AUTO CARS versus TRIMURTI CARGO MOVERS PVT. LTD. & ORS. on 15 February 2018

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SUPREME COURT REPORTS

[2018] 10 S.C.R.

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AUTO CARS

v.

TRIMURTI CARGO MOVERS PVT. LTD. & ORS.

(Civil Appeal No. 2113 of 2018)

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FEBRUARY 15, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Code of Civil Procedure, 1908 – s. 27, Appendix-B r/w. Or.V,r.20(3) and Or. IX, r.13 – Respondent No.1-Plaintiff filed a suit inthe High Court at Calcutta for recovery of money – Summons sentCto Appellant-defendant No.1 and Respondents Nos.2 & 3-defendantNos.2 &3 were not served with ordinary mode of service – Plaintiffsought substituted service by way of publication in daily newspapersu/Or.V, r.20 – Permission was granted to plaintiff and summons werepublished in the newspapers – Defendants did not appear in theDcase, the Court proceeded to decide the suit on merits in theirabsence and passed an ex-parte decree – Defendants filedapplication u/Or.IX, r.13 for setting aside the ex-parte decree interalia on the grounds that the summons of the suit was not duly servedon them – Application dismissed by the High Court – On appeal,held: Appellant successfully made out a ground contemplatedEu/Or.IX, r.13 for setting aside the ex-parte decree – On facts, thesummons which was sought to be served on the defendants bypublication in the newspapers did not comply with requirement ofs.27 r/w. Appendix-B (process) No.I and IA (As amended by theState) – The material infirmity in the summons was that it did notFmention any specific day, date, year and time for defendants’appearance in the Court – This (specific day, date, year and timefor appearance) being the requirement of s.27 r/w. Or.V, r.20(3)and process-IA of Appendix-B, it would have enabled the defendantsto appear before the Court on the date so fixed therein – Whereas,the wordings in the summons in question was that the defendantsGshould appear before the Registrar of the Court within 15 daysfrom the service of publication of summons without mentioning aspecific day, date, year and time – It is not in conformity with therequirements of s.27 r/w. Appendix B.

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Allowing the appeal, the Court

HELD: 1. In the format prescribed in the Appendix-BProcess No.I or No.IA (which is applicable to the case at handbecause the suit in question originates from Calcutta), there is aspecific column in the summons where a “day, date, year andtime” for defendant’s appearance is required to be mentioned.[Para 21] [477-A-B]

2. In other words, the legislature while prescribing theformat of summons in the Code has provided one column wherethe Court is required to mention a specific “day, date, year andtime” for the defendant’s appearance in the Court to enable himto answer the suit filed against him/her. This is also therequirement prescribed under Section 27 of the Code as is clearfrom the words occurring therein “and may be served in themanner prescribed on such day”. [Para 22] [477-B-C]

3. Order V Rule 20(3) provides that when the service iseffected by way of publication by the orders of the Court, theCourt has to fix “time” for the appearance of the defendant, asthe case may require. This does not dispense with the requirementof mentioning the actual day, date, year and time for defendant’sappearance in the Court because it is prescribed in format. Theexpression “time” has to be read harmoniously and injuxtaposition with the requirement prescribed under Section 27read with statutory format Process IA of Appendix-B appendedto the Code. Indeed, mentioning of the specific “day, date, yearand time” in the summons is a statutory requirement prescribedin law (Code) and, therefore, it cannot be said to be an emptyformality. It is essentially meant and for the benefit of thedefendant because it enables the defendant to know the exactdate, time and the place to appear in the particular Court in answerto the suit filed by the plaintiff against him. [Paras 23, 24 and 25][477-D-F]

4. The object behind sending the summons is essentiallythreefold- First, it is to apprise the defendant about the filing of acase by the plaintiff against him; Second, to serve the defendantwith the copy of the plaint filed against him; and Third, to informthe defendant about actual day, date, year, time and the particular A

