Whether court should set aside exparte decree if defendant refused to accept service of summons?

The summons issued by registered post was received back with postal endorsement of refusal, as would be clear from the order dated 19.02.1997. Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant. The order dated 19.02.1997 was thus completely in conformity with the legal requirements. In a slightly 

different context, while considering the effect of Section 27 of the General Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji vs. Palapetty Muhammed and Anr AIR 2007 SC (Supp) 1705 made following observations:-

“14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh AIR 1992 SC 1604 : State of M.P. vs. Hiralal & Ors.  (1996) 7 SCC 523 and V. Raja Kumari vs. P. Subbarama Naidu & Anr. (2004) 8 SCC 774]. … ….”

20. Even after the passing of the ex-parte decree, the report filed by the process server on 04.04.2000 clearly indicated that notice was served upon Respondent No.1 which was duly acknowledged by him by putting signature on the copy of the notice. Despite such knowledge, Respondent No.1 allowed

the property to be put to auction in the month of December, 2000. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code. The High Court, therefore, rightly observed in its order dated 21.04.2006 that Respondent No.1 was not vigilant. Yet, the High Court proceeded to grant relief in favour of Respondent No.1.

21. In the light of the features indicated above and the fact that the auction was allowed to be undertaken, Respondent No. 1 was disentitled from claiming any relief as was prayed for. Further, after completion of proceedings in auction, sale certificate was also issued in favour of the Appellant.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. OF 2021

VISHWABANDHU  Vs SRI KRISHNA AND ANR. 

Author: Uday Umesh Lalit, J.

Dated: September 29, 2021. 

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Whether the court should set aside an exparte eviction decree if the tenant fails to file his written statement in the suit despite several chances?

1)  The S.S.C case No.4 of 1994 was filed

by the landlord on 18.03.1994 claiming possession,

rent and mesne profit. The landlord’s case was that

the notice was given on 24.12.1993 demanding the

amount of rent, due rent, profit etc. Thereafter

the S.C.C. Case No.4 of 1994 was filed in the Court

of Additional Civil Judge, Senior Division,

Roorkee. On 14.07.1994, the tenant was served

summons. He prayed time to file a written Statement

till 24.08.1994. The tenant filed an application

under Section 10 CPC to stay the suit as well as

the application under Order VII Rule 11 CPC. Both

applications were rejected and the Court allowed

fifteen days time to file a written statement and

fixed 16.10.1995 for hearing. On 16.10.1995, the

tenant again took time but did not file a written

statement. Several other opportunities were given

to the tenant to file a written statement in which

he failed. On 24.02.1997, Court passed an order to

proceed exparte.

2) Application under Order 9 Rule 13 can be allowed only

 when sufficient cause is made out to set aside the exparte

decree. The present is a case where no sufficient cause 

was made out to set aside the exparte decree.

48. As noted above, the tenant had unsuccessfully

challenged the orders passed by the trial court on

24.02.1997 and 18.03.1997 to proceed exparte.

The application of the tenant to recall the orders

dated 24.02.1997 and 18.03.1997 was rejected by the

trial court with a clear finding that the tenant

wants to delay the case regularly because he is the

tenant and getting benefit of the property. The

application of the tenant was held to be mala fide.

49. The High Court without even adverting to the

earlier order of the trial court dated 16.05.1997,

where categorical findings had been recorded

against the tenant, choose to allow the application

under Order 9 Rule 13 filed by the tenant to recall

exparte decree, which cannot be said to be correct

exercise of jurisdiction under Article 226 of the

Constitution.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.802-803 of 2021

SUBODH KUMAR  Vs  SHAMIM AHMED 

Author: ASHOK BHUSHAN, J.

Dated: March 03, 2021.

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Does Section 96 of CPC restrict the scope of cross-objections only to questions of merit excluding any aspect of procedural lapses?

 The first appellate Court has heavily relied on the case holding

of Bhanu Kumar Jain v Archana Kumar. (2005) 1 SCC 787 Then, it has held that the judicial dictum of Bhanu Kumar Jain is unmistakable and that an appeal under Section 96 of CPC cannot accommodate the grounds available for the appellants under Order 9 Rule 13 of CPC. Therefore, it has concluded

that instead of filing the cross-objections, the contesting defendants could have invoked Order 9 Rule 13 CPC.

