MAHESH YADAV & ANR. versus RAJESHWAR SINGH & ORS.

Citation: [2008] 17 S.C.R. 726 · Decided: 16-12-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2008] 17 S.C.R. 726 
"""' 
A 
MAHESH YADAV & ANR. 
v. 
RAJESHWAR SINGH & ORS. 
'f 
(Civil Appeal No. 7316 of 2008) 
DECEMBER 16, 2008 
B 
'• 
[S. B. SINHA AND CYRIAC JOSEPH, JJ.] 
CODE OF CIVIL PROCEDURE, 1908: 
I 
Or. 9, r. 13, proviso - Setting aside of decree ex-parte 
~ 
c against some of the defendants - Trial court setting aside ex 
parte decree- High Court reversing order of trial court - Held: 
Proviso to r. 13 postulates that when an ex-parte decree has 
been passed a.gainst some of the defendants and it is 
necessary to set aside the :entire decree, they may file an 
D application to set aside ex-parte decree and court is not 
powerless in this regard - High Court was not correct in 
holding that because a joint written statement was filed, an 
application for ex-parte decree was not maintainable - Order 
-~. 
of High Court set aside - However, since the order of trial court 
is an unreasoned one and evidence led by defendant-
E applicants was not analysed for arriving at a finding as to 
whether a case for setting aside ex-parte decree has been 
made out or not, in exercise of jurisdiction under Article 142 
of the Constitution, order of trial court is also set aside - Matter 
remitted to trial court for consideration afresh on merits -
F Constitution of India, 1950 - Article 142. 
Or. 9 r. 13 - Setting aside of ex parte decree - Reasons 
)--
to be recorded - Held: An order setting aside an ex parte 
decree, being a judicial order should be supported by reasons 
- Evidence addu<}ed should be analysed for arriving at the 
conclusion .. 
G 
In a suit for possession, defendants nos. 2 and 5 
entered into a compromise with the plaintiff. Since the 
suit was decreed ex-parte against defendants nos. 1 and 
-r 
6, they, on coming to know of the ex-parte dec·ree, filed 
an application for ~etting aside the same. The.application 
':: -· 
H 
726 
r-
MAHESH YADAV & ANR. v. RAJESHWAR SINGH & ORS. 727 
was allowed. The plaintiff challenged the order in revision 
A 
~ 
before the High Court, which reversed the order of the 
trial court. Aggrieved, defendants 1 and 6 filed the instant 
appeal. 
Allowing the appeal, the Court 
HELD:1. There is nothing on record to show that the B 
appellants were being represented by the same advocate 
who represented the other defendants. If they were 
\ 
represented by different advocates, it is not known as to 
whether the order of transfer of the case was brought to 
the notice of the advocate for the appellants. The High c 
-
Court, therefore, may not be correct in holding that only 
because a joint written statement was filed, an application 
for ex-parte decree was not maintainable. In fact, the 
same was held to be maintainable by the trial court. [Para 
11] [732-D-E] 
b 
2.1. The proviso appended tor. 13 of Order 9 of the 
Code of Civil Procedure, 1908 postulates that when an 
ex-parte decree has been passed against some of the 
defendants and it is necessary to set aside the entire 
decree, the Court is not powerless to do so. When an ex-
E 
parte decree is passed, the defendant may have more 
than one remedies which include filing of an application 
under. Order IX Rule 13. The judgment of the High Court, 
therefore, is not sustainable. [Para 13 and 14] [733-B-D] 
Bhanu Kumar Jain v. Archana Kumar & Anr. (2005) 1 
F 
sec 787, relied on. 
3. The Court expresses its dissatisfaction in the 
manner in which the trial court has passed the order 
impugned be.fore the High Court. The said order is an 
unreasoned one. The evidence adduced on behalf of the G 
appellants was not analysed for arriving at a finding as 
to whether a case for setting aside an ex- parte decree 
.···~· 
has been made or n()t. The matter was not considered as 
--4 
is required in terms of Order IX Rule 13. An order·setting 
aside the ex-parte decree being a judicial order should 
H 
....... 
728 
SUPREME COURT REPORTS 
[2008] 17 S.C.R. 
A have been supported by reasons. The trial court could 
not have allowed the said application without following 
the legal principles on the basis whereof such an order 
could be passed. This Court, in exercise of jurisdiction 
under Article 142 of the Constitution of India, while setting 
8 aside the order passed by the High Court also sets aside 
the order passed by the trial court. The matter is remitted 
to the trial court for consideration afresh on merits. [Para 
14] [733-G-H; 734-A-B] 
Case Law Reference: 
c 
(2005) 1 sec 787 
- relied on 
para 13 
D 
E 
CIVIL APPELLATE

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