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ACourt so that he is able to appear in the Court on the date fixedfor his/her appearance in the said case and answer the suit eitherpersonally or through his lawyer. [Para 27] [477-G-H; 478-A]

5. On facts, the summons dated 17.11.2014, which wassought to be served on the defendants by publication publishedBon 25.11.2014 in the newspapers did not comply with therequirement of Section 27 read with Appendix-B (process) No.Iand IA. In other words, the summons dated 17.11.2004 publishedin the papers (Times of India and Dainik Bhaskar) had materialinfirmity therein, which rendered the summons so also the servicemade on the defendants bad in law. [Paras 28 and 29] [478-B-C]C

6. The material infirmity in the summons was that it did notmention any specific day, date, year and time for the defendants’appearance in the Court. This being the requirement of Section27 read with Order V Rule 20(3) and Process-IA of Appendix-B,it was mandatory for the Court to mention the specific workingDday, date, year and time in the columns meant for such filling. Itwould have enabled the defendants to appear before the Courton the date so fixed therein. It is a settled rule of interpretationthat when the legislature provides a particular thing to be donein a particular manner then such thing has to be done in the sameEprescribed manner and in no other manner. [Para 30] [478-D-E]

7. What was, however, mentioned in the summons inquestion was that the defendants should appear before theRegistrar of the Court within 15 days from the service ofpublication of this summons on them exclusive of the day of suchFservice of the summons and are summoned to appear before thisCourt in person or through advocate to answer the plaintiff’s claimon the day the case is set down for hearing upon which datedefendants must be prepared to produce all your witness and allyour documents in your possession or power upon which youintend to rely in support of your case. The summons then alsoGmentioned that defendants are hereby required to take noticethat in default of your causing an appearance to be so entered,the suit will be liable to be heard and determined in your absence.[Para 31] [478-F-G]

8. The aforesaid wording in the summons insofar as itHpertains to giving 15 days’ time without mentioning a specific day, date, year and time is not in conformity with the requirementsof Section 27 read with Appendix B. [Para 32] [478-H; 479-A]

9. In the light of the foregoing discussions, service ofsummons on the defendants without mentioning therein a specificday, date, year and time cannot be held as “summons duly served”on the defendants within the meaning of Order IX Rule 13 of theCode. In other words, such summons and the service effectedpursuant thereto cannot be held to be in conformity with Section27 read with the statutory format prescribed in Appendix BProcess (I and IA) and Order 5 Rule 20(3) of the Code. [Para 33][479-B]

10. It is for this reason, the appellant (defendant No.1) wasable to make out a ground contemplated under Order IX Rule 13of the Code for setting aside the ex parte decree. [Para 34] [479-C]

Sangram Singh v. Election Tribunal AIR 1955 SC 425 :[1955] SCR 1 – referred to.

Case Law Reference

[1955] SCR 1referred toPara 37

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2113 of2018.

From the Judgment and Order dated 24.04.2017 of the High Courtat Calcutta, Civil Appellate Jurisdiction, Original Side in APO No. 200 of2017 in CS No. 15 of 2014.

Shekhar Naphade, Sr. Adv., Uday B. Dube, Seshatalpa SaiBandaru, Advs. for the Appellants.

S. Chakraborty, Ms. Surbhi Anand, Ms. Sonia Dubey, M/s. LegalOptions, Shashibhushan P. Adgaonkar, Rana Sandeep Bussa, Advs. forthe Respondents.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is filed against the final judgment and order dated24.04.2017 passed by the High Court at Calcutta in A.P.O. No.200 of2017 in C.S. No.15/14 whereby the Division Bench of the High Courtdismissed the appeal filed by the appellant herein and affirmed the order A

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Adated 18.08.2016 passed by the Single Judge of the High Court in GANo.766 of 2016, in consequence, affirmed the ex- parte decree dated09.02.2015 in C.S. No.15 of 2014.

