Admitting receipt of summons alone does not defeat relief under Order IX Rule 13 CPC.

Jagadevi, the respondent in the revision and applicant before the Trial Court, sought under Order IX Rule 13 CPC to set aside an ex-parte judgment and decree dated 4 October 2023 in O.S. No. 143/2022. The suit concerned declaration, possession and injunction over property in Bidar

She asserted that she was residing with her son in Bengaluru due to health issues and had not received proper notice at her current address

The Trial Court condoned the delay and allowed the application subject to payment of costs of Rs.1,000

The petitioners challenged that order under Section 115 CPC, contending that Jagadevi had admitted receiving and signing the summons

The High Court noted that the Trial Court’s order sheet recorded an application for service by affixture, allowed on 21 October 2022; the summons were returnable on 30 January 2023, but the defendant was placed ex parte when the matter was called on 23 March 2023

1. Whether the Trial Court was justified in setting aside the ex-parte decree under Order IX Rule 13 CPC, having regard to the disputed service of summons and Jagadevi’s explanation for her non-appearance.

2. Whether the Trial Court’s order warranted interference in revision under Section 115 CPC.

Order IX Rule 13 CPC permits a court to set aside an ex-parte decree where the defendant establishes that summons was not duly served or that sufficient cause prevented appearance when the suit was called for hearing; the court may impose appropriate terms, including costs.

The provision also states that an ex-parte decree should not be set aside merely for an irregularity in service where the defendant had notice of the hearing date and sufficient time to appear.

The revision was brought under Section 115 CPC.

The High Court considered the admission concerning the summons alongside Jagadevi’s later denial of service and the Trial Court’s record of attempted service by affixture and the dates fixed for appearance.

It held that her having signed a summons did not, by itself, establish that she wilfully stayed away from the proceedings, particularly in light of her explanation that she was living with her son in Bengaluru because of health problems.

Given the circumstances recorded by the Trial Court, the High Court found that the Trial Court had properly exercised its discretion in allowing the application subject to costs.

It dismissed the Civil Revision Petition and confirmed the Trial Court’s order setting aside the ex-parte decree on payment of Rs.1,000 in costs.