Date of the Judgment: 25 January 2018
Citation: (2018) INSC 73
Judges: R.K. Agrawal, J., Abhay Manohar Sapre, J.
Can a court set aside an ex-parte decree against all defendants when only some of them applied for it? The Supreme Court of India addressed this procedural question in a case concerning the specific performance of a sale agreement. The Court found that the High Court was correct in ordering a retrial, but on different grounds. The bench consisted of Justice R.K. Agrawal and Justice Abhay Manohar Sapre, with the judgment authored by Justice Abhay Manohar Sapre.
Case Background
The case began when Jayaprakash and another (the appellants) filed a suit in the Court of Principal Sub-Judge, Kottayam, seeking specific performance of an agreement. This agreement, marked as Ex-A-1, involved the sale of certain properties by T.S. David and others (the respondents) for a total of Rs. 5,70,000. The appellants claimed that despite paying an advance, the original owners (defendant Nos. 1 and 2) failed to sell the properties as agreed and instead sold them to defendant Nos. 3 and 4. Consequently, the appellants sued all four defendants, seeking specific performance against the original owners.
Timeline
| Date | Event |
|---|---|
| 2001 | Appellants filed O.S. No. 337/2001 in the Court of Principal Sub-Judge, Kottayam, seeking specific performance. |
| 27.02.2004 | Trial Court passed an ex parte decree against all defendants. |
| 20.12.2005 | Trial Court allowed the application by defendant Nos. 3 and 4 to set aside the ex parte decree. |
| 20.02.2007 | Trial Court again decreed the suit against all four defendants. |
| 05.11.2014 | High Court allowed the appeal by defendant Nos. 3 and 4, setting aside the Trial Court’s decree and remanding the case for fresh trial. |
| 25.01.2018 | Supreme Court dismissed the appeal, upholding the remand order with additional grounds. |
Course of Proceedings
Initially, the defendants were served by substituted service, but they did not appear, leading to an ex parte decree against all of them on 27.02.2004. Subsequently, defendant Nos. 3 and 4 applied to set aside the ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure, 1908. The Trial Court allowed this application on 20.12.2005, setting aside the entire ex parte decree and restoring the suit. On remand, defendant Nos. 3 and 4 filed a written statement, while defendant Nos. 1 and 2 remained ex parte. The Trial Court again decreed the suit on 20.02.2007. Defendant Nos. 3 and 4 appealed to the High Court, which set aside the Trial Court’s decree and remanded the case for a fresh trial, leading to the current appeal before the Supreme Court.
Legal Framework
The case primarily revolves around Order 9 Rule 13 of the Code of Civil Procedure, 1908, which deals with setting aside ex parte decrees. The Supreme Court highlighted a crucial local amendment made by the State of Kerala to the first proviso of Order 9 Rule 13, which mandates that notice be given to all parties before setting aside an ex parte decree. The relevant portion of the provision is, “after notice to them”. This amendment requires that before an ex parte decree is set aside, all parties, including those who did not apply for the setting aside, must receive notice.
Arguments
The appellants (plaintiffs) argued that the High Court was not justified in remanding the case for a fresh trial. They contended that the Trial Court had correctly decreed the suit on merits after the ex parte decree was set aside. The respondents (defendant Nos. 3 and 4) supported the High Court’s decision, arguing that the Trial Court had not properly considered the issues.
| Main Submission | Sub-Submissions |
|---|---|
| Appellants (Plaintiffs) |
|
| Respondents (Defendant Nos. 3 & 4) |
|
Issues Framed by the Supreme Court
The main issue before the Supreme Court was:
- Whether the High Court was justified in remanding the case to the Trial Court for a de novo trial.
Treatment of the Issue by the Court
| Issue | Court’s Decision | Brief Reason |
|---|---|---|
| Whether the High Court was justified in remanding the case to the Trial Court for a de novo trial. | Yes, but on additional grounds. | The Trial Court failed to issue notice to defendant Nos. 1 and 2 before setting aside the ex parte decree and again after the suit was restored. |
Authorities
The Supreme Court did not cite any specific case laws in this judgment. However, it emphasized the importance of the local amendment to Order 9 Rule 13 of the Code of Civil Procedure, 1908, made by the State of Kerala, which mandates notice to all parties before setting aside an ex parte decree. The relevant legal provision is:
- Order 9 Rule 13 of the Code of Civil Procedure, 1908: Deals with setting aside ex parte decrees. The local amendment by the State of Kerala mandates that notice must be given to all parties before setting aside an ex parte decree.
| Authority | How it was considered by the Court |
|---|---|
| Order 9 Rule 13 of the Code of Civil Procedure, 1908 (with local amendment by the State of Kerala) | The Court relied on the local amendment to emphasize the procedural error by the Trial Court in not issuing notice to defendant Nos. 1 and 2. |
Judgment
| Submission | How it was treated by the Court |
|---|---|
| Appellants’ argument that the High Court was wrong to remand the case. | Rejected. The Court upheld the remand order but on different grounds. |
| Respondents’ argument that the Trial Court had not properly considered the issues. | Partially accepted. The Court did not address the merits of this argument but found procedural errors. |
The Supreme Court upheld the High Court’s decision to remand the case for a fresh trial but on different grounds. The Court noted two significant procedural errors by the Trial Court:
- Firstly, the Trial Court set aside the ex parte decree against all defendants, including defendant Nos. 1 and 2, even though only defendant Nos. 3 and 4 had applied for it. The Court noted that defendant Nos. 1 and 2 were entitled to notice as per the local amendment to Order 9 Rule 13 of the Code of Civil Procedure, 1908, which requires notice to all parties before setting aside an ex parte decree.
