Muniyappa and Another vs K.G. Kodandarama and Another

This revision petition arises from the order dated 11-4-2000 passed by the Principal Civil Judge (Senior Division), Bangalore Rural District, Bangalore, in Miscellaneous Petition No. 52 of 1999, whereby the Trial Court overruled the objections raised by the respondents (revision petitioners herein).

The facts of the case in brief are:

That O.S. No. 837 of 1996 having been decreed ex parte vide the ex parte judgment and decree dated 10-7-1997. The petitioners have filed the petition under Order 9, Rule 13 read with Order 9, Rule 7 of the Code of Civil Procedure for setting aside the ex parte decree along with the application under Section 5 read with Article 123 of the Limitation Act. To the said application objection was filed on the ground that the application for restoration was not maintainable under Order 9, Rule 13 of the Code of Civil Procedure. The Trial Court observed that if summons are established not to have been served on the petitioners or even if summons establish to have been served and the applicants show sufficient cause for the absence then he can maintain the application and orders may be passed according to law. The Court below at this stage did not accept the contention that the application was not maintainable under Order 9, Rule 13 of the Code of Civil Procedure.

Feeling aggrieved of the said order of the Principal Civil Judge, Bangalore Rural District, Bangalore, the respondents have come up in revision before this Court under Section 115 of the Code of Civil Procedure.

It has been contended by the learned Counsel for the revision petitioners that the Court below erred in holding that the application was maintainable and by rejecting or over ruling the objections raised by the respondents. In this case, no doubt, the ex parte decree had been passed by the Trial Court. Once the ex parte decree had been passed the defendants have two remedies either by filing the appeal against the ex parte decree of to move the application for setting aside the ex parte decree in terms of Order 9, Rule 13 of the Code of Civil Procedure. The question is to whether the application is maintainable or not?

The learned Counsel for the petitioners contended that in view of the proviso to Order 9, Rule 13 of the Code of Civil Procedure, the Court below had no jurisdiction to entertain the application. Order 9, Rule 13 of the Code of Civil Procedure reads as under:

Rule 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 plaintiffs claim.

A reading of the proviso firstly reveals that it deals with the cases where ex parte decree is sought to be set aside on the ground of 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 then it should not set that aside. But, things stand on different footings, when be a case where there has been no service of the summons on the defendant concerned non-service of summons is different thing from irregularity in service. Fraudulent service in the sense i.e., some person impersonates the defendant and puts his signature, then in that case it is established, then it is also a case of non-service of notice of summons on the defendant, it will not be a case of irregularity in service. So, where the summons had been served on the defendant or not if that is the question the Court had to determine that question whether summons had been served or not. If summons had been served on the defendant and no case is alleged about irregularity in the service of summons, but the defendants'' case is that there was some cause which prevented them from appearing before the Court and because of that they could not appear and the Court finds that cause to be sufficient for the defendants failure to appear, then under Order 9, Rule 13 of the Code of Civil Procedure it can set aside the ex parte decree. If there is really only case of irregularity in service and the case is covered by the phrase irregularity in the service of summons, then no doubt the mandate is that if the Court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim, then in such cases, it is on establishment to the satisfaction of the Court that, even though there was irregularity in service of summons, the defendant had knowledge of the date fixed in case and had sufficient time to answer the plaintiffs case, but yet he did not appears, then the ex parte decree is not to be set aside. So, the first question to be decided by the Court below would be whether there has been service of summons on the defendant i.e., opposite party and if finding is arrived at that there has been no service of notice/summons at all on the defendant, then no doubt the Court may exercise its power under Order 9, Rule 7 of the Code of Civil Procedure as well. But, if the service of summons/notices is established and it is shown that summons had been served on the defendant, but he had failed to appear on the date fixed, then the defendant will have to prove that there was sufficient cause on account of which he was not able to be present in Court, and if sufficient cause is established, the Court can restore it, because that would not be a case based on the ground that there was irregularity in the service of summons/notice. The case where setting aside of the ex parte decree is sought on the ground of irregularity in the service of summons stand on different footing. So, this aspect has to be indicated by the Court below. The application for restoration had already been made with the application for condonation of delay, I need not make any observation it is for the Court below to consider whether the defendants were prevented by sufficient cause from filing the application for setting aside the ex parte decree in time is a question to be decided by the Court below. At this stage in my opinion, nothing has been decided against the revision petitioners. In this view of the matter, in my opinion, the order impugned in this revision cannot be said to be a case decided.

Secondly, it has to be taken note of that Order 14, Rule 2 of the Code of Civil Procedure has been amended by the Civil Laws Amendment Act, 1976. As per Order 14, Rule 2 of the CPC by Amending Act of 1976 for the expression "shall" which was used in Order 14, Rule 2 as un-amended the expression "may" has been substituted. The substitution of expression ''may'' for expression ''shall'' as originally stood in Order 14, Rule 2 of the CPC clearly indicative of the intention of Legislature that it shall not be the bounded duty of the Trial Court, instead it is discretion of the Court to be exercised judiciously, to decide, if all issues be tried together or any of issues, should be tried as preliminary issue. It has been left to the judicial discretion of the Court to decide the issue of law even touching the jurisdiction as preliminary issue or to decide even that issue along with other issues keeping pace with the language and spirit of Order 14, Rule 2(1) of the Civil Procedure Code itself. When I do opine, I find support for my view from the Full Bench decision of Allahabad High Court in the case of Sunni Central Wakf Board v Gopal Singh Vishrad, AIR 1991 All. 89.

Thus, considered in my opinion the Court below did not commit any error and the impugned order cannot be said to be suffering from any error of law or jurisdiction.

The civil revision petition is misconceived, and is hereby dismissed.

I.A. I for stay is rejected as revision petition has already been dismissed.