Case Law Details
Y.P. Lele Vs Maharashtra State Electricity Distribution Company Ltd. & Ors (Supreme Court of India)
Conclusion: In present facts of the case, it was observed that an application under Order IX Rule 13 of Civil Procedure Code for setting aside exparte decree would be maintainable as evidence of the defendants was not even started and the defendants’ counsel had not even cross-examined the plaintiff’s evidence.
Facts: In present facts of the case, the appeal assails the correctness of judgment and order dated 27.06.2018 passed by the learned Single Judge of the Bombay High Court in Civil Writ Petition No. 1488 of 2015 titled “Maharashtra State Electricity Board vs. Miraj Electric Supply Co. Ltd. Ors.”, whereby the petition was allowed, the order dated 30.09.2014 passed by the Trial Court allowing the application under order IX Rule 13 of the Code of Civil Procedure, 19081 was set aside and the ex parte decree was maintained.
In the said case, the Respondent filed Special Civil Suit in the Court of Civil Judge, Senior Division for recovery of Rs. 1,42,85,177.47/- with costs of suit and further praying for interest at the rate of 18% per annum from the date of presentation of the suit till realisation of the aforesaid amount. The defendants appeared and filed their written statements. The plaintiff’s evidence was being led and at that stage the counsel for the defendants withdrew his Vakalatnama. He had also not cross-examined the witnesses. The Trial Court, on 04.12.2004, directed for suit to proceed under Order XVII Rule 2 of CPC against the defendants. Thereafter the Trial Court proceeded to record the evidence of the plaintiff and, vide judgement and order dated 29.01.2005, decreed the suit ex parte with costs.
The defendants, on coming to know of the ex parte decree, belatedly filed an application under Order IX Rule 13 CPC accompanied by an application for condonation of delay under Section 5 of the Limitation Act, 1963 on 21.09.2006. The Trial Court, vide order dated 20.09.2010, allowed the application finding the explanation to be satisfactory for the delay. Thereafter, the Trial Court vide order dated 30.09.2014, allowed the application under Order IX Rule 13 CPC, set aside the ex parte decree dated 29.01.2005 while imposing fine of Rs. 1,000/- and restored the Special Civil Suit No. 125 of 1988 to its original number. The plaintiff-MSEB preferred a Writ Petition before the High Court under Articles 226 and 227 of the Constitution. The High Court, by the impugned order dated 12.01.2015, allowed the Writ Petition, set aside the order dated 30.09.2014. As a result, the suit of the respondent-MSEB stood decreed ex parte. The petition was allowed on the ground that the application under Order IX Rule 13 CPC would not be maintainable in as much as the High Court had applied the explanation under Order XVII Rule 2 CPC.
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