Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Code of Civil Procedure I 908-0. 8 r. I 0-Jnvoking of-Suit- Non-appearance of defendant despite service of summons |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Disposed Off |
Headnote | Code of Civil Procedure, 1908 - O.8 r. 10 - Invoking of - Suit - Non-appearance of defendant despite service of summons - Prayer for decree under 0.8 r. 10 - Plaintiff declined to examine any witness - Ex-parte decree - Application for setting aside ex-parte decree on the ground that suit was barred by limitation - Dismissed by Courts below - Correctness of - Held: Not correct-It was duty of Court to consider if suit was barred by limitation even when no such defence raised - In case suit barred by limitation, Court had no jurisdiction to pass decree - Even otherwise, plaintiff was bound to prove his case - Trial Court erred in invoking O.8 r.10 - Ex parte decree set aside - Limitation Act, 1963 - s.3.The parties were on business terms. The appellants were to supply 'made tea' for the year 1984 and 1985 to the respondent. They supplied lesser quantity of 'made tea' for both years. Respondent filed a suit towards the price of the remaining amount for terminal tea supply. Despite service of summons, the appellants did not appear. The respondent made a prayer before the trial court to pass decree under O.8 r.10 CPC. He declined to examine any witness. The trial court passed ex-parte decree stating that prima facie case was made out in favour of the respondent-plaintiff. An application was filed for execution of decree in 1997. Summons in the said execution case were served upon the appellants. The execution proceeding were stayed in July, 2000. In September, 2000, the appellants filed an application under O.9 r.13, CPC for setting aside the said ex-parte decree. The said application was dismissed on the ground that the appellants could not satisfactorily explain the cause for delay in filing the said application, as also in view of Article 123 of the Schedule appended to the Limitation Act, 1923. The revision thereagainst was also dismissed. Liberty, however, was granted to the appellants to prefer an appeal against the original decree. An appeal thereafter was filed by the appellants along with an application for condonation of delay. The High Court refused to condone the delay and consequently dismissed the appeal. In appeal to this Court, the appellants contended that it was obligatory on the part of the trial judge to satisfy itself about the bona fide of the claim of the plaintiff-respondent and; that having regard to the fact that the last advance was purported to have been made on 19.6.1985, the suit which was filed on 2.1.1989 was barred by limitation. |
Judge | Hon'ble Mr. Justice S.B. Sinha |
Neutral Citation | 2007 INSC 1249 |
Petitioner | Bogidhola Tea And Trading Co. Ltd. And Anr. |
Respondent | Hira Lal Somani |
SCR | [2007] 12 S.C.R. 1153 |
Judgement Date | 2007-12-07 |
Case Number | 5771 |
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