“TEHAROONCHAND v/s M/s SUGARMULL NAGARMULL AIR 1984

CAL 82”

A Project submitted in partial fulfilment of the course Code of Civil

Procedure , 5th SEMESTER during the Academic Year 2020-2021

SUBMITTED BY:
Rishabh Sinha
Roll No. - 2034
B.B.A., LL.B.(Hons.)

SUBMITTED TO:
Dr. Meeta Mohini
FACULTY OF CPC & LIMITATION ACT

OCTOBER ,2020
CHANAKYA NATIONAL LAW UNIVERSITY, NAYAYA NAGAR,
MEETHAPUR, PATNA-800001
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A. ,LL.B. (Hons.) Project Report entitled “
TEHAROONCHAND V M/s SUGARMULL NAGARMULL” submitted at Chanakya
National Law University; Patna is an authentic record of my work carried out under the
supervision of Dr. Meeta Mohini . I have not submitted this work elsewhere for any other
degree or diploma. I am fully responsible for the contents of my Project Report.

(Signature of the Candidate)

Rishabh Sinha
Chanakya National Law University, Patna
 ACKNOWLEDGEMENT

“IF YOU WANT TO WALK FAST GO ALONE

IF YOU WANT TO WALK FAR GO TOGETHER”
A project is a joint endeavour which is to be accomplished with utmost compassion, diligence
and with support of all. Gratitude is a noble response of one‟s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my
heart to all those who have helped me to put these ideas, well above the level of simplicity
and into something concrete effectively and moreover on time.
This project would not have been completed without combined effort of my revered CPC &
LIMITATION ACT Faculty Dr. Meeta Mohini whose support and guidance was the driving
force to successfully complete this project. I express my heartfelt gratitude to her. Thanks are
also due to my parents, family, siblings, my dear friends and all those who helped me in this
project in any way. Last but not the least; I would like to express my sincere gratitude to our
Faculty for providing us with such a golden opportunity to showcase our talents. Moreover,
thanks to all those who helped me in any way be it words, presence, encouragement or
blessings...

- Rishabh Sinha
- 5th Semester
- B.B.A., LL.B.(Hons
 TABLE OF CONTENTS

Declaration…………………………………………………………………………………….i

Acknowledgement…………………………………………………………………………….ii

Table of Contents…………………………………………………………....……………….iii

Aims and Objectives……………………………………………………………………….…iv

Hypothesis.................................................................................................................................iv

Research Methodology......................................................................................................…...iv

1. Facts

2. Provisions of CPC dealt in the case

3. Additional Provisions dealt

4. Issues before the court

5. Final Judgement

6. Conclusion

Bibliography
 AIMS AND OBJECTIVES

The Aims and Objectives of this project are:

1. The researcher tends to analyze and understand the various aspects of the case and
throw light upon them.
2. The researcher tends to analyze and understand the concept of Order IX Rule
13,Order V Rule 20.
3. The researcher tends to study the provisions of CPC with Limitation act.

RESEARCH QUESTIONS

Q1) What is the significance of this case?

Q2) What provisions of the law were applied in this case?
Q3) What was the judgement of this case?

RESEARCH METHODOLOGY

For this study, doctrinal research method was utilised. Various articles, e-articles, reports and
books from library were used extensively in framing all the data and figures in appropriate
form, essential for this study.
The method used in writing this research is primarily analytical.
 FACTS

Petitioner Teh-roonchand's application (Misc. Case No. 17 of 1981) under Order 9, Rule 13 of
the Civil P. C. (hereinafter referred to as the 'Code') for setting aside the ex parte decree in Title
Suit No. 264 of 1978 was dismissed by the learned Munsif, 2nd Court, Alipore on Aug. 31,
1982, The appeal (Misc. Appeal No. 545 of 1982) pre-ferred by the petitioner was dismissed by
the learned Additional District Judge, 4th Court, Alipore on Feb. 12, 1983. Being aggrieved, the
petitioner has preferred the present revisional application.

