JUDGMENT
1. In a suit instituted in 1970 protracting for about nine years with both the plaintiffs and the court hopefully but vainly waiting for the defendants to appear and contest the suit, an ex parte decree was ultimately passed on 13-1-1979. Appellant No. 1 joined by his three brothers attempted to get the decree set aside by an application under Order 9, Rule 13, Civil Procedure Code (in short ‘the Code’). Having failed, he along with the two non-applicants has filed this miscellaneous appeal.
2. The suit was instituted by one Deoki Singh for self and as guradian of his minor daughter for partition against his Sita Ram Singh, defendant No. 1 in the suit, on the plea that Sita had fallen in bad company, become wayward and was squandering away property. The plaintiffs impleaded Ful Kunari Devi, Deoki’s wife, as proforma defendant 2nd party and the transferees as proforma defendants 3rd party. Some other transferees from Sita Ram, including the applicants/ appellants were added as proforma defendants later, some of them were transferees prior to the institution of the suit while others transferees pendent lite. On the death of Deoki Singh Ful Kumari Devi was transposed as plaintiff 1st parly.
3. Sita Ram Singh filed written statement contesting the plaintiffs claim but did not persue the context. The transferees did not appear in the suit at all. In the circumstances, decree was passed ex parte on 13-1-1979.
4. On 30-1-1979 appellant No. 1 and his three brothers filed application for setting aside ex parte decree, registered as Miscellaneous Case No. 6 of 1979, stating-that summons had not been duly served upon them. They also stated that they learnt about the suit for the first time on 24-1-1979 and after getting the records etc. inspected and varified the application was being filed. The plaintiffs objected to the prayer stating that the summons had been duly served upon the applicants and that the suit had been decreed after a long wait during which the contest in
some interlocutory matters had been even taken to this court. In the proceeding the parties examined witnesses and brought certain documents on record. The court below by its impugned order disbelieved the applicants case on various grounds as stated in the order and rejected the prayer.
5. Mr. Indu Shekhar Prasad Sinha, learned counsel for the appellants submitted that where an ex parte decree is sought to be set aside under Order 9, Rule 13 of the Code on the ground of non-service of summons, source of knowledge of the decree or lack of cogent evidence on the point is not very material. The court has only to see whether there has been due service of summons or not and onus in such cases lies on the plaintiff. It was, accordingly, submitted that the court below has erred in law in drawing adverse inference from the fact that the applicants had failed to substantiate their case of acquisition of knowledge in the manner alleged. Order 9, Rule 13 reads as follows:–
“13. Setting aside decree ex parte against defendant. In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.”
The provision envisages two different situations. It provides for setting aside of ex parte
decree where summons have not been duly served on the defendant or where he is prevented by any sufficient cause from appearing when the suit is taken up for hearing. It is, however, not correct to say that in cases falling in the former category, like the present one, the non-appearing defendant is not required to disclose the source of knowlege or the manner in which he got the knowledge. Article 123 of the Limitation Act provides for a limitation of thirty days in making application for setting aside ex parte decree from “the date of decree or where summons or notice was not duly served, when the applicant had knowledge of the decree.” In other words, in cases falling in the second category, the limitation will run from the date of the (ex parte) decree while in cases failing in the first category, it will run from the date of decree. Thus, in such cases, enquiry on the question as to when and in what manner the applicant got knowledge about the suit and the decree is not only implicit but basis to the adjudication of the main issue, since it may in particular case, involve question of limitation.
6. The relevant pleading in this regard in the instant case, in paragraph 5 of the application, makes a very interesting reading and may be quoted verbatim:–
“That all on a sudden the applicants on
24-1-1979
learnt from
son of
of village
Thana
P.S.
District Begusari regarding the filing and disposal of the suit. The applicants learnt that on ex parte order has been passed on 13-1-1979. Before 24-1-1979 the applicants had no knowledge regarding the suit No. 51 of 70.
It is obvious from bare reading of the pleading that till the date of filing of the application i.e. 30-1-1979 the applicants did not ‘know’ as to from whom they got knowledge about the suit or the passing of the decree. It is obvious that till that date the applicants had not been able to find a reliable person who would be ready and willing to pledge has oath in support of their case, and were trying to find some such
person, which they ultimately found in RamBahadur Thakur (A.W. 1) Thus, while preparing the application the relevant particulars were left out as blank, as would be evident from the paragraph quoted above. This is an aspect, which, in our opinion, cannot be brushed aside lightly. In fact, this gives an idea as to the cavalier fashion in which the applicants/ appellants have been trying to get the ex parte decree set aside. As noticed above, the application was filed on behalf of appellant No. 1 and his three brothers but the instant appeal has been preferred by only one of them i.e. appellant No. 1 joined by two persons as co-appellants, who were never applicants in the court below. During course of hearing it also transpired that two appeals viz. F.A. No. 111 of 1980 and F.A. No. 28 of 1981 against the preliminary decree and final decree respectively passed in the suit have been preferred and are pending in this court. In F.A. No. 111 of 1980 the appellants are Salim Khan @ Salla and Jamil Khan, who are respondents in the instant appeal while in F.A. No. 28 of 1981 the appellants are 23 in number including Sita Ram Singh, the principle defendant. It is, thus, obvious that various defendants having shown enough negligence and carelessness during pendency of the suit started filing applications and appeals no sooner the ex parte decree was passed.
