Ex parte Decree

Under Rule 4 of Order XXXVII, Code of Civil Procedure, 1908, ('C.P.C.') "under special circumstances" the court can set aside the decree

Rule 4 is subject to the condition there must be 'special circumstances' to support any application for setting aside decree

Plain reading of Rule 4 makes it diaphanous that it excludes 'ordinary circumstance' or 'circumstances which may happen every day'

Meaning thereby that heavy burden lies on the defendant to show the circumstances due to which he was unable to appear during proceedings of the suit

'special circumstances' are different from 'ordinary circumstance' and 'circumstance which may happen every day', rather the same are rare, exceptional and beyond the control of a human being

Same can be categorized as: 1) Serious illness or accident preventing defendant's appearance; 2) Death or sudden incapacitation of defendant's counsel; 3) Natural calamity or unforeseen events; 4) Mistake or error apparent on the face of the record. 5) Failure of justice due to non-service or inadequate service.

All available modes of service were adhered to by the Trial Court so that the petitioner (defendant) should join the proceedings and after failure in ordinary means of service, the Trial Court resorted to publication of Court notice in newspaper but even then the petitioner did not bother to join the proceedings, therefore, he was proceeded against ex parte on 18.02.2022

Even the order dated 09.06.2022 goes to divulge that after closure of ex parte evidence, the Trial Court kept the file of the case in wait but none on behalf of the petitioner joined the proceedings and ultimately the Trial Court proceeded to pass the ex parte judgment and decree dated 09.06.2022

After lapse of about 19 months, the petitioner filed application seeking setting aside of ex parte judgment and decree dated 09.06.2022 and not the order dated 18.02.2022 when he was proceeded against ex parte, that too, without filing an application for leave to appear and defend the suit, which otherwise ought to have been filed along-with the application for setting aside ex-parte proceedings, judgment and decree, because proceedings under Order XXXVII of Code of Civil Procedure, 1908 ('C.P.C.') are of summary nature and special procedure has been provided for the same

Rule 4 of O. XXXVII, C.P.C. deals with the situation where the defendant fails to appear and files application for leave to defend; however, in the instant case, no application for leave to appear and defend was filed by the petitioner and only application seeking setting aside of ex parte judgment and decree, but not the order for initiating ex parte proceedings, was filed.

Suit filed by respondent/ plaintiff for possession of suit land through pre-emption was decreed ex parte against petitioners/defendants

Validity

Conduct of petitioners/ defendants was not only dilatory and negligent but the same was also contumacious

Petitioners/defendants failed to give any sufficient cause for not pursuing suit or for filing application for setting aside ex parte judgment and decree after considerable delay

Law helps the vigilant and not the indolent

Petitioners / defendants had been employing devious and dilatory tactics therefore, delinquency on their part was not only very much conspicuous but the same was also unexplained

High Court in exercise of Constitutional jurisdiction under Art. 199 of the Constitution, declined to interfere in the judgment and decree passed by Trial Court, as such jurisdiction was discretionary and equitable in nature

Constitutional petition was dismissed in circumstances.

Judgment debtor/Appellant's application for setting aside ex parte judgment and decree of Banking Court and initiating proceedings under S. 476, Cr.P.C. accordingly

Scope

Appellant had impugned the order of Banking Court whereby its application under S. 476, Cr.P.C. for initiation of action under Chapter XXII of the Cr.P.C. was dismissed

Contention of Appellant/judgment-debtor was that Banking Court was required to take cognizance of the procedure provided for in Cr.P.C. in view of purported forgery of documents committed by the Bank, which documents formed basis of judgment of Banking Court

Validity

Appellant's application for seeking setting aside of ex parte decree under S. 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 was dismissed against which he filed no appeal and thus the decree had attained finality, which finality also extended to documents forming basis of judgment and decree of the Banking Court

Appellant could not now be allowed to make collateral attack to a conclusive judgment of Banking Court when his application under S. 12 of Financial Institutions (Recovery of Finances) Ordinance, 2001 read with S. 12(2), C.P.C. was dismissed

Appellant was therefore estopped from questioning legality of such documents and any determination thereof otherwise could not be made in terms of principle of res judicata

Application of the appellant under S. 476, Cr.P.C. was therefore not maintainable as nothing necessitated initiation of action under Chapter XXII of the Cr.P.C.

