A plaintiff challenged the trial court's order holding a defendant's Order IX Rule 13 petition to set aside a decree maintainable, arguing the decree was not ex parte since the defendant had participated. Relying on Supreme Court precedent, the High Court dismissed the writ petition.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 3962 OF 2018 (GM-CPC)
BETWEEN:
…PETITIONER
(BY SRI. S N BHAT.,ADVOCATE)
AND:
Digitally signed by PAVITHRA N Location: High Court of Karnataka
…RESPONDENT
(BY SRI. K N SUBBA REDDY.,ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 O THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER PASSED BY THE SENIOR CIVIL JDUGE AND JMFC, SHIDLAGATTA DATED 11.01.2018 IN MIS.PETITION NO.12/2014 [ANNEXUREG]FURTHER DISMISS THE PETITION FILED BY THE RESPONDENT UNDER ORDER IX RULE 13 OF THE CIVIL PROCEDURE CODE AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The petitioner being respondent in Misc.Petition.No.12 of 2014 on the file of the learned Senior Civil Judge and JMFC, Shidlagatta, is seeking grant of writ of certiorari to quash the order dated 11.01.2018 holding that Misc.petition is maintainable under Order IX Rule 13 of CPC.
Order IX Rule 13 of CPC seeking to set aside the ex-parte decree. Since the judgment and decree passed by the Trial Court in OS No.348 of 2007 was not an ex-parte decree, but it was contested by the defendant by participating in the proceedings, petitioner raised objection regarding maintainability of the petition. The Trial Court after considering the contention of the parties, passed the order dated 11.01.2018 holding that the Misc. Petition is maintainable. Being aggrieved by the same, the petitioner has preferred this writ petition.
NC: 2024:KHC:7067 WP No. 3962 of 2018
Chander Manchanda and Another v/s Janki Manchanda1 to contend that the Hon'ble Apex Court referred to Order 17 Rules 2 and 3 of CPC, in a similar situation, where the defendant had appeared and cross examined PW1, but failed to adduce his evidence. The Hon'ble Apex Court categorically held that the defendants will have option either to file an application under Order IX Rule 13 of CPC or to prefer an appeal. The said decision is aptly applicable to the facts of the case. Therefore, the Trial Court was right in holding that the Misc case is maintainable. There are no merits in the contention taken by the petitioner. Hence, he prays for dismissal of the petition.
1 (1986) 4 SCC 699
on which the writ petition was filed is that, since defendant had taken part in the proceedings before the Trial Court, even cross examined PW-1, the decree passed by the Trial Court was not an exparte decree and therefore, petition is not maintainable.
the decision in Rajendra Prasad Agrawal v/s Sheo Narain Sing, Patna High Court2 , to contend that when the party has appeared before the Trial Court, he cannot contend that the decree passed thereafter was an ex-parte decree.
"6.xxx
It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure. It is therefore clear that after this amendment in Order 17 Rules 2 and 3 of the Code of Civil Procedure there remains no doubt and therefore there is no possibility of any controversy. In this view of the matter it is clear that
2 AIR 2006 PATNA 37
when in the present case on October 30, 1985 the case was called nobody was present for the defendant. It is also clear that till that date the plaintiff's evidence has been recorded but no evidence for defendant was recorded. The defendant was only to begin on this date or an earlier date when the case was adjourned. It is therefore clear that up to the date i.e. October 30, 1985 when the trial court closed the case of defendant there was no evidence on record on behalf of the defendant. In this view of the matter therefore the explanation to Order 17 Rule 2 was not applicable at all. Apparently when the defendant was absent Order 17 Rule 2 only permitted the court to proceed to dispose of the matter in any one of the modes provided under Order 9.
7. It is also clear that Order 17 Rule 3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of defendant was closed nobody appeared for the defendant. In this view of the matter it could not be disputed that the court when proceeded to dispose of the suit on merits had committed an error. Unfortunately even on the review application, the learned trial court went on in the controversy about Order 17 Rules 2 and 3 which existed before the amendment and rejected the review application and on appeal, the High Court also unfortunately dismissed the appeal in limine by one word.
8. The learned counsel for the respondent attempted to contend that in this view of law as it now stands an application under Order 9 Rule 13 will be
maintainable. However it was suggested that there was also an objection of limitation about the acceptance of that application. It is apparent that the learned trial court has not considered the application on merits but has only rejected it as not maintainable and that order has been maintained. This objection of the learned counsel for the respondent is not necessary for us to go into at this stage as in view of the law discussed above, the order rejecting the application as not maintainable, has to be set aside and it will be open to the learned trial court to consider the application under Order 9 Rule 13 and dispose it of in accordance with that law and while so doing, it may even examine the objections that may be raised by the respondent."
he remained absent. By placing reliance on the decision of the Hon'ble Apex Court in Bhanu Kumar Jain v/s Archana Kumar and Another3 , I do not find any illegality and perversity in the order passed by the Trial Court. The parties are at liberty to put forth their contentions to consider the petition on merits. Hence, I do not find any merit in the petition.
Hence, the writ petition is dismissed.
Sd/JUDGE
SPV List No.: 1 Sl No.: 3
3 (2005) 1 SCC 787
1 issue framed by the court
Is a petition under Order IX Rule 13 CPC maintainable where the defendant appeared and cross-examined PW1 but failed to lead evidence before decree?
Colour shows how this judgement treated each authority
Prakash Chander Manchanda and Another v/s Janki ManchandaRelied on¶8
(1986) 4 SCC 699 · Who else cites this
Rajendra Prasad Agrawal v/s Sheo Narain Sing, Patna High CourtReferred
AIR 2006 PATNA 37 · Who else cites this
Bhanu Kumar Jain v/s Archana Kumar and AnotherRelied on¶10
(2005) 1 SCC 787 · Who else cites this
3 provisions across 2 enactments
M Nanja Reddy
Smt Lakshmamma
M G Uma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
