The present appeal assails the correctness of judgment and order dated 27.06.2018 passed by the 2 learned Single Judge of the Bombay High Court in Civil Writ Petition
No 1488 of 2015 titled “ Maharashtra State Electricity Board vs Miraj Electric Supply Co.
The Trial Court, on 04.12.2004, directed for suit to proceed under Order XVII Rule 2 of CPC against the defendants. Thereafter the Trial Court proceeded to record the evidence of the plaintiff and, vide judgement and order dated 29.01.2005, decreed the suit ex parte with costs. Thereafter, the Trial Court vide order dated 30.09.2014, allowed the application under Order IX Rule 13 CPC, set aside the ex parte decree dated 29.01.2005 while imposing fine of Rs.
The High Court, by the impugned order dated 12.01.2015, allowed the Writ Petition, set aside the order dated 30.09.2014. The petition was allowed on the ground that the application under Order IX Rule 13 CPC would not be maintainable in as much as the High Court had applied the explanation under Order XVII Rule 2 CPC. According to him, the order passed by the Trial Court decreeing the suit ex parte and the earlier order dated 04.12.2004 was only an order under 7 Order XVII Rule 2 CPC and not under the explanation as the explanation would not be applicable.
Also Read: https://newslaw.in/supreme-court/challenge-to-state-governments-directive-for-cadre-merger/
On 25.01.2019, this Court being satisfied that 50% of the suit claim had been deposited before the Trial Court, directed that the Trial Court would invest the said amount in a Fixed Deposit initially for a period of six months in a Nationalized Bank with automatic renewal.
Explanation.- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.”
It would also be relevant to reproduce Order IX Rule 13 which reads as follows: “ 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 10 against such defendant only it may be set aside as against all or any of the other defendants also: Explanation-
Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposal of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule of setting aside the ex parte decree.” A plain reading of Order IX Rule 13 makes it apparent that where in a case, a decree is passed ex parte against defendant, a party may apply to the Court for setting aside the same for reasons satisfying the Court regarding non-appearance. Coming back to Order IX CPC, it is to be noticed that under Rule 6 thereof where summons are duly served and the defendant does not appear when the suit is called on for 12 hearing, then the Court may make an order that the suit be heard ex parte. Now coming to the explanation, what is stated therein is that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court would be at liberty to proceed with the case as if such party were present. The explanation in the present case could have been invoked only if the plaintiff, after adducing his evidence or substantial evidence, failed to appear, the 14 Court could have recorded his presence while disposing of the suit.
Further, the Trial Court, in its wisdom and discretion having allowed the application under Order IX Rule 13 CPC, the High 15 Court ought to have refrained itself from interfering with an order which advanced the cause of justice by affording opportunities to both the parties so that the suit could be decided on merits.
Whereas 30%, along with accrued interest thereon, may be returned to the appellant within four weeks of the date of filing of this 17 order before the Trial Court along with an application for return of amount as directed above.
Case Title: Y.P. LELE Vs. MAHARASHTRA STATE ELECTRICITY DISTRIBUTION COMPANY LTD (2023INSC732)
Case Number: C.A. No.-005155-005155 / 2023