The opposite party Messrs. Surajmull Nagarmull as plaintiff filed Title Suit No. 264 of 1978 for
eviction of the petitioner. The said suit was decreed ex parte on Mar. 25, 1980. On Feb. 13, 1981
petitioner filed an application under Order 9, Rule 13 read with Section 151 of the Code alleging
that no summons had been served upon him. He came to know of the ex parte decree on Feb. 12,
1981. Petitioner prayed for setting aside the decree. In the written objection the opposite party
contended that summons had been duly served on the petitioner and as the petitioner failed to
appear the ex parte decree was passed against him. The opposite party further contended that the
petitioner resisted the Court bailiff when the latter went to deliver possession on June 17. 1980.
As such the petitioner was at least aware of the ex parte decree from the said date. The
application was barred by limitations.
The learned Munsif held that summons was served upon the petitioner and he had failed to prove
that he was prevented by sufficient cause from appearing when the suit was called on for
hearing. The appiica ion was also barred by limitation. On appeal, the learned Additional District
Judge found that the petitioner came to know of the ex parte decree on June 17, 1980 and the
application was consequently barred by limitation.
Petitioner has challenged the said decision in the present revisional application. The revisional
application is being heard on contest after notice to the opposite party.
 PROVISIONS OF CPC DEALT IN THE CASE

ORDER IX RULE 13

Setting aside decrees ex parte 13. Setting aside decree BIex 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:
[164] [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]
[165] [Explanation.—Where there has been an appeal against a decree passed ex parte under this
rule, and the appeal has been disposed of an any ground other than the ground that the appellant
has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte
decree.]
ORDER V RULE 20
Substituted service— (1) Where the Court is satisfied that there is preason to believe that the
defendant is keeping out of the way for the purpose of avoiding service, or that for any other
reason the summons cannot be served in the ordinary way, the Court shall order the summons to
be served by affixing a copy thereof in some conspicuous place in the Court-house, and also
upon some conspicuous part of the house (if any) in which the defendant is known to have last
resided or carried on business or personally worked for gain, or in such other manner as the
Court thinks fit. [129][(1A) Where the Court acting under sub-rule (1) orders service by an
advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the
locality in which the defendant is last known to have actually and voluntarily resided, carried on
business or personally worked for gain.] (2) Effect of substituted service—Service substituted by
order of the Court shall be as effectual as if it had been made on the defendant personally. (3)
Where service substituted, time for appearance to be fixed—Where service is substituted by
order of the Court, the Court shall fix such time for the appearance of the defendant as the case
may require.

SECTION 151
Saving of inherent powers of Court— Nothing in this Code shall be deemed to limit or otherwise
affect the inherent power of the Court to make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the Court.
The scope of Section 151 CPC has been explained by the Supreme Court in the case K.K.
Velusamy v. N. Palanisamy as follow:
(a) Section 151 CPC is not a substantive provision which creates or confers any power or
jurisdiction on courts. It merely recognises the discretionary power inherent in every court as a
necessary corollary for rendering justice in accordance with law, to do what is right and undo
what is wrong•, that is, to do all things necessary to secure the ends of justice and prevent abuse
of its process.

(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if
the Code does not expressly or impliedly cover any particular procedural aspect, the inherent
power can be used to deal with such situation or aspect, if the ends of justice warrant it. The
breadth of such power is coextensive with the need to exercise such power on the facts and
circumstances.

(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise
of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect,
and such provisions either expressly or by necessary implication exhaust the scope of the power
of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power
cannot be invoked in order to cut across the powers conferred by the Code or in a manner
inconsistent with such provisions. In other words the court cannot make use of the special
provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically conferred, a
court is free to exercise them for the purposes mentioned in Section 151 of the Code when the
matter is not covered by any specific provision in the Code and the exercise of those powers
would not in any way be in conflict with what has been expressly provided in the Code or be
against the intention of the legislature.

(e) While exercising the inherent power, the court will be doubly cautious, as there is no
legislative guidance to deal with the procedural situation and the exercise of power depends upon
the discretion and wisdom of the court, and in the facts and circumstances of the case. The
absence of an express provision in the Code and the recognition and saving of the inherent power
of a court, should not however be treated as a carte blanche to grant any relief.

(f) The power under Section 151 will have to be used with circumspection and care, only where
it is absolutely necessary, when there is no provision in the Code governing the matter, when the
bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice
and to prevent abuse of process of court
 ADDITIONAL PROVISIONS DEALT

ORDER XXI RULE 97

Resistance to delivery of possession to decree- holder or purchaser 97 . Resistance or obstruction

to possession of immovable property— (1) Where the holder of a decree for the possession of
immovable property or the purchaser of any such property sold in execution of a decree is
resisted or obstructed by any person in obtaining possession of the property, he may make an
application to the Court complaining of such resistance or obstruction.