12. In this context, we may straight away refer to para 24 of Bhanu Kumar Jain. It declares that an appeal under Section 96(2) of CPC against an ex parte decree could be filed on two grounds: (i) that the materials brought on record [the merits] in the ex parte suit proceedings by the plaintiff would not entail a decree in his favour, and (ii) that the suit could not have been posted for ex parte hearing. Thus, the procedural lapse that

has led to the ex parte decree can be very much a ground of appeal under Section 96. It is under the rubric “that the suit could not have been posted for ex parte hearing.”

21. Though the Appellate Court has acknowledged the contesting

defendants’ right to file cross-objections, it has concluded that under Section 96 of the Code, no plea about procedural lapses such as nonservice of suit summons can be taken; it ought to be purely on the merits.

22. We have already examined Bhanu Kumar Jain but have found no such judicial dictum as suggested by the First Appellate Court. Even Section 96 of the Code imposes no such restriction. Section 96, in fact, allows the first appeal against “every decree passed by any Court exercising original jurisdiction.” Under sub-section (2), it explicitly mentions that “an appeal may lie from an original decree passed ex parte.”

25. The First Appellate Court has rejected those cross-objections on the premise Section 96 of the Code allows a challenge only on the merits, but not on procedural lapses. As we have already discussed, Bhanu Kumar Jain’s dictum does not endorse this interpretation of Section 96, as the First Appellate Court has erroneously believed.

26. So, I am constrained to hold that the First Appellate Court has

misread the case holding of Bhanu Kumar Jain and misapplied its judicial dictum. Pithily put, an appeal under Section 96 can contain pleas not only on the merits but also on questions like non-service of suit summons and the illegality of the order setting the defendant ex parte – procedural lapses.

IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO.61 OF 2019

 Mr. Carlton Gilbert Fortes V/s Smt. Sonhia Lobo,

Coram: - DAMA SESHADRI NAIDU, J.

Date: - 3rd March 2020

Citation: 2020(6) MHLJ 703

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What remedies are available to the defendant if court passes an exparte decree against him?

 The proviso appended to Order IX Rule 13 of the Code of Civil Procedure postulates that when an ex parte decree has been passed against some of the defendants and it is necessary to set aside the entire decree, the Court is not powerless to do so. If an application for setting aside the ex parte decree was maintainable at the instance of the appellants, we fail to understand as to why a separate suit was required to be filed. When an ex parte decree is passed, the defendant may have more than one remedies. He may file a suit contending that the decree was obtained fraudulently. He may file an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. He may prefer an appeal from the ex parte judgment and decree. In a given case, he may also file a review application.

13. In Bhanu Kumar Jain v. Arcbana Kumar and Anr. MANU/SC/1079/2004 : AIR2005SC626 , this Court held:

26. When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is also true.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7316 of 2008 

Decided On: 16.12.2008

 Mahesh Yadav and Ors. Vs.  Rajeshwar Singh and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and Cyriac Joseph, JJ.

Author: S.B. Sinha, J.

Citation:  MANU/SC/8463/2008,AIR 2009 SC 1064

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Whether the court should set aside exparte decree on part payment of suit amount?

As pointed out earlier, the suit claim was for damages. The damages to the property if any, can be ascertained only after the parties adduce the oral and documentary evidence. We have no reason to believe that the Appellant would have benefited by deliberately not contesting the suit as they would in any event be saddled with interest if their conduct was to drag and prolong the suit. Considering the nature of the claim and other facts and circumstances and in the interest of justice, we are of a view that an opportunity has to be given to the Appellant to contest the suit subject to terms. The Appellant has also in that regard shown its bona fide by depositing Rs. 60,00,000/- in compliance of the order dated 18.02.2019. By the order dated 24.01.2020, we have also directed the Appellant to deposit further sum of Rs. 35,00,000/- for which the Appellant sought for some more time for compliance. Considering the request, two months further time is granted to the Appellant for deposit of the said amount.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1890-1891 of 2020 

Decided On: 02.03.2020

 Aviation Travels Pvt. Ltd. Vs.  Bhavesha Suresh Goradia and Ors.

Hon'ble Judges/Coram:

R. Banumathi and A.S. Bopanna, JJ.

Author: R. Banumathi, J.

Citation: (2020) 4 SCC 680

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Whether appellate court can restore possession of suit premises after setting aside exparte decree?

