1957 (4) TMI 86 - HC - Indian Laws

Court sets aside ex parte decree, orders expedited trial. Defendant to pay costs. Duty to inform parties of hearing dates clarified.

The High Court allowed the revision, setting aside the ex parte decree and ordering the case to be expedited in the trial court. The defendant was ... Duty of the Court to inform parties of adjourned or refixed dates of hearing - validity of substituted service for the purpose of proceeding ex parte and review under Order IX Rule 13 - computation of limitation under Article 164 where proceedings are interrupted by stay or remand - proviso to Order IX Rule 13 and wilful neglect - setting aside of ex parte decree for want of effective service - remand for rehearing and interim protection of possessionDuty of the Court to inform parties of adjourned or refixed dates of hearing - computation of limitation under Article 164 where proceedings are interrupted by stay or remand - Duty of the trial Court to inform parties of the date fixed for hearing after a case is sent back from a superior Court and effect of interruption on the meaning of 'summons' in Article 164. - HELD THAT: - Where a suit has been stayed and the record is later sent back by a superior Court, the first date on which the case again starts after remand assumes the character of the first hearing for purposes of informing parties. It is part of the duty of the Court, when a date is fixed or an adjourned date is to be observed, to communicate that date to the parties or their legal representatives; absent such communication a party not informed will not be bound by subsequent proceedings. Consequently, where hearing is interrupted by stay or remand, the ordinary rule that the initial summons suffices for Article 164 does not necessarily apply; the period for seeking relief under Article 164 runs from the defendant's knowledge of the decree where the defendant was not duly informed of the refixed hearing date after remand. [Paras 8, 9]The Court held that after remand the trial Court was under a duty to inform the parties of the date of hearing; interruption by remand affects the operation of Article 164 and limitation runs from the defendant's knowledge if he was not informed.Validity of substituted service for the purpose of proceeding ex parte and review under Order IX Rule 13 - setting aside of ex parte decree for want of effective service - Whether substituted service effected in this case precluded inquiry under Order IX Rule 13 into adequacy of service and whether the ex parte decree could be set aside. - HELD THAT: - Although substituted service may enable the trial Court to proceed as if personal service had been effected, it does not oust the jurisdiction of a Court entertaining an application under Order IX Rule 13 to inquire into whether the substituted service was proper or calculated to inform the defendant. A defendant who later appears may show that the mode of substituted service employed did not effectuate actual notice; if the Court concludes that service was not due, the defendant's right to seek setting aside of an ex parte decree is preserved and limitation under Article 164 is to be computed from the date of the defendant's knowledge of the decree. The Full Bench authority that substituted service leaves open later inquiry under Order IX Rule 13 was applied. [Paras 12]The Court affirmed that substituted service does not preclude a later enquiry under Order IX Rule 13 into adequacy of service and that an ex parte decree may be set aside if service was not duly effected.Proviso to Order IX Rule 13 and wilful neglect - computation of limitation under Article 164 where proceedings are interrupted by stay or remand - Whether the defendant's failure to know the refixed hearing date amounted to wilful neglect so as to invoke the proviso to Order IX Rule 13 and bar relief. - HELD THAT: - On the facts the record was returned to the trial Court after a prolonged interval and the ultimate hearing and decree occurred several months thereafter. The defendant's counsel had been ill and died; there was uncontradicted testimony that the defendant did not know the refixed hearing date and first learned of the decree by telegram. Given the absence of any obligation on the defendant to make daily inquiries and the lack of evidence of willful neglect, the proviso to Order IX Rule 13 (which denies setting aside merely for irregularity in service if the defendant knew or, but for wilful conduct, would have known the date in time) does not apply. [Paras 14, 15]The Court found no wilful neglect by the defendant and held that the proviso to Order IX Rule 13 was inapplicable; therefore the defendant was entitled to have the ex parte decree set aside if service was not duly effected.Setting aside of ex parte decree for want of effective service - remand for rehearing and interim protection of possession - Whether the