Appeal was dismissed, in circumstances.

Oral agreement was to be pleaded in the suit with full details i.e. specific date, time and place of agreement between the parties and witnesses of the same as well as earnest money paid under the said agreement

Necessary pleadings in the present case were missing

Filing of application under O. IX, R. 13 read with Ss. 12(2) & 151, C.P.C. was in continuation of proceedings of the suit

Defendant would be bound by the judgment and orders passed upon the said application

Seller, in the present case, sold suit property having ex-parte decree which was subsequently set aside

No defect had been pointed out in the impugned judgments and decrees passed by the Courts below

Revision was dismissed in limine. [Paras. 4 & 5 of the judgment]

Petitioner/defendant contended that ex parte decree passed against him was liable to be set aside as he was not properly served and he was unaware of the proceedings before the Family Court

Validity

Order V, R. 20 of C.P.C. empowered the Court to adopt procedure of substituted service, when all efforts were made to effect the service upon the defendant in the ordinary course

In the present case, there was nothing on record which could show that the petitioner was avoiding service of summons upon him or he could not be found for any reason

Petitioner could not be said, in the circumstances that he was keeping away for the purpose of avoiding service, or that he could not be found for any reason

Family Court before making order for publication of notice in press, did not order affixation of a copy of summons at some conspicuous part of the house or place of business of the petitioner

Proper procedure was not adopted by the Family Court, therefore, publication of notice in the daily newspaper could not be considered as effectual service of notice upon the petitioner

Petitioner had established that he was unaware about the proceedings before the Court

High Court set aside the judgments and decrees passed by the two courts below by virtue of which the application of the petitioner to set aside ex parte decree was dismissed

Case was remanded to the Family Court for proceedings afresh to the extent of recovery of dowry articles

Constitutional petition was disposed of accordingly.

Petitioner (husband) applied for setting aside ex parte decree and filed application under S.12(2), C.P.C. (which was subsequently withdrawn) alleging that his wrong address had been mentioned in the plaint and that ex parte decree was obtained through fraud as he had no knowledge of the proceedings before Family Court and both the courts below had wrongly refused his application for setting aside ex parte decree

Validity

Address of the petitioner on record was the same as given in his application under S.12(2), C.P.C. and the appeal and he was duly served

No plausible reason had been shown by the petitioner for his non-appearance before the court in his application for setting aside ex parte decree

Petitioner had not controverted the receipt of registered post in his applications for setting aside ex parte decree and under S.12(2), C.P.C. as well as in appeal

Application for setting aside ex parte decree was filed after lapse of one year, which was time barred and therefore the same had rightly not been considered by the courts below

Record showed that petitioner had never paid any maintenance to the wife and minors and had contracted second marriage while the first wife along with her minor daughters were living with her parents

Petitioner had not fulfilled his obligations towards his first wife as well as daughters

No illegality or infirmity having been noticed, constitutional petition was dismissed in limine.

Petitioner(defendant) contended that his application to set aside the ex parte judgment and decree should have been accepted

Validity

Record revealed that the petitioner maintained in his application to set aside ex parte judgment and decree that he had paid Rs.70,000/-, which fact denoted that the petitioner had accepted the validity of the judgment and decree being satisfied

Petitioner had submitted application for setting aside ex parte judgment and decree and record manifested that he had actively participated in the proceedings in question

Petitioner in his constitutional petition had challenged the order passed by Executing Court which was an interlocutory/interim order

When the Legislature had specifically prohibited the filing of appeal or revision against an interim order and if the constitutional petition was allowed to be filed against said order, that would tantamount to defeating the intent of the legislature

Petitioner had adequate remedy available to him by challenging impugned order in appeal which, he might file against the ultimate order/judgment if the same would be against him

No illegality or irregularity having been noticed in the impugned order passed by the Family/Executing Court

Constitutional petition was dismissed accordingly.

