Summary
The Supreme Court upheld remand of a specific-performance suit for fresh trial because two defendants had not received required notice. The Kerala amendment to Order IX Rule 13 entitled them to notice before the entire ex parte decree was set aside at the instance of other defendants. They were also entitled to fresh suit notice after restoration despite their earlier non-appearance. Trial could resume on merits only after proper service on them; the other two defendants needed no fresh notice.
Issues
- Whether failure to notify non-applicant defendants before setting aside the entire decree and after restoration justified a fresh trial.
Held
- Under the Kerala amendment adding “after notice to them” to the first proviso of Order IX Rule 13, defendants Nos. 1 and 2 required notice before setting aside the entire decree on the application of Nos. 3 and 4. Absence of such notice was an irregularity even though restoration benefited them. (¶¶ 16, 17)
- Once the whole suit was restored, defendants Nos. 1 and 2 were entitled to fresh suit notice despite earlier non-appearance. Again decreeing the suit against them without that notice was a further error. These additional grounds justified the High Court’s remand. (¶¶ 18, 19, 20)
- The trial court must use ordinary service and, if necessary, substituted service, and proceed only after service on Nos. 1 and 2 is complete. Nos. 3 and 4 were already served and required no new notice. The parties were directed to appear on 5 February 2018 for expeditious trial on merits. (¶¶ 22, 23, 24)
Result
Appeal dismissed; remand for fresh trial upheld on the identified notice defects. Fresh service on defendants Nos. 1 and 2 required before trial resumes.