Exparte decree – Interplay of Order IX Rule 13 & Explanation to Rule 2 of Order XVII of CPC

Ex parte decree – Interplay of Order IX Rule 13 & Explanation to Rule 2 of Order XVII of CPC

Interesting facts unfolded in the judgment dated 16.8.2023 of the Supreme Court of India for study of law students and consideration of the Advocates.

Respondent – Board filed Special Civil Suit No.125 of 1988 against Miraj Electric Supply Co. Ltd and others including the appellant – original defendant no.5 for recovery of Rs.1,42,85,177.47 ps.

The defendants filed the written statement.   The Advocate of the defendants did not cross-examine the witnesses but he withdrew his Vakalatnama.

On 4.12.2004, the trial Court directed the suit to proceed under Order XVII Rule 2 of CPC against the defendants.

Thereafter, the trial Court recorded the evidence of the plaintiff and ex parte decreed the suit vide judgment dated 29.1.2005.

On coming to know of the ex parte decree, on 21.9.2006, the application under Order IX Rule 13 with delay condonation application was made.

On 20.9.2010, the trial Court condoned the application for delay.

On 30.9.2014, the trial Court allowed the application under Order IX Rule 13 of CPC, set-aside the ex parte decree and restored the suit to the file.

 However, the writ petition filed by the respondent was allowed vide order dated 12.1.2015 on the ground that the application under O.IX R.9 of CPC was not maintainable.  The High Court applied the explanation to Rule 2 of Order XVII of CPC.

HELD that as a matter of fact, once the counsel had withdrawn Vakalatnama, in normal course, the trial Court ought to have issued notice to the defendants to engage another counsel, which was not done and proceeded ex parte.  The trial Court committed an error.  Moreover, once the defendant had not led any evidence, the explanation to Rule 2 of Order XVII of CPC could not have been invoked.  The High Court ought to have refrained itself from interfering with the order which advanced cause of justice by affording opportunity to both the parties for decision of suit on merits.

 Y.P.Lele Vs. Maharashtra State Electricity Distribution Co Ltd and Others Civil Appeal No. 5155 of 2023