Petitioner contended that he was unaware of the proceedings before Family Court and that he had appeared before the Family Court wherein his defence was struck off for non-deposit of ad interim maintenance allowance of the minor

Record showed that suit was filed by the respondent in the year 2007 which was partly decreed to the extent to grant of Khula and later the suit was decreed and execution application, filed in the year 2013, was ultimately allowed by the Family Court after eight years of filing the suit

Perusal of the counter affidavit by respondent revealed that she had categorically denied the contention of the petitioner regarding his unawareness about the proceedings

Record revealed that petitioner appeared before the Family Court with his counsel on several dates and filed his written statement and was also present at the time of pre-trial proceedings between the parties, thus the petitioner was aware about the proceedings of the suit right from its inception

Contention of the petitioner, therefore, was patently absurd, which adversely reflected upon his conduct, who by filing the application to delay the satisfaction of the decree, and to deprive his ex-wife and his son of the fruits of decree, which included right of maintenance of the said minor

No illegality or infirmity having been found in the impugned order, constitutional petition was dismissed accordingly.

Husband (petitioner) contended that wife (respondent) had obtained Khula through court by ex parte evidence which was based on mis-appreciation of law and facts

Respondent contended that petitioner lived abroad who had turned her out from his house fifteen years back

Validity

Requirement of law was to be satisfied that the spouses could not live as husband and wife within the limits prescribed by Allah Almighty

Maintaining limits ordained by Allah by husband and wife

Scope

Limits prescribed by Allah would mean the directions regarding happy social life

In the present case, respondent (wife) through ex parte evidence proved her case that petitioner (husband) had failed to provide maintenance to her and the children for the last 15 years and also had turned her out from his house

Fact that husband and wife had lived separately for a long time without maintenance could be a strong factor to assess as to whether the spouses could live together within the limits ordained by Allah

Family Court had rightly reached to conclusion in favour of grant of Khula on consideration, inter alia, of such factors

Constitutional petition was dismissed accordingly.

Petitioners contended that under Art. 156 of the Limitation Act, 1908 period of limitation for setting aside an ex-parte decree would be reckoned from the date of drawing decree sheet

Respondent/decree holder contended that application of petitioners to set aside ex-parte decree was time barred

Validity

Principle envisaged under Art. 164 of Limitation Act, 1908 was that the period for filing an application to set aside an ex-parte decree by a defendant, would be 30 days and same would be reckoned from the date of decree or where the summons was not duly served then from the date of knowledge of the decree of the applicant

In the present case, predecessor in interest of petitioners, was not only served in accordance with law, but one of the present petitioners also appeared but did not contest the suit, thereafter, case was remanded by High Court

Admitted fact alleged by petitioners themselves was that they had been litigating inter se the same property, whereby, same decree had obtained and did not opt to contest the suit

Act and omission of petitioners spoke loudly that they were vigilant with regard to the matter being sub-judice before a competent court of law

Contention of petitioners that the formal decree sheet had been drawn up at later stage and the period of limitation would be reckoned from the date of signing formal decree sheet was misconceived

Limitation provided under Art. 156 of the Limitation Act, 1908 for the propose of appeal, the principle could not be extended to an application under O. IX, R. 13, C.P.C., as in filing appeal a copy of decree and judgment was mandatory to be annexed with the memorandum of appeal and without filing attested copy of decree, appeal could not be treated as competent

No such provision existed to the effect that copy of decree would be annexed with application under O. IX, R. 13, C.P.C. by defendant to set aside an ex-parte decree

No time was prescribed for signing a decree, in view of O. XX R. 7, C.P.C. the decree would bear the date, the day on which the judgment was pronounced

Defendant, irrespective of the fact that whether any decree had been drawn up in accordance with O. XX, R. 6, C.P.C., would move application for setting aside ex-parte decree within prescribed period under Art. 164 of Limitation Act, 1908 and would not wait till formal decree was drawn up, as it was not the requirement of law, to annex attested copy of the decree with application under O. IX R. 13, C.P.C.

As far as the date of decree was concerned, irrespective of the fact, when the decree was signed, it would be construed to have been signed on the day the judgment was pronounced and the period of limitation would be reckoned for the purpose of application under O. IX R. 13, C.P.C., from the date of decree and not from the date of formal drawing up the decree sheet

Parties to the suit, in the present case, were close relatives, therefore, it could not be presumed that they were not aware of the suit

Moreover, predecessor in interest of petitioners was present in the High Court when case was remanded

Application of the petitioners under O. IX R. 13, C.P.C., was time barred by a delay of more or less than seven years

Revision petition was dismissed accordingly.

