2008 (4) TMI 823 - SC - Indian Laws

Summary

Issues Involved:
1. Non-service of notice to the appellant.
2. Interpretation and compliance of Rule 6 Chapter 13.
3. Representation by counsel and the appellant's interest in the proceedings.
4. Justification for the ex-parte decree.

Summary:

Non-service of notice to the appellant:
The appellant challenged the orders of the Delhi High Court and Additional District Judge, Tis Hazari Courts, Delhi, dismissing her application u/s Order IX Rule 13 of the Code of Civil Procedure. The appellant argued that she had no opportunity to participate in the proceedings as she was never served notice of the proceedings transferred from the Delhi High Court to the Additional District Judge, Delhi. The courts below failed to recognize that the appellant was not represented by the counsel who appeared for the original defendants 1, 2, and 4, and thus, notice served on that counsel was insufficient.

Interpretation and compliance of Rule 6 Chapter 13:
The courts below interpreted Rule 6 Chapter 13 to mean that only "interested parties" needed to be informed of the transfer and dates. However, the Supreme Court held that the Rule mandates informing all "parties" of the transfer and the date of appearance, without adding the qualifier "interested." The Rule is mandatory, and non-compliance with it invalidates the proceedings. The appellant was not informed of the transfer date, and the courts below erred in treating her as not required to be informed.

Representation by counsel and the appellant's interest in the proceedings:
The Supreme Court noted that the appellant was not represented by the counsel who appeared for defendants 1, 2, and 4. The Registrar and the Additional District Judge failed to ensure that the appellant was informed of the transfer and the dates. The courts below wrongly concluded that the appellant was not interested in defending the suit and that notice to the other defendants sufficed for her.

Justification for the ex-parte decree:
The Supreme Court found that the appellant was never served notice and had no opportunity to participate in the proceedings. The ex-parte decree was unjustified due to the lack of proper service. The courts below erred in rejecting the appellant's application u/s Order IX Rule 13 CPC. The non-service of notice was a sufficient reason to set aside the decree against the appellant.

Conclusion:
The Supreme Court set aside the orders of the courts below, allowed the application u/s Order IX Rule 13, and fixed the counsel's fee at Rs. 10,000/-.