 Lastly, Mr. Lad pointed out that while setting aside the ex parte decree the appellate Court had directed the Petitioner to restore possession of the suit premises to the Respondent on or before 30th June 2001. In my view, such a direction could not have been issued by the appellate Court. After the ex parte decree was set aside, the proper remedy for the Petitioner is to make an application for restitution under Section 144 of the Code. The order for restoration of possession, which is in the nature of restitution, could not have been passed without an application under Section 144 of the Code and that too without an opportunity to the Petitioner to oppose.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3228 of 2001

Decided On: 07.06.2011

 Devayani Yeshwant Shivkar  Vs.  Bhaskar Chavan

Hon'ble Judges/Coram:

D.G. Karnik, J.

Citation: 2011(4) MhLJ 868

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Whether court can set aside exparte decree only against some of defendants?

 In fact, this Court, in Vasant J. Mahajan (supra) has explained that the proviso to Order 9 Rule 13 of CPC contemplates cases where the decree is of such a nature that it cannot be set aside against one defendant only. Such cases are, for instance, a decree for possession of a house in the joint possession of persons, a partition decree, and a decree for joint possession of property in the joint possession of two or more persons. It is the nature of the decree that is the determining factor and not the reasons behind the decree. Even if the defence of two defendants is common and even if the decree proceeds on a ground common to all the defendants, the ultimate decree should not be set aside against all the defendants unless it is of such a nature that it cannot be said aside as against one defendant only. Generally, in a case of money decree, the application of the proviso to Order 9 Rule 13 is not attracted. In the said case, this Court, was dealing with a money decree and in this context, this Court held that such a decree could not be regarded as indivisible because a suit for money can be decreed against one of the defendants and dismissed against another or it may be decreed against both the defendants or dismissed against both. To such a decree, the provisions of proviso to Order 9 Rule 13 are not attracted. Such a decree is not one and indivisible.

36. In case of Ramchandra Ramgopal (M/s.) Through Jugalkishore s/o. Navalkishore Kothari vs. Kamal Kishore s/o. Onkaramal Rungta and ors. - MANU/MH/1190/2004 : 2005 (2) Mh. L.J. 623, this Court has held that the proviso to Order 9, Rule 13 reveals that it is not sufficient that there was possibility of inconsistent decrees but what is necessary is that the original decree, which is being set aside at the instance of only one defendant, is of such a nature that it cannot be set aside as against that defendant only. If there is such an infirmity in the original decree, then only action as per above proviso of Order 9 Rule 13 is warranted.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 5123 of 2017 and 3587 of 2018

Decided On: 02.05.2019

 Rupee Cooperative Bank Limited Vs. Vijaya Paints Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: 2020 (1) MHLJ 210

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Whether court can refuse to set aside exparte decree considering previous conduct of defendant?

However, when the attention of the counsel for the petitioners was invited towards the observation of the trial Court that immediately after the stay order issued by the High Court came to an end, the petitioners thereafter immediately sold the property in question, then he fairly conceded that the petitioners have sold the property, but it is contended that the previous conduct of the petitioners cannot be taken into consideration and the Court must consider the conduct of the petitioners on the day when they were proceeded ex parte. It is further submitted that the attitude of the trial Court was nothing but "revengeful attitude of the Court".

8. Heard learned counsel for the petitioners.

9. It is really shocking that when the previous conduct of the petitioners was brought to the notice of the counsel for the petitioners, then he reacted by saying that if the previous conduct of a party is taken into consideration, then the same would amount to "revengeful attitude of the Court". The submission made by the counsel for the petitioners cannot be appreciated at all. It is well established principle of law that he who comes to the Court must come with clean hands. Just in order to find out that whether the grounds disclosed by the petitioners were bona fide or not, their previous conduct can very well be considered by the trial Court. The petitioners have not explained as to why they had sold the property in dispute immediately after the disposal of the writ petition, which was pending before this Court. It is fairly conceded by the counsel for the petitioners that the petitioners were appearing in the writ petition through their counsel. Once the petitioners were aware of the disposal of the writ petition and thereafter they immediately sold the property in dispute and thereafter not contacting their counsel specifically when their counsel had appeared on 12-9-2018 and under these circumstances, it clear that the conduct of the petitioners clearly shows that they were playing the game of hide and seek and thus, it can be safely said that they had not come to this Court with clean hands. Under these circumstances, this Court cannot ignore the previous conduct of the petitioners.