ex parte decree should be set aside for illegality and material irregularity and what interim protective measure, if any, should be ordered in respect of possession already taken under the decree. - HELD THAT: - Applying the principles that the Court must inform parties of refixed dates after remand, that substituted service may be reviewed under Order IX Rule 13, and that no wilful neglect was established, the appellate and trial Courts' refusal to restore the defendant was found to be tainted by material irregularity. The High Court, exercising revisional jurisdiction, set aside the ex parte decree and remanded the suit to the trial Court for fresh hearing on merits. Recognising the long pendency and that possession had been taken pursuant to the ex parte decree, the Court ordered that the plaintiffs' possession obtained by virtue of the ex parte decree should continue undisturbed until final decree, and conditioned restoration on payment of costs by the applicant within a specified period. [Paras 20, 21]The ex parte decree was set aside for illegality and material irregularity; the suit is remanded for rehearing, with plaintiffs' present possession protected until final disposal and restoration subject to payment of costs within the time ordered.Final Conclusion: Revision allowed; ex parte decree set aside for illegality and material irregularity because the trial Court failed to inform parties of the refixed hearing date after remand and substituted service was not shown to have given effective notice; suit remanded to the trial Court for rehearing on merits, plaintiffs' possession under the ex parte decree protected until final decree, and restoration made conditional on payment of costs within the period directed. Issues Involved:1. Refusal to set aside an ex parte decree.2. Jurisdiction and material irregularity.3. Service of summons and substituted service.4. Duty of the Court to inform the parties of the hearing date.5. Limitation under Article 164, Limitation Act.6. Wilful neglect or default by the defendant.7. Possession and execution of the decree.Detailed Analysis:1. Refusal to Set Aside an Ex Parte Decree:The defendant filed an application to set aside an ex parte decree, arguing he was unaware of the proceedings and not properly served notice of the hearing date. The lower courts dismissed this application, prompting the defendant to seek revision from the High Court.2. Jurisdiction and Material Irregularity:The High Court examined whether the lower courts' jurisdiction was tainted by material irregularity or illegality. It was noted that if the court failed to inform the parties of the hearing date after the case was remanded by the High Court, it constituted a material irregularity.3. Service of Summons and Substituted Service:The defendant contended that he was not served notice of the hearing date. The court discussed the validity of substituted service, emphasizing that while substituted service is generally deemed sufficient, the court can review its effectiveness under Order 9, Rule 13. The court referred to a Full Bench decision stating that substituted service does not prevent the court from determining whether the service was effective.4. Duty of the Court to Inform the Parties of the Hearing Date:The court highlighted the principle that it is the court's duty to inform the parties of the hearing date, especially after a case is remanded. This aligns with the principles of natural justice and was supported by past judgments, such as Durga Prasad v. Het Ram.5. Limitation under Article 164, Limitation Act:The plaintiffs argued that the application to set aside the ex parte decree was barred by limitation under Article 164. The court clarified that if there was an interruption in the hearing due to a stay order, the limitation period would start from the date the defendant became aware of the decree.6. Wilful Neglect or Default by the Defendant:The court found no evidence of wilful neglect or default by the defendant. It was noted that the defendant's counsel had fallen ill and died, which could explain the lack of enquiry about the hearing date. The court concluded that the defendant did not know the hearing date and was not guilty of wilful neglect.7. Possession and Execution of the Decree:Despite setting aside the ex parte decree, the court ordered that the plaintiffs' possession of the property, obtained through the ex parte decree, should not be disturbed until a final decree is passed by the Munsif. If the plaintiffs' suit is decreed again, possession remains with them; if dismissed, the defendant can seek possession.Conclusion:The High Court allowed the revision, set aside the ex parte decree, and ordered the case to be decided expeditiously by the trial court. The defendant was required to pay Rs. 50/- as costs to the plaintiffs within three months, failing which the revision application would stand dismissed.