[(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate
upon the application in accordance with the provisions herein contained.]
The right of an innocent and genuine occupant as an obstructor is recognised under Order 21,
Rule 97 C.P.C. But such a right cannot be converted into a tool in the hand of high handed and
self seeking persons/Judgment debtors in order to defeat the rights of the parties and to render the
decrees and orders of the Court nothing more than pieces of paper. Order 21, Rule 97 C.P.C is
intended to protect a person who is genuinely in possession of the property claiming independent
rights. That is why under Order 21, Rule 101 C.P.C the Court is required to go into all
allegations of title, right and interest as if it is a suit by itself. But the most important feature to
be borne in mind is Rule 102 which is squarely applicable to the facts of the present case. The
provisions relating to the resistance or obstruction to possession of immovable property will not
apply to obstruction by a person to whom the judgment debtor had transferred the property
pendente lite.
 ISSUES BEFORE THE COURT

Mr. B. N. Sen, learned counsel for the petitioner, has argued that the records would show that
there was no service of summons. The Court was not satisfied with the service by ordinary
process and also through registered post. The plaintiff-opposite party was asked to take steps
for better service. In the circumstance the substituted service under Order 5, Rule 20 of the
Code on the prayer of the plaintiff cannot be considered to be service in accordance with law
as no ground existed for invoking the provisions of Order 5, Rule 20 of the Code. It has been
further contended by Mr. Sen that the evidence regarding the attempt of the bailiff to deliver
possession on June 17, 1980 and the alleged resistance by the petitioner cannot be relied upon
in view of material discrepancies. The finding that the petitioner became aware of the decree
On June 17, 1980 is not supported by the evidence on record. According to Mr. Sen, there
was no reason, in the circumstances of the present case, why the petitioner would not come to
court earlier had he been aware of the decree. The petitioner camp to know of the decree on
Feb. 12, 1981 and immediately rushed to court and filed the application on Feb. 13, 1981. Mr.
Roy Chowdhury, learned counsel for the opposite parly, has submitted that the petitioner was
avoiding the service of summons and recourse had to be had under Order 5, Rule 20 of the
Code for service. Mr. Roy Chowdhury contends that under the law substituted service is as
effectual as personal service and as such service of summons under Order 5, Rule 20 of the
Code was valid. It has been further argued that there is clear finding of the fact that the
petitioner resisted the execution of the decree on June 17, 1980 and he thus came to know of
the ex parte decree on that date. The application was clearly beyond time. The only object of
the petitioner is to delay the execution of the decree as long as possible,

The learned appellate court dismissed the application of the petitioner only on the ground of
limitation as, according to it, the petitioner came to know of the ex parte decree on June 17,
1980, aS regards the date of knowledge, the discrepancies in the evidence of the witnesses --
O. P. W. 1 Tarapada Gan-guly (Process Server) and O. P. W. 2 Ajit Kumar Chakraborty
(employee of the opposite party) -- with reference to the report of the process server
regarding the obstruction to the execution of the writ for delivery of possession should have
been properly considered. In the report (Ex. E) the process server has stated that on June 17,
1980 at about 8 a.m. when he went to deliver possession, he was obstructed by the petitioner
in presence of O. P. W. 2. In the certified copy of Ext. E the figure '8' was wrongly written as
'4'. In his evidence O. P. W. 1 Tarapada Ganguly at first stated that he went at 8 a.m.
Thereafter he stated that due to mistake he told the time as 8 a.m. O. P. W. 2 Ajit Kumar
Chakraborty in his evidence stated that obstruction to deliver possession took place in his
presence at 4 p.m. O. P. W. 1 the petitioner denied service of summons. He also denied that
he obstructed the execution of the decree. He stated that he came to know of the decree on
12-2-1981 and made searches in court and thereafter filed the application on 13-2-1981. In
the circumstances, we are of the opinion that the learned courts below have acted with
material irregularity in the exercise of jurisdiction and the petitioner has been prejudiced
thereby. There was no due service of summons and the application was not barred by
limitation. The petitioner is entitled to succeed.
 FINAL JUDGEMENT