10. Considering the facts and circumstances of the case, this Court is of the considered opinion that no illegality has been committed by the trial Court by rejecting the application filed under Order IX, Rule 7, Civil Procedure Code.

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

M.P. No. 1325 of 2019

Decided On: 11.03.2019

 Guddi Bai  Vs.  Ramdas

Hon'ble Judges/Coram:

Gurpal Singh Ahluwalia, J.

Citation: AIR 2019 (NOC) 779 MP

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Difference between scope of first appeal and application for setting aside exparte decree

We have, however, no doubt in our mind that when an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available there against, viz, to prefer an appeal in terms of Order 43, Rule 1 of the Code. Once such an appeal is dismissed, the Appellant cannot raise the same contention in the First Appeal. If it be held that such a contention can be raised both in the First Appeal as also in the proceedings arising from an application under Order 9, Rule 13, it may lead to conflict of decisions which is not contemplated in law.

37. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex-parte hearing by the Trial Court and/ or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the First Appeal filed by him against Section 96(2) of the Code on the merit of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8246 of 2004 

Decided On: 17.12.2004

Bhanu Kumar Jain  Vs. Archana Kumar and Ors.

Hon'ble Judges/Coram:

N. Santosh Hegde, B.P. Singh and S.B. Sinha, JJ.

S.B. Sinha, J.

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Whether exparte decree can be set aside if summons was pasted without obtaining signature of witnesses?

More so, it is also clear from the report of Process Server that on the date concerned petitioner was not at home and the notice was made 'chaspa' on the wall of house of the petitioner which do not carry any signature of the witnesses, thus, suffers from infirmity in the procedure as laid down in Order 9 Rule 7 CPC and also the precedent law laid down by this Court in Rameshwar Chaudhary (supra).

8. In light of aforesaid submission, the writ petition is allowed. The impugned order dated 02.11.2018 (Annex. 6) passed by learned ADJ No. 2, Nagaur in Case No. 4/2015 (Civil Case No. 6/2015) is quashed and set aside. The application of the petitioner filed under Order 9 Rule 7 CPC is allowed.

IN THE HIGH COURT OF RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 1977/2019

Decided On: 22.05.2019

 Gram Panchayat Bhakrod Vs.  Sriramratan Construction and Ors.

Hon'ble Judges/Coram:

Pushpendra Singh Bhati, J.

Citation: AIR 2019(NOC) 663 Raj

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Whether subsequent suit can be stayed if application for setting aside exparte decree is pending?

 The object behind enacting Section" 10 of CPC would be that in regard to same property and issues involved between the same party, conflicting findings may not come by the courts. In the present case, the suit filed by the respondent herein has already been decided by ex parte judgment and decree dated 7.4.2003 and only an application under Order 9 Rule 13 is pending adjudication. The question which arises for consideration by this Court is whether mere pendency of an application under Order 9 Rule 13 CPC would tantamount to pendency of suit in the court. In view of this Court, since Original suit no. 487 of 2002 filed by the defendant has been decided by ex-parte judgment and decree dated 7.4.2003, therefore, an application filed by the plaintiffs for setting aside the ex-parte decree cannot be treated as pendency of suit. Thus, the learned revisional court has committed. illegality in allowing the revision partly and in deciding issue no. 3 in favour of defendant and staying the proceedings of original suit no. 49 till the decision in misc. application no. 67 of 2003 under Order 9 Rule 13 CPC.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 964 of 2015

Decided On: 05.04.2019

Cooper Pharma  Vs.  Shamshad Ahmad

Hon'ble Judges/Coram:

Lok Pal Singh, J.

Citation: AIR 2019 Uttar 111

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Whether exparte decree can be set aside if summon was served to wife by paper publication?

Article 123 of the Schedule to the Limitation Act, 1963 relates to applications filed to set aside a decree passed ex-parte, or to re-hear an appeal decreed or heard ex-parte. While the limitation prescribed in such cases is 30 days, the period of limitation is required to be computed from the date of the decree, or where the summons or notice was not duly served, from when the applicant had knowledge of the decree. As noted hereinabove, the notices sent to the appellant's address were returned unserved. Sri. S.K. Jain, learned Senior Counsel appearing on behalf of the appellant, would submit that the respondent had deliberately sent the notice to the wrong address in order to ensure that the appellant remained unaware of the suit, for divorce, having been filed. We are satisfied that, in the present case, service of notice through paper publication would not constitute due service in terms of Article 123 of the Limitation Act, as the appellant is a house wife without any independent source of livelihood, and is a daughter of petty vegetable vendor living in an interior part of the State of West Bengal. The court below should, therefore, have condoned the delay in filing the application under Order 9 Rule 13 CPC.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal from Order No. 502 of 2017

Decided On: 15.11.2018

 Paromita Mondal Vs.  Tarun Kumar Mondal

Hon'ble Judges/Coram:

Ramesh Ranganathan, C.J. and Alok Singh, J.

