Skip to content


Radhey Shyam Vs. Mst. Lalli and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 257 of 1972
Judge
Reported inAIR1979Raj103
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rules 7 and 13 - Order 20, Rules 4 and 5
AppellantRadhey Shyam
RespondentMst. Lalli and ors.
Appellant Advocate K.N. Tikku, Adv.
Respondent Advocate S.K. Keshote, Adv.
DispositionRevision dismissed
Cases ReferredL. Krishanlal Malhotra v. Madanlal
Excerpt:
- - provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. as the trial court has to exercise its judicial discretion while proceeding to allow or disallow an application for setting aside ex parte decree, the trial court is expected to record its finding clearly as also the reasons upon which such finding is based......ought to have been given to the defendant and as such notice was not sent to the defendant, the ex partedecree should be set aside. with great respect to the learned judge who decided kishanlal's case, i am unable to agree with the observations made by him that if an ex parte decree was passed,, then sufficient cause must be shown' in respect of the date when the ex parte proceeding was first taken. if ex parte proceedings are taken against a defendant and he wants to get such proceedings set aside, then he has a remedy open to him under order 9, rule 7, c.p.c. but after the ex parte proceedings culminated in the passing of an ex parte decree, then the defendant, desirous of getting the ex parte .decree set aside under order 9. rule 13, c.p.c. must show sufficient cause for his.....
Judgment:
ORDER

Dwarka Prasad, J.

1. This revision application has been filed against the order of the Additional Munsif No. 1, Jaipur City, dated August 10, 1971, setting aside an ex parte decree passed on January 11, 1971. ':

2. The argument of the learned counsel for the plaintiff-applicant is that no reasons have been assigned by the trial court for setting aside the ex parte decree.. It was also argued that sufficient cause for the non-appearance of the defendant should have been shown, not only in respect of the date on which the ex parte decree was passed but also for the date on which the ex parte order was passed against the defendant. In support of his second contention someobservations made in L. Krishanlal Malhotra v. Madanlal, AIR 1950 Lah 43 have been relied upon.

3. An ex parte decree can be set aside under the provisions of Order 9, Rule 13 C.F.C, which runs as under:--

'13. Setting aside decree ex parte against defendant: In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. .

Explanation:-- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.'

The defendant against whom an ex parte decree was passed must show either that summons were not duly served upon him or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. The words 'the suit was called on for hearing' must obviously refer to the date on which the ex parte decree was passed, and not to any earlier date. The observations made in Kishanlal's case (AIR 1950 Lah 43) are merely obiter, as in that case their Lordships of the Lahore High Court proceeded to set aside the ex parte decree on the ground that notice of transfer of the case to another court ought to have been given to the defendant and as such notice was not sent to the defendant, the ex partedecree should be set aside. With great respect to the learned Judge who decided Kishanlal's case, I am unable to agree with the observations made by him that if an ex parte decree was passed,, then sufficient cause must be shown' in respect of the date when the ex parte proceeding was first taken. If ex parte proceedings are taken against a defendant and he wants to get such proceedings set aside, then he has a remedy open to him under Order 9, Rule 7, C.P.C. But after the ex parte proceedings culminated in the passing of an ex parte decree, then the defendant, desirous of getting the ex parte .decree set aside under Order 9. Rule 13, C.P.C. must show sufficient cause for his non-appearance on the date when the ex parte decree was passed. Even if sufficient cause for non-appearance on an earlier date, when the ex parte order was passed is shown, then also the ex parte decree cannot be set aside, in case sufficient cause is not shown for the absence of the defendant on the date, when the case is called on for hearing, resulting in the passing of the ex parte decree. Thus, in my view, in the present case the defendant should have shown sufficient cause for his absence on January 11, 1971.

4. The case of the defendant Smt. Rama, who applied for setting aside the ex parte decree, was that her elder sister Anandi Devi was suffering from Cancer for the last three months and was an indoor patient at the Sawai Mansingh Hospital, Jaipur and that the aforesaid Anandi Devi died on January 10, 1971 and on that account the defendant, Smt. Rama, could not appear on January 11, 1971 before the trial court. According to her she was attending upon her sister during her illness and on account of the death of her sister on January 10, 1971, she was unable to appear, before the Court on January 11, 1971. Mr. Tikku, learned counsel for the plaintiff-applicant, argued that the allegations made in the application submitted by Smt. Rama were controverted by the plaintiff and that the trial court should have passed a speaking order in the matter. It must be observed that the order passed by the trial court is laconic inasmuch as no reasons for setting aside the ex parte decree have been assigned by the trial court in its order. However, it appears from the order of the trial court that the version of the defendant was accepted by it that shecould not attend the court on January 11, 1971 on account of the death of her sister which took place on January 10, 1971. There is no reason to disbelieve the case set up by the defendant in that matter, merely because there is a denial by the plaintiff.

5. It must be impressed upon the trial courts that due weight should be given, while writing an order, to the respective contentions of both the parties and proper reasons should be assigned for the conclusions arrived at by that court so that the appellate or the revisional court may be able to appreciate as to what grounds prevailed with the trial court while passing such an order. As the trial court has to exercise its judicial discretion while proceeding to allow or disallow an application for setting aside ex parte decree, the trial court is expected to record its finding clearly as also the reasons upon which such finding is based. If that would have been done, I am sure that the suit would not have remained pending for such a long time. It is only because of the laconic nature of the order passed by the trial court that this revision application was entertained by this Court.

6. However, having considered all the facts and circumstances of the present case, as I have already observed above, there is no reason to disbelieve the case set up by Smt. Rama that her sister Anandi Devi was suffering from Cancer for the last three months and she died on January 10. 1971, which prevented her from appearing in the Court on the next day. I, therefore, hold that there was sufficient cause for the non-appearance of the defendant Smt. Rama in the trial court on January 11, 1971, when the ex parte decree was passed. Consequently, the order of the trial court setting aside the ex parte decree is upheld. The revision application is, accordingly, dismissed. The parties are left to bear theirs own costs of this revision petition.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //