Holding

The Supreme Court set aside the ex‑parte decree, holding that the appellant had shown sufficient cause for the delay in filing the application under Order IX, Rule 13 CPC.

Summary

The appellant, residing in Malaysia, was served summons for a suit seeking declaration of title and possession of property. The suit was decreed ex‑parte on 22 July 1986. Upon learning of the decree on 13 November 1986, the appellant filed an application under Order IX, Rule 13 of the Code of Civil Procedure on 24 December 1986, seeking to set aside the ex‑parte decree. The trial court dismissed the application, and the dismissal was upheld by the High Court. The Supreme Court held that the appellant had shown sufficient cause for the delay, given the difficulty of serving summons abroad and the short period within which he learned of the decree, and therefore set aside both the dismissal of the application and the ex‑parte decree, allowing the matter to be tried on its merits.

Issues considered

Whether the appellant demonstrated sufficient cause for the delay in filing an application under Order IX, Rule 13 CPC to set aside an ex‑parte decree when the summons were served abroad.

Legislation cited

Code of Civil Procedure, 1908s. Order IX, Rule 13

Subjects

ex‑parte decreeOrder IX Rule 13setting aside decreeservice of summons abroadcivil procedureproperty disputedeclaration of titlepossession

Judgment

A DR. SHIVDEV SINGH GREWAL THROUGH
DR. AMRIK SINGH SANDHU
v.
HARGUR3ACHAN SINGH GREWAL

OCTOBER 7, 1996
B
(K. RAMASWAMY AND G.B. PATTANAIK, JJ.)

Code of Civil Procedure, 1908 :

C Order IX, Rule 13--Application for setting aside ex-parte decree--
Limitation-Suit for declaration aside of title and for possession-Defendant
residing in Malaysit~After one month of issue of summons suit ordered to
proceed ex-parte-Expmte decree passed-Defendant filing application for
setting aside ex-pmte decree, with a delay of 11 days---Cowts below rejecting
the application-'-lfeld, the trial cowt should have given sufficient time so that
D the defendant would have an opportunity to contest the suit-In the cir-
cumstances it would be legitimate to conclude that notice might not have been
served on him within the time-fvloreover, the application was filed through
power of attomey-Dismissal of the application set aside--&:-parte decree
also set aside--Matter would be adjudicated on merits.

E CIVIL APPELLATE JURISDICTION: Civil Appeal No. 13242 of
1996.

From the Judgment and Order dated 25.7.94 of the Punjab &
Haryana High Court in C.R. No. 311 of 1994.
F R.K. Jain Ms. Abha R. Sharma and Neeraj Jain for the Appellant.
t
P.P. Rao, Sanjay Bansal and G.K. Bansal for the Respondent.

The following Order of the Court was delivered :

G Leave granted.

We have heard learned counsel on both sides.

This appeal arises from the order of the learned single Judge of the
Punjab & Haryana High Court made on July 25, 1994 in C.R. No. 311/94.
H It is rather unfortunate that the brothers have to have a legal fight in
224
S.S. GREWAL v. H.S. GREWAL 225
respect of the property. We are not expressing any opinion on merits in A
the matter. Suffice it to state that the respondent filed Civil Suit No. 178/85
t on the file of the Trial Court for a declaration of title to the property as .
<
an owner and for po_ssession thereof. The said suit came to be filed on May
27, 1985. Pursuant to service of summons, on his sending through post his
written arguments in the matter from Malaysia on November 11, 1985, the
B
learned Sub-Judge, Ludhiana dismissed the suit. It would appear that
subsequently the respondent filed the present suit for declaration of his
title and that suit came to be decreed ex-parte on July 22, 1986. The
appellant filed an application on December 24, 1986 to set aside the
ex-parte decree which was dismissed. On appeal, it was confirmed and in
revision, the High Court declined to interfere. Thus, t!J!s appeal by special c
leave.

In is not in dispute that the tenant, Dr. Amrik Singh Sandhu filed an
application under Section 13 of the East Punjab Urban Rent. Restriction
Act against the respondent on August 22, 1986 wherein he had mentioned
D
that the suit filed by the respondent came to be decreed on July 22, 1986.
...,l This fact had come to the knowledg~ of the respondent on November 13,
1986 and immediately action was t~ken by seeking to setting aside the
ex-parte decree obtained by the respondent. Admittedly, the application
under Order IX, Rule 13 CPC came to be filed on December 24, 1986 with
delay of 11 days only. There was hardly any delay in filing the application. E
The question is: whether the appellant has shown sufficient cause for not
.
filing the application to set aside the ex-parte decree?

The admitted position is tfo1t the appellant is residing in Malaysia.
He was set ex-parte after one month after summons was sent in the suit to F
Malaysia. It is hardly expected to get summon served in Malaysia within
such a short period. The trial Court followed grammar of law but the Court
would have given sufficient long time so that the appellant would have an
opportunity to contest the suit. One important fact that cannot be lost sight
of is that in matters relating to the ownership of the property, each party ·
claims to be the owner of the property. On an earlier occasion, when an G
attempt was made by the respondent by seeking declaration of title and
• when the summons were served''on him, immediately, the appellant had
... sent his written statement contesting his claim. He would not stand to gain
·by remaining ex-parte. It would be clear from the above that normally if
one has received the notice, no one can expect that he would not contest H
226 SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A the suit or would remain ex-parte and would not allow ex-parte declaration
of title to be given against him. Under These circumstances, it would be
legitimate to conclude that notice might not have been served on him within
the time. On· coming to know of the ex-parte decree obtained by the
respondent against him on November 13, 1986, the appellant filed the
B application on December 24, 1986 through his Power of Attorney. One
would expert that unless the Attorney-holder communicated to the appel-
lant and got his instructions to file the application, it would not be possible
for him to proceed with the matter. Under these circumstances, the ap-
proach adopted by the courts below is clearly unjustified.

C The appeal is accordingly allowed. The dismissal of the application
under Order IX, Rule 13 CPC. stands set aside. The ex- parte decree is set
aside. It is open to the parties to have the matter adjudicated on merits.
No costs.

R.P. Appeal allowed.

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