Time of limitation for an application to set aside an ex parte decree was thirty days that would start running from date of knowledge

If the court was on vacation for days more than time of limitation such appeal would be filed on opening day, any further delay of each day would be explained

When an appeal was returned to be submitted before appropriate forum and it was presented again after prescribed time of limitation but no plausible explanation to delay was made, such appeal was dismissed being time barred.

Ex parte decree had the same effect as a contested decree with the exception that the modes and mechanism for the setting aside of such decree may be more.

Remedies available against ex parte decree were: an application under O.IX, R.13, C.P.C.; review application under S.114(f) read with O.XLVII, R.1, C.P.C.; appeal under S.96, C.P.C.; application under S.12, C.P.C. and application for re-hearing the matter on the ground of violation of principles of natural justice and inherent powers of court might also be attracted or writ petition might lie.

Before passing an ex parte decree, it was duty of the court to see whether party had prima facie proved the case by cogent and convincing evidence and to consider the interest of absent party by applying mind properly to the facts of the case.

Defendant (husband) having failed to appear before the Trial Court, ex parte proceedings were ordered against him and after recording evidence, ex parte decree was passed in favour of the plaintiff (wife)

Application for condonation of delay in filing application, which under R.13 of Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, was 30 days, was filed after 3-1/2 months, which was time-barred

Azad Jammu and Kashmir Family Courts Act, 1993, was a special law, which had provided limitation under the Rules and there was no concept of condonation of delay under R.13 of the said Rules

In presence of clear provisions in the special law, the provisions of S.5 of the Limitation Act, 1908, were not applicable to the proceedings before the Family Court

Application for condonation of delay being time-barred, was rightly dismissed, in circumstances.

Suit had been filed against defendant company through its Project Manager, who was dealing with the matters at place 'B', meaning thereby the sub-office of the company in the shape of Project Manager was available at place 'B'

Defendant had not denied the appearance in the court by its representatives

Application for setting aside ex parte decree filed by the defendant under O.IX, R.13, C.P.C. and S.12(2), C.P.C. could not be pressed into service simultaneously

Defendant could choose any one of those as those were self-contradictory

Objections taken by the defendant in the High Court had not been taken before the lower courts

Defendant (petitioner) had not come to the High Court with clean hands as his counsel who also appeared in the lower courts, had taken the stand that persons who appeared on behalf of the defendant in lower courts were not authorized

Constitutional petition was dismissed in circumstances.

Trial Court proceeded ex parte against defendant and passed preliminary decree on the basis of decree passed in a foreign country and allowed sale of property for which there was an agreement to create a mortgage

Validity

Nothing was available on file to show that United Arab Emirates was reciprocating territory within the meaning of Explanation 2 to S.44-A, C.P.C.

Fact of reciprocating territory was to be notified by Federal Government in official gazette declaring reciprocating territory as such

In absence of any such notification, a foreign judgment could not be treated as a conclusive in the matter within the meaning of S.13, C.P.C.

Judgment passed by court in Dubai and the decree granted there, unless same was established by way of separate suit in terms of S.13, C. P. C., could not be executed in Pakistan

Trial Court also committed another illegality while decreeing the suit by presuming the agreement to create mortgage which was in fact a mortgage deed

Such agreement manifested that it was an executory document which did not attain the form of mortgage deed

Only mortgages created in forms provided under S.58 and onwards of Transfer of Property Act, 1882, were enforceable through court

High Court set aside judgment and decree passed by Trial Court and case was remanded for deciding the same afresh after providing opportunity to defendant to contest the same on merits

Appeal was allowed in circumstances.

