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Civil Revision No. 1208 of 1975, decided on 23rd February 1976.

‑‑ O. IX, r. 13‑Setting aside decree ex parte‑ Negligence proved to have been committed in appearance‑Defendant can be burdened with costs and even with payment of decretal amount in given circumstances‑Court not to impose very onerous terms on applicant Judgment‑debtor unless it finds him at fault‑Such term or condi tion to be proportionate to seriousness of omission‑Trial Court, after due appraisal of evidence, finding that absence of defendant on fixed date was not intentional‑Order directing defendant to deposit decretal amount‑Held, cannot be justified.‑[Ex parte decree].

The language as contained in rule 13 of Order IX, C. P. C. shows that ex parte decree can be set aside on payment of costs, on payment of suit amount into court or even otherwise as is deemed, fit by the Court. The discretion, however. in this behalf is to be exercised judicially and not in an arbitrary manner or in other words not illegally or with material irregularity while exercising the jurisdiction. Such condition to the extent of payment of suit amount in the Court can be imposed in order to test the bona fides of the defendant.

If somewhat negligence though not intentional is proved to have been committed it may be deemed to be fit to burden the defendant with costs and even with the payment of decretal amount in the given circumstances. But if it is proved that there was no negligence whatsoever on the part of the defendant the Court may set aside the ex pane decree without payment of any costs. According to law Court should not impose very onerous terms on the applicant‑judgment‑debtor unless it finds that he was at fault. Any such term or condition should be proportionate to the seriousness of the omission.

In the instant case, it was found by the trial Court after due appraisal of the evidence that his absence on the date fixed was not intentional. If any term or condition to be imposed at the time of setting aside the ex parte decree, is to be proportionate to the seriousness of the omission then the impugned order directing the petitioner to deposit the decretal amount cannot be justified.

Madan Mohan v. B. Kanhaiya Lal A I R 1933 All. 601 rel.

Mian Muhammad Saeed for Petitioner.

Ch. Hafeez Ahmad for Respondent.

Date of hearing : 30th January 1976.

The facts of the case are that an ex parte decree for amount of Rs. 18,592.21 was passed against the petitioner by the learned trial Court on 17th of May, 1974. An application for setting aside the ex parte decree was submitted on 15th of November, 1974 on the ground that no proper or due service had been effected upon the petitioner. This application was accepted by the learned trial Court vide its impugned order dated 15th of September, 1975 subject to the condition that he would deposit the suit amount in the Court within a period of one month.

2. It has been argued that when no default has been proved on the part of the petitioner in not appearing on the relevant date of hearing before the learned trial Court and when sufficient cause has been shown with regard to that, such harsh condition cannot be applied in law. It is further argued that after the ex parte decree has been set aside being nullity in the eye of law the learned trial Court is not competent to direct the petitioner to deposit the suit amount which otherwise according to the learned counsel for the petitioner can be directed to be deposited only in the given circumstances of the case at the time of the entertainment of the application for setting aside the ex parte decree.

3. It has been argued to the contrary that since it is within the jurisdic tion of the Court to set aside the ex parte decree on such terms and conditions as to cost, payment into Court or otherwise as it thinks fit. the impugned order being within the jurisdiction of the Court cannot be interfered with.

4. So far as the jurisdiction of the Court to pass the impugned order is concerned it is competent to pass such order setting aside the ex parte decree on the payment of the decretal amount or a portion thereof in the given circumstances of the case. The language as contained in rule 13 of Order IX, C. P. C. shows that ex parte decree can be set aside on payment of costs, on payment of suit amount into Court or even otherwise as is deemed fit by the Court. The discretion, however, in this behalf is to be exercise judicially and not in an arbitrary manner or in other words not illegally or with material irregularity while exercising the jurisdiction. Such condition to the extent of payment of suit amount in the Court can be imposed in order to test the bone fides of the defendant.

5. In the present case it has been held by the learned trial Court while accepting the application of the petitioner that no proper service was effected upon him for the date when ex parte decree was passed against him. It was held that he had shown sufficient cause for setting aside the decree. The language of the relevant provision also shows that an order setting aside the ex parte decree can be passed as mentioned above, on payment of costs, as well as decretal amount into Court or even otherwise. The question which arises for consideration is that if no default is proved to have been committed by the defendant in not appearing on the relevant date whether even then he would be burdened with costs and would be asked to deposit the decretal amount. If somewhat negligence though not intentional is proved to have been committed it may be deemed to be fit to burden the defendant with costs and even with the payment of decretal amount in the given circum stances. But if it is proved that there was no negligence whatsoever on the, part of the defendant the Court may set aside the ex parte decree without payment of any costs. According to law Court should not impose very, onerous terms on the applicant‑judgment‑debtor unless it finds that he was at fault. Any such term or condition should be proportionate to the seriousness of the omission. This view gains support from Madan Mohan v. B. Kanhalya Lal A I R 1933 All. 601. In that case the defendant absented himself from appearing in the Court on a particular date under tire impression that since the legal heirs of his deceased mother were to be brought on record on the said date, therefore, it was not necessary for him to be present in the Court. The ex parse decree in that case was set aside by the trial Court on condition of payment of 1/3rd of the decretal amount, as well as Rs. 350 as damages. It was held that since sufficient cause had been shown for nonappearance therefore, condition of payment of any part of the decretal amount was not necessary. The ex parte decree was however, set aside on payment of Rs. 350 as damages. The facts of the present case show that necessary process was allegedly received by one Maliha Hamid Hussain, a lady member of the petitioner's family. Since the service was not effected upon the petitioner or on any male member of the family, therefore, it was not found to be proper under the law. In the event of having been found by the learned trial Court that no due service was effected, it is to be seen as to how much damage was caused to the ex parte decree‑holder on account of the non‑appearance of the petitioner‑ ‑defendant on the date fixed. Was petitioner's non‑appearance intentional or it was an omission on account of improper and not due service upon him It bas been found by the learned trial Court after doe appraisal of the evidence that his absence on the date fixed war oat intentional. If any term or condition to be imposed at the time of setting aside the ex parte decree is to be proportionate to the seriousness of the omission then the impugned' order directing the petitioner to deposit the decretal amount cannot he justi fied. The jurisdiction In this behalf has been exercised illegally and with material irregularity ignoring that the omission. if any, on the part of the petitioner was not so serious, as discussed above, to warrant the deposit of the decretal amount. In the circumstances amount of Rs. 100 as costs would have been sufficient to compensate the decree‑holder for the damage suffered by him on account of non‑appearance of the petitioner on the date when the ex parte decree was passed.

6. In view of the above discussion, the impugned order passed by the learned trial Court is hereby set aside, the civil revision is accepted subject to the condition that the petitioner would pay Its. 100 as costs to the respon dent within a period of one month failing which his application under Order IX, rule 13, C. P. C. would stand rejected. In the given circumstances of the case, the parties are directed to appear before the learned trial Court on 6th of March, 1976.

S. Q. Petition accepted.

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