3. The controversy involved in the appeal lies in a narrow compass.However, few facts need mention infra to appreciate the controversy.

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4. The appellant is defendant No.1 whereas respondent No.1 isthe plaintiff and respondent Nos. 2 and 3 are defendant Nos.2 and 3 inthe civil suit out of which this appeal arises.

5. The plaintiff (respondent No.1) filed a civil suit being C.S. No15 of 2014 in the High Court at Calcutta on its original side against theCdefendants (appellant and respondent Nos.2 and 3) for recovery ofRs.1,43,18,537/- on 13.01.2014. The suit was based on some commercialdealings exchanged between the parties in relation to services and supplyof goods etc.

6. It is, however, not necessary for the disposal of this appeal toDrefer in detail the facts on which the suit was founded to claim theamount in question from the defendants.

7. The summons of the suit was initially sent to the defendants attheir place of business mentioned in the cause title of the plaint, whichwas shown at Aurangabad (MH). Since the defendants were not beingEserved with the ordinary mode of service, the plaintiff sought permissionto serve them with the substituted service by way of publication underOrder V Rule 20 of the Code of Civil Procedure, 1908 (hereinafterreferred to as “the Code”). The permission was granted to the plaintiff.

8. The summons dated 17.11.2014 was accordingly published inFthe Times of India (Pune Edition) and Dainik Bhaskar(AurangabadEdition) on 25.11.2014. The summons, which was published in papers,reads as under:

“Advertisement

The Times of India, Tuesday, Nov. 25, 2014GC.S. No.15 of 2014IN THE HIGH COURT AT CALCUTTAOrdinary Original Civil JurisdictionOriginal Side AUTO CARS v. TRIMURTI CARGO MOVERS PVT. LTD.[ABHAY MANOHAR SAPRE, J.]

M/s. Trimurti Cargo Movers Pvt. Ltd. a companyincorporated under the Companies Act, 1956 having itsregistered office at 157-C, Lelin Sarani, Kolkata-700013,Police Station Tal Totlla within the aforesaid jurisdictionand branch office at 305, Shivam Chamber, S.V. Road,Goregaon, Mumbai-400062. …..Plaintiff

Versus

1. M/s Auto Cars, a registered partnership firm having itsoffice at Adalat Road, Aurangabad-4310001 outside theaforesaid jurisdiction and branch office at 39-A, HarishMukherjee Road, Kolkata-700025.

2. Mr. Venugopal Dhoot, Partner of M/s. Auto Cars of AdalatRoad, Aurangabad-4310001 outside the aforesaidjurisdiction. ……Defendants To,

1. Mr. Venugopal Dhoot, Partner of M/s. Auto Cars of AdalatRoad, Aurangabad-4310001.

2. Mr. Raj Kumar Dhoot, Partner of M/s. Auto Cars ofAdalat Road, Aurangabad-4310001

Dear Sir,

Notices hereby given under Order V Rule 20 of the Codeof Civil Procedure, 1908 that the plaintiff above namedhad filed a suit against you before this Hon’ble High Courtat Calcutta on or about 13.01.2014 inter alia praying forleave under Clause 12 of the Letters Patent, 1865 andclaims and reliefs:

(a) A decree of Rs.1,63,34,537/- against the defendant aspleaded in paragraph 14 above; (b)Interest at the rate of Rs.25% per annum;

(c) Interim interest and interest upon judgment on theaforesaid decreetal amount until realization; (d)Receiver; (e)Injunction; A

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A(f) Attachment;

(g) Costs;

(h) Such further or other relief(s)

You are hereby required to cause an appearance to beBentered for you in the office of the Registrar of this Courtwithin 15 days from the service upon you by way ofpublication of this summons, exclusive of the day of suchservice and are summoned to appear before this Courtin person or by an advocate of the court to answer theplaintiffs’ claim on the day the case is set down forChearing, upon which date you must be prepared to produceall your witnesses or power upon which you intend torely in support of your case.