Citation: AIR 2019 UTTAR 37

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Whether Time spent to set aside ex-parte decree is “sufficient cause” to condone delay in filing Appeal?

A conjoint reading of Order IX Rule 13 CPC and Section
96(2) CPC indicates that the defendant who suffered an ex-parte
decree has two remedies:- (i) either to file an application under
Order IX Rule 13 CPC to set aside the ex-parte decree to satisfy
the court that summons were not duly served or those served, he
was prevented by “sufficient cause” from appearing in the court
when the suit was called for hearing; (ii) to file a regular appeal
from the original decree to the first appellate court and challenge
the ex-parte decree on merits.
11. It is to be pointed out that the scope of Order IX Rule 13
CPC and Section 96(2) CPC are entirely different. In an
application filed under Order IX Rule 13 CPC, the Court has to

see whether the summons were duly served or not or whether
the defendant was prevented by any “sufficient cause” from
appearing when the suit was called for hearing. If the Court is
satisfied that the defendant was not duly served or that he was
prevented for “sufficient cause”, the court may set aside the exparte
decree and restore the suit to its original position. In terms
of Section 96(2) CPC, the appeal lies from an original decree
passed ex-parte. In the regular appeal filed under Section 96(2)
CPC, the appellate court has wide jurisdiction to go into the
merits of the decree. The scope of enquiry under two provisions
is entirely different. Merely because the defendant pursued the
remedy under Order IX Rule 13 CPC, it does not prohibit the
defendant from filing the appeal if his application under Order IX
Rule 13 CPC is dismissed.
12. The right of appeal under Section 96(2) CPC is a statutory
right and the defendant cannot be deprived of the statutory right
of appeal merely on the ground that the application filed by him
under Order IX Rule 13 CPC has been dismissed.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4669 OF 2019


BHIVCHANDRA SHANKAR MORE  Vs  BALU GANGARAM MORE 

R. BANUMATHI, J.
Dated:May 07, 2019.

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Whether a party who has knowingly accepted benefits of order can assail said order later?

During the course of his submissions, Mr. Jafri, learned counsel for the petitioners has admitted that cost of Rs. 10,000/-, subject to which the ex-parte judgment and decree was set aside, was accepted by the learned counsel appearing for the petitioners/plaintiffs.

4. The petitioners cannot “blow hot and cold”, “fast and loose” or “approbate and reprobate”. Where the petitioners have knowingly accepted the benefits of an order, they cannot be permitted to assail the same. This rule is applied to do equity. Therefore, in this case where the petitioners have already accepted the cost, they are estopped by their act, conduct and acquiescence to continue the present petition.

In the High Court of Delhi at New Delhi

(Before Vinod Goel, J.)

Mustaqeem  v.  Faiyaz alias Faizab 

C.R.P No. 65/2018

Decided on January 21, 2019

Citation: 2019 SCC OnLine Del 6751

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Whether Decree Passed On Plaintiff's Evidence Without Defendant's Appearance At Trial Is Ex-Parte Decree?

 In this case, the party, who was absent and
was proceeded ex parte was the "defendants" and
they had not led any evidence whereas it was the
plaintiff, who was present and had led his evidence.

26. In other words, if the plaintiff had remained
absent and was found to have led evidence, the
Court could have invoked its powers under
Explanation to Order 17 Rule 2 of the Code treating
the plaintiff as "present" for passing appropriate
orders. Such is, however, not the case here.
27. Similarly, in converse situation, if the
defendants had remained absent (as has happened
in this case) on that date and if it would have
noticed that they had adduced the evidence either
fully or substantially prior to the date on which they
were proceeded ex parte, the Court could have
invoked its powers under Explanation to Order 17
Rule 2 of the Code treating the defendants as
"present" on that day for passing appropriate orders
in the suit. Such is, however, again not the case
here.