Notice was issued by trial Court to defendant to appear for onward legal proceedings and upon failure of the defendant, to appear, proclamation notice was issued, but despite that defendant again failed to get leave from the court to defend suit

Trial Court, on account of repeated absence of defendant, passed on ex parte decree in favour of plaintiff, which was challenged by the defendant/judgment debtor submitting application for setting aside the ex parte decree

Pro note on basis of which suit was filed, was duly scribed between the parties in the year 2003 and on account of repeated absence of defendant, decree was passed in 2006

Execution of said decree and procurement of defendant was a debatable question for the court; which clearly inferred that defendant by any means, was trying to delay the execution proceedings to deprive the plaintiff/decree­-holder from usufruct of decree since long ago passed in his favour; and a handsome portion of the decretal amount had been deposited through attachment

Petition being meritless and having no substance, was dismissed

Decree-holder/plaintiff was allowed to withdraw the decretal amount already deposited in the court, according to law.

Application for setting aside said ex parte decree was submitted beyond the prescribed period of limitation; and without any plausible and sufficient explanation

No illegality was committed by the two courts below while dismissing application for setting aside ex parte decree

Such aspect of the case did not require any indulgence of High Court within the purview of S.115, C.P.C. and no exception could be taken to said findings.

On date fixed for hearing, defendant having been found absent, she was proceeded against ex parte and ex parte decree was passed by the Trial Court against her

When said decree was put to execution, the defendant submitted application before the Trial Court for setting aside the same but Trial Court rejected said application and appeal filed against rejection order, having also been rejected, defendant had filed revision petition

Prescribed period of limitation for setting aside ex parte decree under Art.164 of Limitation Act, 1908, was one month, but the defendant filed said application beyond the said prescribed period, however, after defendant was proceeded against ex parte, case was posted for recording ex parte evidence of the plaintiff and before said decree could be passed, the main suit was transferred to another court

Transferee Court instead of issuing fresh notices to the defendant, observed that the defendant was already placed ex parte

After transfer of the case to another court, it was the legal duty of the Transferee Court to serve the absent defendant once again, even in the presence of the order for ex parte proceedings against the defendant and the same would not deprive the defendant of a right to receive such notice

Defendant had fully succeeded to make out a case of indulgence of High Court within the purview of S.115, C.P.C.

Even otherwise, the defendant being a "parda nasheen" lady had a special right of being heard on merits in support of her respective legal rights, coupled with the fact that law would favour adjudication on merits

Impugned judgments and orders including the ex parte decree, were set aside with direction to the Trial Court to give proper opportunity to the defendant in defending her cause, in the light of defence set up by her in her written statement.

Filing of two affidavits-Defendant sought setting aside of ex parte decree on the ground that process was served on incorrect addresses

Defendant filed two different affidavits to substantiate the plea of incorrect address, one affidavit contained address on which process was serve. 4 and the other was different-Effect-Defendant had filed two separate affidavits with two separate addresses without any explanation-One of the two affidavits was false and defendant had exposed himself to criminal liability in that behalf

Assertion of alleged incorrectness of address on which service was effected was an after-thought, motivated not by truth but by change of Advocate-Defendant was served on 19-5-2006, therefore, he had the knowledge of proceedings of ex parte decree on the date of service of notice under O.XXI, R.66, C.P.C. and first application under S.12 of Financial Institutions (Recovery of Finances) Ordinance, 2001, was filed on 19-6-2006, well beyond the period of 21 days from the date of knowledge prescribed by the law-Application for setting aside ex parte decree was not only without merit but was also barred by limitation, therefore, High Court declined to interfere in ex parte decree passed against defendant-Application was dismissed in circumstances.

Controversy between the parties could only be resolved after framing issues and recording the evidence.

Defendants, absence of Plaintiff alleged that defendants were infringing his trade mark by using the same or other colour scheme, design and get up-Suit filed by plaintiff was verified on oath who had also filed his affidavit supported with certain documents in support of his claim

Defendants neither came forward to contest the claim of plaintiff though attempt to serve them was made twice first in year, 2005 and thereafter in the year, 2009, when the case was remanded in appeal but no one turned up to contest the suit-Effect-Contention of plaintiff had gone unrebutted and unchallenged

No material was placed on record as to damages suffered by plaintiff, therefore High Court declined to pass decree to the extent of damages

Suit was decreed accordingly.

Every court including a court established under a special enactment would always be competent to take cognizance of any fraud, misrepresentation or lack of jurisdiction in respect of matter pending before or decided by such court

Such application was competent before Banking Court.