You are hereby required to take notice that in default ofyour causing an appearance to the so entered the suitwill be liable to be heard and determent in your absence.

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Witness: Mrs. Manjula Chellur, The Chief Justice, AtCalcutta aforesaid the 13[th] day of November, 2014.

Arka Kumar Ghosh Master 17/11/14

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(Santosh Kumar Ray)

Plaintiffs’ Advocate on Record6 Kiran Shankar Roy Road2nd Floor, Room No.707, FKolkata-700001

9. The defendants did not appear in the case, as directed in thesummons, therefore, the Court placed the defendants ex-parte andproceeded to decide the suit on merits in their absence and eventually on09.02.2015 passed an ex-parte decree against the defendants for a sumGof Rs.1,43,18,537/- together with simple interest @ 12% p.a. from01.05.2013 till the date of payment.

10. On coming to know of passing of the decree against them, thedefendants filed an application under Order IX Rule 13 of the Code on08.03.2016 before the Court (GA No. 766/2016) praying therein for setting H

aside the ex-parte decree inter alia on the ground that the summons ofthe suit was not duly served on them, therefore, they had no knowledgeof filing of the suit by the plaintiff against them. The defendants alsocontended that their place of business is at Aurangabad whereas thesummons in question was published in the daily newspaper, Times ofIndia at Pune. The defendants, therefore, contended that due to thisreason a case for setting aside of the ex-parte decree, as contemplatedunder Order IX Rule 13 of the Code, is made out and hence the ex-parte decree dated 09.02.2015 passed in Civil Suit No.15/2014 be setaside and the defendants be permitted to contest the suit on merits.

11. The plaintiff filed their reply and contested the applicationfiled by the defendants. According to the plaintiff, there was no illegalityor irregularity in the service of the summons on the defendants andsince despite service of the summons made pursuant to the publicationin the newspapers, the defendants failed to appear in the suit, therefore,they were not entitled to seek any indulgence nor entitled to seek settingaside of the decree under Order IX Rule 13 of the Code.

12. The Single Judge, by judgment dated 18.08.2016, dismissedthe application filed by the defendants holding that the summons wereduly served on them. The defendants felt aggrieved and filed appealbefore the Division Bench of the High Court. By impugned judgment,the Division Bench dismissed the appeal and affirmed the judgment ofthe Single Judge.

13. The appellant (defendant No.1) felt aggrieved by the judgmentof the Division Bench and filed the present appeal by way of specialleave before this Court.

14. Heard Mr. Shekhar Naphade, learned senior counsel, for theappellant, Mr. S. Chakraborty, learned counsel for respondent No.1 andMr. Shashibhushan P. Adgaonkar, learned counsel for respondent Nos.2& 3.

15. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal and whilesetting aside the impugned judgment allow the application filed by thedefendants under Order IX Rule 13 of the Code and, in consequence,set aside the ex parte decree 09.02.2015 passed in Civil Suit No. 15/2014 and restore the suit on its file for being tried on merits in accordancewith law.

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474SUPREME COURT REPORTS

[2018] 10 S.C.R.

A16. In our considered view, the issue involved in the appeal isrequired to be examined keeping in view Section 27, Appendix-Bappended to the Code read with Order V Rule 20(3) and Order IX Rule13 of the Code.

17. Section 27 of the Code deals with issuance of the summons toBdefendants. It says that where a suit has been instituted, summons maybe issued to the defendant to appear and answer the claim and may beserved in the “manner prescribed on such day” not beyond thirty daysfrom the date of the institution of the suit.

18. The format of the summons, which is used for effecting serviceCon the defendant, is prescribed in Appendix-B, Process No.I. So far asCalcutta is concerned, the State has amended the format of the summonsas Process No.IA. These formats are appended to the Code and readas under:

“APPENDIX BPROCESS

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No.1

SUMMONS FOR DISPOSAL OF SUIT (O.V, r. 1 and r.5)(Title)

To

………………………………………….. [Name,description and place of residence.]