28. We are, therefore, of the view that 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.
29. As mentioned above, the Trial 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, in our opinion,
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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.25822583
OF 2011

G. Ratna Raj Vs Sri Muthukumarasamy Permanent
Fund Ltd. 
Abhay Manohar Sapre, J.
Dated:February 01, 2019.

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Whether evidence of witnesses recorded prior to passing of exparte decree can be used to confront them?

 In my view, where an order setting aside the ex parte decree with permission to file written statement attains the finality, it has the effect of wiping out the entire evidence recorded prior to setting aside the ex parte decree and the Court will have to re-record such evidence. The evidence of the witnesses of the plaintiff recorded earlier can be used to confront it to the said witnesses, as is permissible under Section 145 of the Indian Evidence Act, being the previous statement of the witnesses.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2177 of 2016

Decided On: 03.04.2018

 Chandraprakash Dayaramji Lanjewar Vs.  Ratnakala Wamanrao Khatkhede and Ors.

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Whether appeal and application for setting aside exparte decree can be filed simultaneously?

 In the case of Bhanu Kumar Jain Bhanu Kumar Jain v. Archana Kumar, MANU/SC/1079/2004 : (2005) 1 SCC 787, the three Judge Bench of Apex Court considered the decision of Rani Choudhary (supra). In paragraphs 26 and 28, it was observed thus :

"26. When an ex-parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex-parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex-parte decree passed by the Trial Court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, the Explanation I appended to said provision does not suggest that the converse is also true.

28. It is true that although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the ex-parte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions."

[emphasis supplied]

11. Thus, there is no statutory bar to avail two remedies simultaneously, namely, appeal under Section 96/29(1)(a) of the Act as also application under Order IX Rule 13 of C.P.C.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 1223 of 2014

Decided On: 12.04.2018

Abdul Sameer Hanif  Vs.  Saifuddin Sharafally and Ors.

Hon'ble Judges/Coram:

R.G. Ketkar, J.

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Whether previous evidence will be wiped off if exparte decree is set aside?

 The question involved in the present case is whether in the facts and circumstances of this case, the evidence led by the plaintiff and recorded prior to setting aside the ex parte decree gets wiped out completely and the Court is required to re-record the evidence?

5. The Full Bench decision of Gujarat High Court in the case of Shah Bharatkumar Premchand v. M/s. Motilal and Bharulal, reported in AIR 1980 Gujarat 51, takes into consideration the conflicting views taken by the different High Courts on the question. The Full Bench agrees with the view taken by Madras High Court that the evidence recorded before setting aside the ex parte decree does not become non est and when the ex parte decree is set aside, all that the other side can insist upon is the right to cross-examine the witness if he so desires. The Full Bench further makes the distinction and states that it is one thing to say that the proceedings would not bind the defendant and it is another to say that the proceedings must be treated as non-existed. The Full Bench accepts the proposition that nothing done during his absence can bind him. Therefore, if the Court has admitted a document which is not admissible in evidence, the defendant can insist on the document being de-exhibited. It gives an instance that if an order is passed in his absence that the document is properly stamped or does not require registration, that does not bind him and he can challenge such a decision notwithstanding the previous order.

6. The Trial Court has relied upon the aforesaid view taken by the Full Bench of Gujarat High Court and accordingly, the documents are sent for impounding. I am not expressing any view on the correctness or otherwise of the decision of the Full Bench of Gujarat High Court, which has taken a view in deviation of one taken by Andhra Pradesh, Allahabad and Calcutta High Courts. The distinguishing feature is that in the decision of the Full Bench of Gujarat High Court, it was not a case where permission to file written statement was granted while setting aside the ex parte decree. In my view, where an order setting aside the ex parte decree with permission to file written statement attains the finality, it has the effect of wiping out the entire evidence recorded prior to setting aside the ex parte decree and the Court will have to re-record such evidence. The evidence of the witnesses of the plaintiff recorded earlier can be used to confront it to the said witnesses, as is permissible under Section 145 of the Indian Evidence Act, being the previous statement of the witnesses.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2177 of 2016

Decided On: 03.04.2018

 Chandraprakash Dayaramji Lanjewar Vs.  Ratnakala Wamanrao Khatkhede and Ors.

Hon'ble Judges/Coram:

R.K. Deshpande, J.

Citation: 2018(5) MHLJ 57

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Whether court should proceed exparte even if there is no proper service of summons?

