[K. Surekha Reddy v. Chandraiah, AIR 2011 (NOC) 192 AP] The appellant filed application to set aside the ex parte decree pleading that she was not even served with summons in the suit. The respondent, on the other hand, pleaded that not only summons were served upon the appellant, but also an advocate was engaged by her. The Trial Court dismissed the application on two grounds, viz., (a) that no application was filed for condonation of delay, and (b) that the record discloses that the appellant engaged an advocate in the suit, and thereafter remained ex parte.
The Court observed that so far as the first ground is concerned, though the limitation for filing an application under Order IX Rule 13 C.P.C., is 30 days, from the date on which the ex parte decree was passed, a different approach becomes necessary, in case the defendant, who suffered the ex parte decree did not have any knowledge of the ex parte decree. In this regard, a distinction needs to be maintained between the defendant who entered appearance in the suit, but was set ex parte, before the ex parte decree came to be passed, on the one hand; and the one, who was not served with the summons at all, and accordingly was not aware of the ex parte decree.
In the first category of cases, the limitation for filing application starts from the date of ex parte decree. The reason is that, once the defendant is served with summons, or has entered appearance, he is supposed to be in the knowledge of the development, that takes place in the suit.
In the second category of cases, the Court cannot impute knowledge to him, as regards any step, including the passing of ex parte decree. If it is established that a defendant was not served with summons at all, before the ex parte decree was passed, the limitation starts from the date of knowledge of the ex parte decree, and not from the date of the decree. In the instant case, if the appellant proves that she was not served with summons at all, the date of order becomes irrelevant.
As regards the second ground, it needs to be seen that the Trial Court proceeded on the assumption that the appellant was served with summons and engaged an advocate also. When a specific plea was raised by the appellant herein, that she was neither served with notice, nor did she engage an advocate at all, the Trial Court was under obligation to verify the record, and come to a definite conclusion.
If vakalat is filed, the Court does not even have to verify whether summons were served, or not. It proceeded on the assumption that the appellant had engaged an advocate.
Nowadays, it is not uncommon that plaintiffs, who are smart enough, resort to arrange for filing vakalats on behalf of the defendants also, with the object of misleading the Court, and obtain an ex parte decree. The Trial Court can verify the record and arrive at proper conclusions. Hence, the plea is allowed, and the order is set aside. The matter is remanded to the Trial Court for fresh consideration and disposal.