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Whereas……………………………………………hasinstituted a suit against you for……………………………………… you are herebysummoned to appear in this Court in person or by apleader duly instructed (and able to answer all materialquestions relating to the suit, or who shall beaccompanied by some person, able to answer all suchquestions, on the ……… day of …….. 19…/20….., at…….O’clock in the …… noon, to answer the claim; andas the day fixed, for your appearance is appointed forthe final disposal of the suit, you must be prepared toproduce on that day all the witnesses upon whoseevidence and all the documents upon which you intendto rely in support of your defence.

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Take notice that, in default of your appearance onthe day before mentioned, the suit will be heard anddetermined in your absence.

Given under my hand and the seal of the Court,that ……. Day of….. 19…./20…..

Judge.

Notice-1. Should you apprehend your witnesseswill not attend of their own accord, you can have asummons from this Court to compel the attendance ofany witness, and the production of any document thatyou have a right to call upon the witness to produce, onapplying to the Court and on depositing the necessaryexpenses.

2. If you admit the claim, you should pay the moneyinto Court together with the costs of the suit,to avoidexecution of the decree, which may be against yourperson or property, or both.”

“Calcutta- After Form No.1, insert the following Form,namely:- “No. 1A

SUMMONS TO DEFENDANT FORASCERTAINMENT

WHETHER THE SUIT WILL BE CONTESTED(O.V, rr. 1 and 5)

(Title)

To

………………………………………….. [Name,

description and place of residence.]

WHEREAS ………………………. has institutedsuit against you for …… you are hereby summoned toappear in this Court in person or by a pleader dulyinstructed, and able to answer all material questionsrelating the suit on the day of …… 19…/20…., at O’clockin the …….. noon in order that on that day you may informthe Court whether you will or will not contest the claimeither in whole or in part and in order that in the event A

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of your deciding to contest the claim either in whole orin part, directions may be given to you as to the dateupon which your written statement is to be filed and thewitness or witnesses upon whose evidence you intendto rely in support of your defence are to be producedand also the document or documents upon which youintend to relay.

Take notice that, in default of your appearance onthe day before mentioned the suit will be heard anddetermined in your absence and take further notice thatin the event of your admitting the claim either in wholeor in part the Court will forthwith pass judgment inaccordance with such admissions.

Given under my hand and the seal of the Courtthis day of …… 19……/20…… .

Judge.

Notice- If you admit the claim either in whole or inpart you should come prepared to pay into Court themoney due by virtue of such admission together withthe costs of the suit to avoid execution of any decreewhich may be passed against your person or property,or both.” (w.e.f. 25-8-1927)”

19. The aforementioned format of Process No.I is uniformlyprescribed for effecting service of summons which are issued underOrder V Rules 1 and 5 of the Code. It is, however, noticed that so far asState of UP (Allahabad) is concerned, it has prescribed a special formatof the summons for service under Order V Rule 20 whereas so far asCalcutta is concerned, it has not specifically prescribed any special formatfor effecting service under Order V Rule 20 of the Code on the defendantbut has prescribed a special format for effecting service under Order VRules 1 and 5 of the Code.

20. Since no specific format is prescribed for effecting service ofthe summons under Order V Rule 20 of the Code by Calcutta exceptprescribing a special format for effecting service under Order V Rules1 and 5 of the Code, the format prescribed for service of summonsunder Order V Rules I and 5 of the Code is also used for issuance ofsummons for effecting service under Order V Rule 20 of the Code.

21. In the format prescribed in the Appendix-B Process No.I orNo.IA (which is applicable to the case at hand because the suit in questionoriginates from Calcutta), we find that there is a specific column in thesummons where a “day, date, year and time” for defendant’sappearance is required to be mentioned.