 In the present case, the notice was sent initially by RPAD and the envelope has returned with endorsement D/L 23-08-16 and 24-08-16. An intimation was given on 25-08-2016 and as the addressee did not visit the post office for collecting the registered post envelope, it was returned as unserved. The envelope nowhere shows that it was refused by the noticee i.e Appellant herein. Thereafter, summons was reissued through bailiff. That time the opponent was not there. The papers disclose that the notice was issued for the first time on 13-06-2016 and the first notice issued returned unserved as the bailiff did not get sufficient time for service.

8. This is a custody matter of a child before the Additional District Judge-5, Aurangabad, who was expected to be sensitive to the rights of the parties and was bound to verify the record before passing ex-parte order. In the first place, there was no attempt to serve the notice dated 14-08-2016 for want of time, still the Advocate for appellant filed false application dated 20-08-2016 (Exhibit-7) that the opponent No. 1 was avoiding to accept the notice. There was no material to accept the statement, still the Court proceeded with the application. Pertinently, the claim was filed at Jalgaon and the present appellant was residing with her father at Bhadgaon, District Jalgaon. As per Order V of the CPC, there is no provision of effecting service by mere RPAD. Still, the application was casually allowed. When there was no service by RPAD, still the ex-parte order was passed. The RPAD envelope does not bear the endorsement as not claimed, still the order shows that there was an endorsement as not claimed. Even if, it is assumed to be true, still such endorsement does not mean that it is endorsement of refusal to accept the service. Even if, there would have been refusal to accept the service as per Order V, Rule 17 of the CPC, service by pasting/affixing the copy of notice + plaint on the outer door or some other conspicuous part of the house was essential alongwith the report to that effect of the bailiff. No such efforts were made. Only one attempt was made through bailiff when the opponent was not found in house. This type of casual approach by a District Judge in the sensitive matter of child custody for proceeding exparte without application of mind was not expected. As there was no service of notice, the impugned ex-parte Order and Judgment is not tenable and deserves to be set-aside.

In the High Court of Bombay

(Before A.M Dhavale, J.)

 Jayshri Gajendra Mahajan,v. Gajendra Pandit Mahajan, 

First Appeal No. 2815 of 2017

With

CA/9798/2017 in FA/2815/2017

Decided on August 7, 2018

Citation: 2018 SCC OnLine Bom 2233

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Whether subsequent tenant getting possession from landlord is liable to be evicted in restitution proceeding?

In February 1971 Smt. Jaswant Kaur, Respondent 1 herein, initiated legal proceeding before the Rent Controller for eviction of her tenant, the Appellant herein, and in execution of the ex parte order passed therein obtained possession of the suit premises in October 1971. Immediately thereafter the Appellant filed an application under Order 9, Rule 13 of the Code of Civil Procedure which was dismissed by the Rent Controller. However, in appeal the ex parte order of eviction was set aside by the Rent Control Tribunal and the proceeding for eviction filed by Respondent 1 was revived. On such revival the Appellant filed an application under Section 144 of the Code of Civil Procedure before the Rent Controller for restoration of his possession which was allowed by an order dated May 13, 1977 and warrant for possession was issued. Before, however, possession could be taken pursuant thereto, Respondent 2 filed an objection before the Rent Controller contending that in terms of an agreement he had arrived at with Respondent 1 he took possession of the suit premises on May 1, 1973 as a tenant under her. He further contended that he was a bona fide transferee and that he did not know about the earlier eviction proceeding initiated against the erstwhile tenant. Consequently, he contended, he was not liable to be dispossessed pursuant to the warrant of possession.

We are unable to share the view expressed by the High Court as in our considered opinion, the status of a bona fide purchaser in an auction sale in execution of a decree to which he was not a party stands on a distinct and different footing from that of a person who is inducted as a tenant by a decree holder-landlord. A stranger auction-purchaser does not derive his title from either the decree holder or the judgment-debtor and therefore restitution may not be granted against him but a tenant who obtains possession from the decree holder-landlord cannot avail of the same right as his possession as a tenant is derived from the landlord. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3307 of 1983

Decided On: 09.02.1994

 Gurjoginder Singh  Vs.  Jaswant Kaur and Ors.

Hon'ble Judges/Coram:

S. Mohan and M.K. Mukherjee, JJ.

Citation: 1994 MHLJ 1510

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