7. A feeling has grown amongst the litigants that ex parte decrees are liberally set aside, sometimes merely for asking because courts are averse to ex parte adjudication. There appears to be certain amount of wishful thinking that the defendants will not be penalised even though they may be guilty of negligence or carelessness. There was a time when suits used to be taken up within a short period of time whether on contest or otherwise and, therefore, when ex parte decrees were challenged either by application under Order 9, Rule 13 or by way of appeal arising from the order passed on such applications, the court used to be liberal. However, when it takes nine or more years to set down a suit for ex parte hearing, the consideration which weighed with the courts earlier can no longer be said to be relevant or at least just. It is high
time that such laxity on the part of the defendant is curbed with firmness and the courts and the litigants rise to the occasion. It should be kept in mind that even if ex parte decree is set aside, say after 22 years as in the instant case, and a re-trial is ordered, one does not know how many decades it will take for the suit to be decided on contest. In our opinion, such a course would work more injustice than justice.
8. The appellants are proforma defendants being transferees from Sita Ram Singh. No specific decree has been passed against them. Sita Ram Singh, the principal defendant against whom decree has been passed did not file any application for setting aside the the decree nor, as indicated above, he has preferred any appeal against the preliminary decree vide F. A. 111 of 1980. In other words, Sita Ram Singh is not the person aggrieved by the ex parte decre. By the decree the plaintiffs were allowed share to the extent of 12/27 in the suit property, the principal defendant having got the rest of the share. So far as the transferees are concerned, they do not and cannot claim any independent right. They can claim only under their vendor, namely, Sita Ram Singh. In other words they can claim equity not only in the proceeding arising out of the instant suit but also, if need be, by a separate suit against him. In Smt. Santosh Chopra v. Teja Singh, AIR 1977 Delhi 110 it was observed.
“It is clear that it is only the defendant in an action who can move an application under this provision of law. A person -who is not a party, though he may be interested in the suit, is not entitled to apply under this Rule. Indeed, even a person who is formally a party but against whom nothing is said in the operative portion of the decree or who has been expressly exempted from a decree cannot apply under this Rule to set aside an ex parte decree.”
Such being the position, the court should be rather circumstance in interfering with the ex parte decree at the instance of the transferees
when the principal defendant transferor has no grievance against the same. We hasten to add that our observation should not be
construed as laying down that transferees cannot maintain application under Order 9, Rule 13. However, it has to be kept in mind that the instant case is not one in which the principal defendant stopped taking interest in the litigation altogether, since as noticed above, he is one of the appellants in F:A. No. 28 of 1981.
9. On merits of the case, it would appear that the applicants examined 7 witnesses including appellant No. I himself as A.W. 2. Out of the rest A.W. 1 is Ram Bahadur Thakur, the alleged source of knowledge about the decree, the invisible man and of paragraph 5 of the application under Order 9, Rule 13 A.Ws. 3, 4 and 5 are formal witnesses, while A.Ws. 6 and 7 are other proforma defendants purchasers, who although did not file application of their own for setting aside the decree, supported the applicants claim. The essence of the provisions of Order 9, Rule 13 is that ex parte decree should be set aside generally and ordinarily only as against the persons making the application unless it is found that the decree is indivisible and it cannot be set aside against him alone. It is true that a decree for partition cannot be said to be divisible so that it can be set aside in part only. However, on the question of non-service of summons which in the very basis of such proceeding the fact that A.Ws. 6 and 7 did not join hands with the applicants nor filed any separate application cannot be ignored and in any view much weight can be given to their evidence so far as the plea of non service of summons upon the applicants appellant No. 1 is concerned. Thus, except the evidence of A.W. 2 i.e. appellant No. 1 himself, there is no other evidence on the point of non service of summons on the applicants. The other applicants did not examine themselves as witnesses.
10. Learned counsel for the appellants submitted that while deciding the application under Order 9, Rule 13 the onus of proof always lie on the plaintiff and the defendants appellants cannot be fastened with this onus. In our opinion the question as to whether there was due service of summons on the defendants applicants or not is a question
which can be decided on the basis of the records as primary evidence. Nothing was pointed out by learned counsel with reference to the records that there was no due service of summons on the applicants. In such a suitation, the question of onus of proof has little relevance.
11. Before we part with this order, we may mention that after we made observations during hearing of this case while continued for three days, applications were filed for transposition of certain respondents as appellants with liberty to them to join hands with the appellants in getting the ex parte decree set aside. Coming as they were at the fag end of hearing, there is no question of consideration of the prayer.
12. In our concluded opinion, this appeal is devoid of any merit and it is, accordingly, dismissed. We shall make no order as to costs.