2018 (1) TMI 1536 - SC - Indian Laws

Suit for specific performance - ex parte decree in terms of Section 96(2) of the Code of Civil Procedure - HELD THAT - A Defendant against whom an ex-parte decree is passed has two options The first is to file an appeal. The second is to file an application Under Order IX Rule 13. The Defendant can take recourse to both the proceedings simultaneously. The right of appeal is not taken away by filing an application Under Order IX Rule 13. But if the appeal is dismissed as a result of which the ex-parte decree merges with the order of the Appellate Court, a petition Under Order IX Rule 13 would not be maintainable. When an application Under Order IX Rule 13 is dismissed, the remedy of the Defendant is Under Order XLIII Rule 1. However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal Under Section 96. In the present case, the original Defendant chose a remedy of first appeal Under Section 96 and was able to establish before the High Court, adequate grounds for setting aside the judgment and decree. There are no reason to interfere with the judgment and order of the High Court - appeal dismissed.

Summary

Issues:
- Suit for specific performance
- Validity of substituted service
- High Court's findings on the service of summons
- Interpretation of Order V Rule 20
- Applicability of Bhanu Kumar Jain case

Analysis:

1. Suit for Specific Performance:
The case involved a suit for specific performance of an agreement for agricultural land. The High Court set aside the ex-parte judgment and order of the Civil Judge, Senior Division, at Nagpur, which had decreed the suit. The Appellant filed the suit after the original Defendant's daughter claimed fraud and misrepresentation in the agreement, stating that the land was ancestral property.

2. Validity of Substituted Service:
The Trial Court allowed substituted service by publication in a newspaper due to the Defendant's unavailability. However, the High Court found faults in the process, stating that the Trial Court failed to follow the requirements of Order V Rule 20. The High Court highlighted the necessity of proper service to inform the party of the proceedings in due time.

3. High Court's Findings on the Service of Summons:
The High Court observed that the Trial Court's order permitting substituted service was cryptic and did not indicate that the Defendant was avoiding service. It noted that the bailiff's report did not show proper steps were taken for service. The High Court emphasized the importance of strictly following the provisions of the Code of Civil Procedure for service.

4. Interpretation of Order V Rule 20:
The Appellant argued that Order V Rule 20 allowed for service by publication in a newspaper without the need for physical affixation of summons. However, the High Court disagreed, emphasizing the importance of fulfilling all requirements of the law for proper service.

5. Applicability of Bhanu Kumar Jain Case:
The Supreme Court cited the Bhanu Kumar Jain case, highlighting the grounds for appeal against an ex-parte decree. It clarified that a Defendant has the option to file an appeal or an application Under Order IX Rule 13. The original Defendant chose a first appeal Under Section 96 and successfully demonstrated grounds for setting aside the judgment and decree.

In conclusion, the Supreme Court upheld the High Court's judgment, dismissing the appeal. The Court found no reason to interfere with the High Court's decision, emphasizing the importance of proper service and adherence to legal procedures in such cases.