Green Power Solution . (S.C.)(179) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside exparte decree -Where the receipt of summons is denied by person but the Court records indicate that there had been a service, there must be an attempt on the part of the Court to elicit the evidence through the bailiff to ascertain whether the service was actually effected only on the parties and whether the endorsement of service were properly attested and identity of the persons had been established - There cannot be a matter of presumption if a denial of service was made. (180) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside exparte ejectment order - As per report of process serve petitioner was not found at the spot and his father had refused to accept summons on behalf of his son - Although, father had refused to accept summons on behalf of his son - Although, father of the petitioner had also refused to accept summons on his own behalf but so far as petitioner is concerned, he was not found present at the spot - In these circumstances, learned Rent Controller should have made another effort to effect service on petitioner rather than initiating exparte proceedings against him - East Punjab Urban Rent Restriction Act, 1949 (III of 1949) S. 13. (175) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside exparte judgment - Defendant was not duly served and therefore she could not have been proceeded ex-parte - As regards delay in filing application of 21 days - Said delay had been sufficiently explained by the respondent-defendant by bringing on record the fact that she was a rustic lady and she could not arrange funds - Delay condoned - Order upheld. (178) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside exparte order - Appellant - Board had been served in the proceedings and had engaged a counsel, who has chosen not to appear and only at the fag end, four days prior to the conclusion of the suit, application for setting aside the ex parte proceedings had been filed after a period of two years - In such circumstances, no fault could be found in the order passed by the trial Court in dismissing the application for setting aside the ex parte proceedings. (180) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside exparte proceedings - Serving official made a report in regard to personal service of the petitioner and an endorsement in this regard with signatures of the petitioner - Has not averred that his other family members arrayed as defendants do not maintain cordial relations with him in order to rule out possibility of his gaining knowledge of pendency of the proceedings - Above all, it is none of the plea of the petitioner that his other family members, a party to the suit have an interest adverse to the petitioner - Application dismissed - Order upheld - Petition dismissed with compensatory costs of Rs. 10,000/-. (183) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside exparte decree - Was seriously contesting the claim - Counsel pleaded no instructions - Not clear when the counsel informed the defendant and on which address letter was posted - Nothing on record suggestive of the fact that after pleading no instruction he sent an intimation to his client (defendant) with regard to his having pleaded no instructions and therefore not representing the defendant - The trial Court was required to issue notice to defendant - It further appears to the court that as defendant passed away one month after the order there was less likelihood of his having received any communication from his counsel - Appeal allowed exparte decree set aside. (183) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside order proceeding ex parte - Was proceeded against ex parte on the basis of publication in the newspaper which has no circulation in the area where petitioner resides - Otherwise also publication is ordered only when the Court is satisfied that the party is avoiding service or for any other cogent reason that the summons cannot be served in the ordinary way - Summons were issued at the address which as per report was also wrong - Thus service was not effected on the correct address was proceeded against ex parte on the basis of publication - Cases should be decided on merit and not merely on technical grounds - Rules of procedure are handmaid of justice and to do substantial justice - Order dismissing the application for setting aside ex parte proceeding. (173) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Setting aside the exparte order - Applicant had not been served with summons - So long as the suit was still pending and other defendants were contesting the case, the Court ought to have been liberal in allowing the ex parte order to be set aside and the defendant to file the statement and proceed with the trial - The dismissal of the application was not justified. (173) P.L.R. 0
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Suit was dismissed in default - There was no representation either on behalf of the petitioner or the respondent-defendant - Counsel for the respondent has not disputed that members of the Bar at Karnal were on strike - Application for restoration was filed within the stipulated period of limitation of 30 days - The learned trial Court has adopted a very casual and pedantic approach while dismissing the application for restoration of the suit. (182) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Summons - Process server report avoiding service - In case the petitioner had any grievance vis-a-vis the report of refusal, he should have summoned the Process Server who has caused the report of "refusal", but knowing fully well that in case the aforementioned witness is examined in support of the contention made in the application, he would negate his plea, the petitioner did not summon him - Having failed to do so the petitioners had the knowledge of the ex-parte judgment and decree. (182) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - Trial Court while seized of the petitioner's application under Order 9 Rule 13 CPC for setting aside the exparte judgment and decree was supposed to decide independently the petitioner's application for staying execution proceedings on the well established principles of prima facie case, balance of convenience and irreparable loss and injury. (173) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 - When dasti summons were served, the Process Server was not accompanied by any person who could recognize the defendant - Process Server has denied his personal acquaintance with the defendant and no-one was with him from the village who could have identified defendant at the time of service - The Handwriting and Fingerprint Expert examined by the defendant has also not approved the alleged signatures of defendant on summons - The order proceeding against him ex-parte cannot be sustained. (178) P.L.R.
Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 21 - Once the Appellate Authority has recorded a finding that the petitioners were wrongly proceeded against ex-parte then there was no question of directing them to join proceedings from the stage where the proceedings are on that date - They should have been allowed to join proceedings from the initial stage - Petitioners should have been given opportunity to file reply to the application - Thereafter they should have been heard at the time of framing mode of partition and then opportunity should have been provided to file objections to naksha bey. (180) P.L.R.