Mahabir Prasad vs Abhay Chandra Gupta and Others

B.P. Jha, J.—This civil revision petition is against an order of the appellate Court dated 8th December, 1981. The appellate Court affirmed the order of the trial Judge. Both the Courts below have refused to set aside an ex-parte decree passed on 28.1.1978.

In the present case, an ex-parte decree was obtained by opposite party No. 1 on 28.1.1978. The defendant-petitioner filed an application under Order 9, rule 13 of the CPC for setting aside the ex-parte decree. Order 9, rule 6 of the CPC provides that before a case is put for ex-parte hearing, the plaintiff is required to prove that the summons was duly served on the defendant. In other words, the Court gets jurisdiction to fix a case for ex-parte hearing, when it is proved by the plaintiff that summons was duly served on the defendant. In the present case, there is no finding of either of the Courts below that the date of ex-parte hearing of the suit was fixed after it was proved by the plaintiff that the summons had been duly served on the defendant. Therefore, without finding that the summons had been duly served on the defendant, to fix the date for ex-parte hearing of the suit was illegal and without jurisdiction, and as such, the ex-parte decree passed in the suit is also illegal and without jurisdiction. After the amendment of the CPC in 1976, before a suit is fixed for ex-parte hearing, the plaintiff is required to prove that summons had been duly served on the defendant. There is nothing on the record to suggest that the fact of service of summons on the defendant was proved before the date for ex-parte hearing of the suit was fixed by the trial Court. In view of this illegality, I allow the petition under order 9, rule 13 of the CPC filed by the petitioner and set aside the impugned orders passed by the Courts below. The trial Court is directed to try the suit in accordance with law after issue of notice to the parties concerned. In the result, the civil revision petition is allowed, the impugned orders passed by the Courts below are set aside and the trial Court is directed to try the suit in accordance with law. The parties shall bear their own costs.