Defendant having failed to appear despite issuance of notice to him; he was proceeded ex parte and ex parte decree was passed against him

Defendant being aggrieved of that order, had filed constitutional petition

Suit which was filed before Nazim, Union Council, showed that defendant was resident of Tehsil 'M' while the plaintiffs were residents of Tehsil `H'

From the address even which was displayed and entered by the plaintiff himself, it was evident that both the parties were not residents of the same Union Council

Nazim or Conciliation Court of Union Council at place `H' had no jurisdiction to entertain and adjudicate the suit

Regarding contention that remedy of appeal being available, direct constitutional petition was not competent and could not be entertained, it could be said that availing of remedy of appeal was not necessary, because the High Court had got jurisdiction to entertain the suit which had stemmed out from such judgment and decree which had been passed without jurisdiction

Constitutional petition, in circumstance, could be entertained directly

Moreover, at the stage when the constitutional petition had been admitted for regular hearing, defendants could not be directed to file appeal

Judgments and decrees of the Conciliation Court, were set aside, in circumstances.

Plaintiff produced original promissory note, legal notice, postal receipt, application forms for allotment of flat signed by defendant and sub-lease of flats

Defendant had chosen to remain absent and failed to appear in Court and to obtain leave to defend the suit, as provided under O.XX VII, R.2 (2) C.P.C.

Effect

Allegation of plaintiff was deemed to be admitted and he was entitled to decree

Suit was based on promissory note which was negotiable instrument and presumption was that same had been issued against consideration and defendant had not come forward to rebut such presumption

High Court decreed suit in the sum claimed with interest at 6% per annum in accordance with Ss.79 and 80 of Negotiable Instruments Act, 1881, from the date of suit till date of decree

High Court also awarded interest at the rate of 10% per annum from date of decree till the date when payment was realized in accordance with S.34 C.P.C.

Suit was decreed accordingly.

Extensive chances were given to defendant to produce his defence but he failed to appear before Court to contest the matter

Documents annexed with plaint as well as exhibited at the time of cross-examination had also gone unchallenged due to non,-appearance of defendant

Effect

By not filing written statement, defendant failed to refute and negate facts narrated in plaint as well as pointed out at the time of hearing arguments

Documents produced by plaintiff and facts narrated in memo. of plaint had gone unrebutted and unchallenged, therefore, plaintiff successfully proved his case

Contentions stated in memo. of plaint and affidavit in evidence were in support to each other, hence plaintiff was entitled for relief claimed by him in the suit

As plaintiff failed to produce any substantial material on record in support of his claim of damages and mesne profit, therefore, the same was declined

Suit was decreed accordingly.

Despite several opportunities afforded to defendants to appear before court and contest the suit, they failed or avoided to appear before the court and were declared ex parte

Effect

In absence of any defence, court had no option but to accept claim of plaintiff that he booked suit property from defendants and had paid Rs.4,76,500 out of total sum of Rs. 5,76,000

Fact regarding payments made to defendants had been confirmed from receipts annexed with memo of plaint

Such fact was also admitted by one of the defendants in its letter issued to plaintiff for cancellation of allotment

Court directed plaintiff to deposit balance consideration amount with its Nazir, who would execute sale-deed and sign all documents in respect of transfer of suit property and to record statement on behalf of defendants before Sub-Registrar concerned, in favour of plaintiff

Suit was decreed accordingly.

Despite several opportunities afforded to defendants to appear before court and contest the suit, they failed or avoided to appear before the court and were declared ex parte

Effect

In absence of any defence, 'court had no option but to accept claim of plaintiff that he purchased suit property from defendant vide sale agreement and had paid full consideration

High Court directed the Nazir of this Court to execute sale deed and sign all documents in respect of transfer of suit property and to record statement on behalf of defendants before Sub-Registrar concerned, in favour of plaintiff

Suit was decreed accordingly.

Defendants challenged said ex parte judgment and decree through a regular suit on the ground of fraud and deception and filed written statement and prayed for rejection of the plaint on the ground that a regular suit for setting aside an ex parte judgment and decree being not competent under S.12(2), C.P.C. the plaint was liable to be rejected under R.11, Order VII, C.P.C.