- Secondly, after the suit was restored, the Trial Court did not issue fresh notice to defendant Nos. 1 and 2. The Court emphasized that defendant Nos. 1 and 2 were entitled to a fresh notice of the suit once it was restored, regardless of their non-appearance in the first round of the trial.
The Supreme Court found these procedural lapses sufficient to justify the remand of the case for a fresh trial. The Court directed the Trial Court to issue fresh notices to defendant Nos. 1 and 2 by usual and substituted service, if necessary, and only after the service is complete, the Trial Court should proceed with the trial on merits. Defendant Nos. 3 and 4, already served, were not entitled to any further notice.
The Court also directed the parties to appear before the Trial Court on 05.02.2018 to enable the Trial Court to proceed with the trial expeditiously.
“In our view, defendant Nos. 1 and 2 were entitled to a notice of the proceedings under Order 9 Rule 13 of the Code in terms of local amendment made by the State of Kerala in the first proviso to Order 9 Rule 13, wherein the words “after notice to them” were inserted.”
“In our considered opinion, after the suit was restored at the instance of defendant Nos. 3 and 4, the Trial Court committed another error inasmuch as it again did not issue fresh notice of the suit to defendant Nos. 1 and 2.”
“The two legal infirmities noticed by us in the proceedings call for remand of the case to the Trial Court for fresh adjudication of the civil suit on merits in accordance with law.”
| Authority | Court’s View |
|---|---|
| Order 9 Rule 13 of the Code of Civil Procedure, 1908 (with local amendment by the State of Kerala) | The Court emphasized the importance of the local amendment, which mandates notice to all parties before setting aside an ex parte decree. The Trial Court erred by not following this procedure. |
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily driven by procedural fairness and adherence to the law. The Court emphasized that the local amendment to Order 9 Rule 13 of the Code of Civil Procedure, 1908, was crucial and that the Trial Court had failed to follow it. The Court was also concerned that defendant Nos. 1 and 2 were not given a fresh opportunity to present their case after the suit was restored. This focus on procedural correctness indicates that the Court prioritized ensuring that all parties had a fair chance to be heard, which is a fundamental principle of justice.
| Sentiment Analysis | Percentage |
|---|---|
| Procedural Fairness | 60% |
| Adherence to Law | 40% |
| Ratio | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
Key Takeaways
- Procedural Compliance: Courts must strictly adhere to procedural laws, especially those concerning notice to parties.
- Local Amendments: Local amendments to procedural laws are binding and must be followed.
- Fresh Notice: When a suit is restored after setting aside an ex parte decree, all defendants, even those who did not apply for setting aside, are entitled to fresh notice.
- Fair Opportunity: All parties must be given a fair opportunity to present their case.
Directions
The Supreme Court directed the Trial Court to:
- Issue fresh notice to defendant Nos. 1 and 2 by usual mode of service and then by substituted service, if needed.
- Proceed with the trial on merits only after the service of the suit is complete on defendant Nos. 1 and 2.
- Ensure the parties appear before the Trial Court on 05.02.2018.
Development of Law
The judgment reinforces the importance of procedural fairness and strict adherence to the rules of civil procedure. It clarifies that when an ex parte decree is set aside, all affected parties, including those who did not apply for setting aside, must be given notice. This is particularly relevant in jurisdictions with local amendments to procedural laws. The ratio decidendi is that procedural lapses in not issuing notice to all parties before setting aside ex parte decree and not issuing fresh notice after the suit is restored, are sufficient grounds to remand a case for fresh trial.
Conclusion
The Supreme Court dismissed the appeal, upholding the High Court’s remand order, but on different grounds. The Court emphasized the procedural errors committed by the Trial Court in not issuing notice to defendant Nos. 1 and 2, both before setting aside the ex parte decree and after restoring the suit. This judgment underscores the importance of procedural fairness and adherence to legal requirements in civil proceedings.
Category
Parent Category: Code of Civil Procedure, 1908
Child Category: Order 9 Rule 13, Code of Civil Procedure, 1908
Parent Category: Civil Procedure
Child Category: Ex Parte Decree
Parent Category: Court Procedure
Child Category: Remand
FAQ
Q: What is an ex parte decree?
A: An ex parte decree is a court order made in the absence of one of the parties, usually because they failed to appear in court despite being notified.
Q: What is Order 9 Rule 13 of the Code of Civil Procedure, 1908 about?
A: Order 9 Rule 13 of the Code of Civil Procedure, 1908, deals with the procedure for setting aside an ex parte decree. It specifies the conditions under which a court can set aside a decree passed against a party who did not appear.
Q: What did the Supreme Court decide in this case?
A: The Supreme Court upheld the High Court’s decision to remand the case for a fresh trial. However, it did so on the grounds that the Trial Court had committed procedural errors by not issuing notice to all defendants before setting aside the ex parte decree and by not issuing fresh notice after the suit was restored.
Q: What are the key takeaways from this judgment?
A: The key takeaways are that courts must strictly adhere to procedural laws, local amendments are binding, all parties are entitled to fresh notice when a suit is restored after setting aside an ex parte decree, and all parties must be given a fair opportunity to present their case.
Q: What should a person do if an ex parte decree is passed against them?
A: If an ex parte decree is passed against you, you should immediately apply to the court to set aside the decree. You must show sufficient cause for your non-appearance and follow the procedure prescribed under Order 9 Rule 13 of the Code of Civil Procedure, 1908.