Code of Civil Procedure, 1908 – ss.96, 105 & Or.IX, r.13 – Ex-parte decree against defendant – Appeal u/s.96 – Scope of adjudication – Ex-parte decree was passed against the appellantdefendant in the suit filed by first respondent – Plea of the appellant that the High Court in appeal u/s.96 while confirming the decree on merits proceeded on the basis that the issue regarding the failure to serve the suit summons can be agitated only in an application filed for setting aside ex-parte decree by invoking r.13 of Or.IX – Correctness of – Held: The appellant while challenging ex- parte decree by filing an appeal, can always point out from the record of the trial court that the order passed to proceed with the suit ex-parte against him was illegal – Though he would not be entitled to lead evidence in appeal for making out a sufficient cause for his absence before the trial court, he can always argue on the basis of the record of the suit that either the suit summons was not served upon him or that even otherwise also, the trial court was not justified in proceeding ex-parte against him – Only when the application made by a defendant u/r.13 of Or. IX is dismissed that such a defendant cannot agitate in the appeal against ex-parte decree that the order directing that the suit shall proceed ex-parte was illegal or incorrect – However, in the present case, the appellant had not filed application u/r.13 of Or.IX, therefore, such a contention can be raised by him – Also, on facts proceeding ex-parte against the appellant was not warranted – Impugned order passed by the High Court as well as the decree of the Trial Court set aside – Further, on facts the prayer for remand of the suit is accepted – Appellant to pay costs of Rs.2,00,000/- to the first respondent – Original suit restored. Code of Civil Procedure, 1908 – s.105 – Held: Under s.105 when a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case can be set forth as a ground of objection in the Memorandum of Appeal. Code of Civil Procedure, 1908 – Or.V, r.17 – Requirement under – Non-fulfillment of – Ex-parte decree passed against the appellant and second respondent observing that they did not appear despite the service of summons – Held: Record shows that an attempt to serve summons by the regular mode failed as the premises of the appellant were found to be locked – Trial Court did not direct affixing of a copy of the summons on the outer door of the premises in which the appellant was residing, as required by r.17 of Or.V – Without verifying whether the address of the appellant, as shown in the cause title of the suit was correct, summons was ordered to be served through Registered Post AD – Decree set aside. Partly allowing the appeal, the Court
HELD: 1.1 In this case, the question is when the defendant did not avail the remedy under Rule 13 of Order IX of CPC, whether it is open for him to agitate in the regular appeal against the decree that the trial court had no justification for proceeding ex parte against the appellant. In such a case, though the appellant would not be entitled to lead evidence in appeal for making out a sufficient cause for his absence before the trial court, he can always argue on the basis of the record of the suit that either the suit summons was not served upon him or that even otherwise also, the trial court was not justified in proceeding ex parte against him. The reason is that under Section 105 of CPC, when a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case can be set forth as a ground of objection in the Memorandum of Appeal. Thus, in such a case, the appellant can always urge in an appeal against the decree that an interim or interlocutory order passed during the pendency of the suit affecting the decision of the case was illegal. Therefore, the appellant, while challenging ex parte decree by filing an appeal, can always point out from the record of the trial court that the order passed to proceed with the suit ex parte against him was illegal. As held in the case of Bhanu Kumar Jain, only when the application made by a defendant under Rule 13 of Order IX of CPC is dismissed that such a defendant cannot agitate in the appeal against ex-parte decree that the order directing that the suit shall proceed ex- parte was illegal or incorrect. However, in this case, the appellant has not filed application under Rule 13 of Order IX of CPC. Therefore, such a contention can be raised by him. [Para 8][210-F-H; 211-A-C]
Bhanu Kumar Jain v. Archana Kumar & Anr. (2005) 1 SCC 787 : [2004] 6 Suppl. SCR 1104 – relied on.
1.2 On facts of the case in hand, it is found that there is a noting in the order sheet of the trial court dated 27th October 2014 that the summons issued to the appellant and second respondent was returned unserved with the remark that their respective premises were locked. However, on 05th January 2015, the trial court ordered issue of summons by Registered Post Acknowledgement Due at the same address. The order sheet of 05th March 2015 records that the summons sent to the appellant and the second respondent by post was returned with the remarks “Intimation Delivered”. Thus, the record shows that an attempt to serve summons by the regular mode failed as the premises of the appellant were found to be locked. The trial court did not direct affixing of a copy of the summons on the outer door of the premises in which the appellant was residing, as required by Rule 17 of Order V of CPC. Without verifying whether the address of the appellant, as shown in the cause title of the suit was correct, summons was ordered to be served through Registered Post AD. Therefore, there was no warrant for proceeding ex parte against the appellant. Moreover, it is found from the rejoinder that a multi-storeyed building consisting of ground plus four floors has been constructed on the suit property and the residential premises in the building on the suit property have been occupied by different persons. As noted earlier, there is a decree passed for the demolition of the building constructed on the suit property. This is one more reason to accept the prayer for remand of the suit. The suit was instituted in the year 2014. As a result of passing an order of remand, the disposal of the suit filed by the first respondent will be delayed. Therefore, the appellant will have to be saddled with costs quantified at Rs.2,00,000/- (Rupees two lacs only). Though no adjudication is being made on the issue whether the occupants of the building are necessary parties to the suit, a liberty will have to be granted to the first respondent, if he so desires, to implead the persons in possession of the premises in the building constructed on the suit property. The impugned judgment and order passed by the High Court as well as the impugned judgment and decree dated passed by the learned Judge of the City Civil Court at Bangalore are set aside. Original Suit No.6610 of 2014 is restored to the file of the City Civil Court, Bangalore. The first respondent shall be entitled to costs quantified at Rs.2,00,000/- (Rupees two lacs only) from the appellant. The payment of costs shall be the condition precedent. [Paras 9-11, 13][211-D-H; 212-A-C, F] Bhivchandra Shankar More v. Balu Gangaram More
& Ors. (2019) 6 SCC 387 : [2019] 7 SCR 298 –
referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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