2022 (8) TMI 1551 - HC - Indian Laws

Prayer for recalling or setting aside of the ex-parte decree - Order IX Rule 13 of the Code of Civil Procedure, 1908 - prayer for an order of injunction restraining the plaintiff to proceed in complaint which has been filed pursuant to the ex-parte decree passed by this Court - HELD THAT - The respondent/plaintiff moved an amendment application dated July 10, 2018 seeking amendment of the plaint (being G.A. No. 1908 of 2018 in C.S. 205 of 2017), the service of the amendment application was returned with the endorsement item delivery attempted addressee moved . The amendment application was henceforth allowed by this Court on September 13, 2018 and that the original writ of summons of the amended plaint and one duplicate copy of the writ of summons along with one copy of plaint was despatched through the office of the Sheriff on October 09, 2018 to the learned District Judge, Raipur. However, the Sheriff's office did not receive back the original writ of summons or any service report from the said Court. Whereas, the service made through Speed Post with A/D was returned and received by the office of the Sheriff on November 12, 2018 with the endorsement undelivered packet marked insufficient address . Whereas, an attempt for service of the writ of summons along with copy of plaint was made by the Sheriff's office through Learned District Judge, Raipur on February 12, 2019, and the same was returned with remarks as could not be served upon the petitioner/defendant Company due to non-existence at stated address . Therefore, as it is evident from the facts above, the petitioner/defendant company could not be served the amended plaint and the writ of summons of such plaint each time - From the Chapter IX Rule 3 of the Rules of the High Court at Calcutta (Original Side), 1914, it is patently clear that the instant suit could not have been transferred to the peremptory list of undefended suits by suppressing the material fact that the service of writ of summons and the plaint were pending and consequently incomplete. From the materials on record, it is apparent that the petitioner/defendant could not be served through the Court with the original plaint, the amended plaint and the writ of summons of the amended plaint as it was not present in the address as mentioned in the service. This is also buttressed by the fact that that the petitioner/defendant gathered knowledge about the pendency of this instant suit only when it received a reply dated March 26, 2019 from respondent/plaintiff's advocate in response to its legal notice dated March 18, 2019 invoking Section 11 of the Arbitration and Conciliation Act, 1996. Therefore, it would be correct to state that all the service were being made to the incorrect address and/or insufficient address denying the petitioner/defendant the basic right to present and defend its case. The original plaint, the amended plaint as well the writ of summons for the amended plaint could not be duly served upon the petitioner/defendant company, and consequently, the petitioner/defendant was prevented from appearing in the instant suit. In addition to this, an order to transfer this suit to undefended list was secured from this Court by way of suppression of material facts. There has been an abuse of process of Court on part of the respondent/plaintiff to have suppressed the said material facts to secure transfer of the instant suit to the undefended list. This application seeking the recalling/setting aside of the ex-parte decree in C.S. No. 205 of 2017 dated June 12, 2019 is hereby allowed.

Issues Involved:

1. Whether the ex-parte decree dated June 12, 2019, should be set aside under Order IX Rule 13 of the Code of Civil Procedure, 1908.
2. Whether the summons were duly served upon the defendant.
3. Whether there was suppression of material facts by the plaintiff.
4. Whether the plaintiff committed fraud by not informing the court about the change of address of the defendant.
5. Whether the transfer of the suit to the undefended list was justified.

Detailed Analysis:

1. Setting Aside the Ex-Parte Decree:

The primary issue was whether the ex-parte decree should be set aside under Order IX Rule 13 of the CPC. The court noted that under this provision, an ex-parte decree can be set aside if the summons were not duly served or if the defendant was prevented by sufficient cause from appearing. The court emphasized that the defendant must demonstrate either condition to warrant setting aside the decree.

2. Service of Summons:

The court examined whether the summons were duly served on the defendant. The evidence showed that attempts to serve the writ of summons through the District Judge, Raipur, and via speed post were unsuccessful. The Deputy Sheriff's report indicated that the premises were vacated by the defendant three years prior, and the speed post was marked "refused" or "insufficient address." The court found that the summons were not duly served as the defendant had moved to a new address, which was not updated in the court records.

3. Suppression of Material Facts:

The court considered whether the plaintiff suppressed material facts. It was observed that the plaintiff failed to disclose the change of the defendant's address, which was a material fact. The court cited the principle of uberrima fides, requiring litigants to approach the court with clean hands and disclose all relevant facts. The suppression of the defendant's new address was deemed a material omission that impacted the merits of the case.

4. Alleged Fraud by Plaintiff:

The defendant argued that the plaintiff committed fraud by not informing the court about the change of address. The court found merit in this argument, noting that the plaintiff was aware of the new address but did not amend the plaint accordingly. The court held that the plaintiff's actions amounted to an abuse of process and deliberate fraud, as they failed to ensure the defendant was properly notified of the proceedings.

5. Transfer to Undefended List:

The court scrutinized the transfer of the suit to the undefended list. It was noted that the suit was transferred despite the pending service of the writ of summons and plaint. The court highlighted that such transfer was improper, given the incomplete service. The rules of the High Court at Calcutta (Original Side) were cited, indicating that a suit should not be transferred to the undefended list without proper service.

Conclusion:

The court concluded that the ex-parte decree dated June 12, 2019, should be set aside due to the improper service of summons and the suppression of material facts by the plaintiff. The application to recall the decree was allowed, and the defendant was directed to file a written statement within 45 days. The court emphasized that the plaintiff's conduct in securing the transfer of the suit to the undefended list was an abuse of process, and the defendant was denied the opportunity to defend its case due to the plaintiff's actions.

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