Having regard to the materials on record, we are of the view that the decisions of the learned
courts below cannot be sustained. The revisional application is allowed on contest but
without costs. The impugned orders of the learned courts below are set aside and the
petitioner's application under Order 9, Rule 13 of the Code is allowed. The ex parte decree be
set aside and the suit be restored to file. The defendant will file written statement within three
weeks of the arrival of the records in the trial court or within such time as the learned Munsif
may allow. The learned Munsif will try to dispose of the suit as early as possible. Let the
records be sent below forthwith.
An „Ex parte decree‟ is a decree passed against a defendant in absentia. Despite service of
summons, where on the date of hearing only plaintiff does and a defendant does not appear
the Court may hear the suit ex parte and pass a decree against the defendant. The legal
validity, enforceability and operation of such decree is similar to any bi-parte decree.
The article critically analyses various provisions in the Code of Civil Procedure, 1908
pertaining to ex parte decree. Part I of the article enumerates the nature of an ex parte decree
and cause of an ex parte decree. Part II titled Relief Available Against an ex parte deals with
various remedies available to the person against whom an ex parte decree is passed and the
abuse of such remedies. Part III titled Sufficient Cause for Non-appearance analyses various
instances and circumstances where non-appearance of the party is excusable. Part IV titled Ex
Parte Decree obtained by Fraud deals extensively with one of the remedy available against an
ex parte decree.
The Right to be heard in a suit is one of the tenets of principles of natural justice and our
Civil procedure duly provides for such right to the party. Despite the sufficient opportunity
provided if the party does not avail this to explain himself, in court hears the suit ex parte. In
order for the justice system to be efficient and to not prejudice the rights of the plaintiff this is
justified.
However, owing to unavoidable reasons the party might not appear for the hearing. In such
cases the Code is sensitive those genuine cases. On careful reading of Order IX Rule 13 it is
obvious that the applicant for setting aside the ex parte decree should satisfy the Court that
there was sufficient cause for its non- appearance on the date of hearing. As noted earlier an
application under this rule cannot be entertained on moral or humanitarian grounds however;
the Courts cannot be deaf toward the realities of life.
 CONCLUSION

As per Rule 1 of Order VIII C.P.C the defendant has to submit a written statement in 30 days
from the date of service of summons. However, in exception circumstance not more than 90
days from the date of service of summons. If the defendant fails to submit in such period the
Court on the basis of facts can adjudge the matter. A decree passed under Rule 10 of Order
VIII for the defendant‟s default in filing a written statement is nevertheless an ex parte
decree, which is subject to Rule 13 of Order IX. If as a result ex parte decree is passed by the
competent Court despite due notice to the party, there no failure of natural justice.
Non-appearance of one of the party on the date of hearing does not necessarily entail that an
ex parte decree would follow. If the evidence adduced does not support the claim of the
plaintiff, the Court cannot pass an ex parte decree. However, this is qualified as there is an
obligation on the Court to weigh the merits of the case and consider whether it is a fit case for
granting such decree.
The Court on satisfaction of the grounds may impose conditions for setting aside the decree.
It may order for payment of costs or may ask the defendant to deposit the decretal amount or
a part of it, or may direct him to furnish security or any other condition as the Court deems fit
and appoint a day for proceedings of the suit.
The Courts have wide discretion for imposing terms and conditions on the defendant.
However, conditions imposed be reasonable and should not be harshly excessive. They
should exercise discretion reasonably and judicially and not arbitrarily or
capriciously. Superior courts can set aside such terms and conditions if are onerous or
unreasonable. Non-compliance with any of the conditions would result in dismissal of the
application for the restoration of a case.
The Supreme Court held that the terms imposed should not be onerous or vague nor should
they have the effect of prejudging the controversy involved and of practically decreeing the
suit even though the ex parte order is set aside. The terms should be based on facts and
circumstances of that particular case. The terms should not be such that defendant ends up in
a worse position than if he had not approached the Court for setting aside the decree. The trial
court set aside ex parte order on a suit involving eviction and recovery of arrears condition
that the tenants deposit monthly lease amount in the Court. On facts the Supreme Court held
that the conditions imposed were too onerous, vague and lack clarity.
 BIBLIOGRAPHY

BOOKS

 C.K. Takwani , Civil Procedure (CPC) with Limitation Act, 1963, 8 th Ed. Eastern Book
Co, January 2019.
 Mulla‟s The Code of Civil Procedure (Abridged) by Sir Dinshaw Fardunji Mulla Revised
by Justice Deepak Verma and Namit Saxena , 17th Ed. Lexis Nexis, 2018.

WEB SOURCES

 https://www.casemine.com
 https://indiankanoon.org/
 https://blog.ipleaders.in
 SCC Online
 Manupatra.in
 www.legalservicesindia.com