Summary
The plaintiff obtained an ex parte decree declaring him owner of a BDA site at BTM Layout, Bangalore. The decree directed the appellant, the first defendant, to remove the structure he had built on it (said to be an occupied multi-storeyed building). The High Court dismissed the appellant's first appeal on merits, holding service could be questioned only in an application under Order IX Rule 13 CPC. The Supreme Court held that a defendant who has not applied under Order IX Rule 13 may, in a first appeal under Section 96, contend on the trial court record that the order to proceed ex parte was illegal, because Section 105 permits challenge to interlocutory orders affecting the decision. The bar in Bhanu Kumar Jain applies only after such an application is dismissed. The record showed no valid service, so the decree was set aside and the suit remanded, on costs of Rs. 2 lakh.
Issues
- Whether a defendant who did not apply under Order IX Rule 13 CPC can, in a first appeal against an ex parte decree, contend that the trial court wrongly proceeded ex parte for want of valid service of summons
- Whether summons was validly served where the first attempt failed because the premises were locked and the court then merely sent summons by registered post to the same address
Provisions considered
- Sections 96 and 105, and Order IX Rule 13 with Explanation, Code of Civil Procedure, 1908In an appeal against an ex parte decree, the defendant may show from the record that proceeding ex parte was illegal. He is barred from doing so only where an Order IX Rule 13 application has been dismissed, and he cannot lead evidence of sufficient cause in the appeal. (¶¶ 7, 8)
- Order V Rule 17, Code of Civil Procedure, 1908When the defendant's premises were found locked, the trial court should have directed affixture of the summons on the outer door. Sending it by registered post to the same unverified address did not justify proceeding ex parte. (¶ 9)
Held
- Under Bhanu Kumar Jain, a defendant against whom an ex parte decree is passed may pursue both an appeal and an application under Order IX Rule 13. Only if the application is dismissed is he barred from challenging, in the appeal, the order to proceed ex parte or from pleading sufficient cause. (¶ 7)
- Where no application under Order IX Rule 13 was filed, the defendant may, under Section 105, argue in a Section 96 appeal on the record of the suit that summons was not served or that the trial court was otherwise unjustified in proceeding ex parte, though he cannot lead fresh evidence of sufficient cause. (¶ 8)
- The record showed that the first attempt at service failed because the premises were locked. Without directing affixture under Order V Rule 17 or verifying the address, the court sent summons by post to the same address. There was no warrant for proceeding ex parte, and the decree for demolition of an occupied multi-storeyed building reinforced the need for remand. (¶¶ 9, 10)
Result
Appeal partly allowed. The decree and the High Court's judgment were set aside and the suit restored, subject to costs of Rs. 2 lakh payable by the appellant as a condition precedent. The written statement is to be filed within one month, with liberty to the plaintiff to implead the occupants.