Said suit was also resisted on the ground of limitation

Plaintiffs filed another application for treating the suit as an application under S.12(2), C.P.C. and on alternative they requested that the suit could be treated as application under S.151, C.P.C.

Trial Court after hearing the parties on that application, declined the conversion of the proceedings as were requested and rejected the plaint under O.VII, R.11, C.P.C.

Validity

Court had inherent jurisdiction to convert one kind of proceedings into another and a party alleged to have obtained the decree or judgment from the court, playing fraud and deception, should not be allowed to reap the fruits of its fraud because fraud vitiated the most solemn proceedings

Appeal was accepted and application filed on behalf of the defendants/appellants herein, for treating the suit as an application under S.12(2), C.P.C. was granted

Trial Court was directed to proceed in the matter in accordance with law.

On date fixed for filing amended written statement neither defendant had appeared nor any written statement was submitted by him

Suit was decreed ex parte

Application filed by the defendant for setting aside ex parte decree having concurrently, been dismissed by the courts below, applicant filed revision before the Chief Court, which also having been dismissed, defendant had filed petition for leave to appeal

Validity

Equity and justice demanded that when an applicant would take plea regarding his absence and disappearance, court was under bounden duty to give complete opportunity to him to substantiate his plea as to why he failed to appear on the date fixed

Applicant, in circumstances must have been provided sufficient opportunity to adduce oral or documentary evidence, in order to convince and satisfy the court to his stance taken, whether the absence was wilful, intentional or due to unavoidable circumstances, beyond his control

Party would not be ousted mere on technical anomalies

Case had to be looked into from every angle within the four corners of law

Strictly in the large interest of dispensation of justice, deciding the case simply after hearing the arguments of the parties, was not a legal and justifiable approach, party who took the stand, must be provided with an opportunity to prove his case through solid evidence

If commonly question could not be resolved and the court was unable to settle the case, the solid and cogent material was to be required

In the case, the record indicated that the applicant for setting aside ex parte decree was decided by the Trial Court after hearing the argument on both sides and no opportunity was given to defendant/petitioner to prove as to why he remained absent for so long time; secondly whether he was really in the down country; if so, why he left the proceedings un-attended evidence to convince and satisfy the court

Accepting petition, ex parte decree was set aside and case was remanded to Trial Court for deciding the application for setting aside the decree after providing the opportunity of evidence to both the parties.

Application under S.5, Limitation Act, 1908 for condonation of delay was filed with the revision petition, alleging the publication of notices in a daily of limited circulation and that the plaintiffs were not served nor the notice was sent by post

Court found that at one stage plaintiffs had filed an application under O. VII, R. 10, C. P. C. seeking return of the application filed by defendants under S.12(2), C.P.C. and thus they were aware of the pendency of the proceedings which was also clear from the averments, made both in revision petition and application under S.5, Limitation Act, 1908

Power under S.5 of the Limitation Act, 1908 to condone delay in filing revision petition was not available

Delay, in circumstances, was not condoned and application and revision petition were dismissed.

While passing ex-parte decree, it is the duty of court to see whether plaintiff is entitled to relief asked for and if so to what extent.

Contention having been supported by affidavit of the defendant, High Court considered that the defendant was deprived of his right of hearing

Judgment and decree passed against the defendant ex parte was set aside in circumstances.

if order passing decree was void or without jurisdiction appropriate remedy available to judgment-debtor was to have judgment modified.

Ss. 6 & 22-Ex parte decree-Court cannot pass ex parte decree without application of mind to facts and law of case-Hakim ordering ex parte proceedings under S. 6, held, riot competent to pass ex parte decree himself

Ex parte proceedings not outside ambit of S. 22.

No ground for separate suit for setting aside decree-Fraud alleged to vacate decree must he actual and positive, relating to Court proceedings or premeditated and intentional to procure decree.

Ex parte Decree - Compromise decree - Binding on parties and operates as estoppel-Civil Procedure Code (V of 1908), O. XXIII, r. 3.

Decree-Ex-parte decree-Obtained by fraud-Non-service of summons on defendants-When can be held to be fraudulent so as to constitute a ground for setting aside ex-parte decree.