22. In other words, the legislature while prescribing the format ofsummons in the Code has provided one column where the Court isrequired to mention a specific “day, date, year and time” for thedefendant’s appearance in the Court to enable him to answer the suitfiled against him/her. This is also the requirement prescribed underSection 27 of the Code as is clear from the words occurring therein“and may be served in the manner prescribed on such day”.

23. Order V Rule 20(3) provides that when the service is effectedby way of publication by the orders of the Court, the Court has to fix“time” for the appearance of the defendant, as the case may require. Inour opinion, this does not dispense with the requirement of mentioningthe actual day, date, year and time for defendant’s appearance in theCourt because it is prescribed in format.

24. The expression “time” has to be read harmoniously and injuxtaposition with the requirement prescribed under Section 27 read withstatutory format Process IA of Appendix-B appended to the Code.

25. Indeed, mentioning of the specific “day, date, year and time”in the summons is a statutory requirement prescribed in law (Code) and,therefore, it cannot be said to be an empty formality. It is essentiallymeant and for the benefit of the defendant because it enables thedefendant to know the exact date, time and the place to appear in theparticular Court in answer to the suit filed by the plaintiff against him.

26. If the specific day, date, year and the time for defendant’sappearance in the Court concerned is not mentioned in the summonsthough validly served on the defendant by any mode of service prescribedunder Order V, it will not be possible for him/her to attend the Court forwant of any fixed date given for his/her appearance.

27. The object behind sending the summons is essentially threefold-First, it is to apprise the defendant about the filing of a case by theplaintiff against him; Second, to serve the defendant with the copy of theplaint filed against him; and Third, to inform the defendant about actual A

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Aday, date, year, time and the particular Court so that he is able to appearin the Court on the date fixed for his/her appearance in the said case andanswer the suit either personally or through his lawyer.

28. Now coming to the facts of the case, we find that the summonsdated 17.11.2014, which was sought to be served on the defendants byBpublication published on 25.11.2014 in the Times of India and DainikBhaskar did not comply with the requirement of Section 27 read with Appendix-B (process) No.I and IA.

29. In other words, the summons dated 17.11.2004 published inthe papers (Times of India and Dainik Bhaskar) had material infirmityCtherein, which rendered the summons so also the service made on thedefendants bad in law.

30. The material infirmity in the summons was that it did not mentionany specific day, date, year and time for the defendants’ appearance inthe Court. This being the requirement of Section 27 read with Order VDRule 20(3) and Process-IA of Appendix-B, it was mandatory for theCourt to mention the specific working day, date, year and time in thecolumns meant for such filling. It would have enabled the defendants toappear before the Court on the date so fixed therein. It is a settled ruleof interpretation that when the legislature provides a particular thing tobe done in a particular manner then such thing has to be done in theEsame prescribed manner and in no other manner.

31. What was, however, mentioned in the summons in questionwas that the defendants should appear before the Registrar of the Courtwithin 15 days from the service of publication of this summons on themexclusive of the day of such service of the summons and are summonedFto appear before this Court in person or through advocate to answer theplaintiff’s claim on the day the case is set down for hearing upon whichdate you(defendants) must be prepared to produce all your witness andall your documents in your possession or power upon which you intendto rely in support of your case. The summons then also mentioned thatGyou (defendants) are hereby required to take notice that in default ofyour causing an appearance to be so entered, the suit will be liable to beheard and determined in your absence.

32. The aforesaid wording in the summons insofar as it pertainsto giving 15 days’ time without mentioning a specific day, date, year and H

time is not in conformity with the requirements of Section 27 read withAppendix B.

33. In the light of the foregoing discussions, service of summonson the defendants without mentioning therein a specific day, date, yearand time cannot be held as “summons duly served” on the defendantswithin the meaning of Order IX Rule 13 of the Code. In other words,such summons and the service effected pursuant thereto cannot be heldto be in conformity with Section 27 read with the statutory formatprescribed in Appendix B Process (I and IA) and Order 5 Rule 20(3) ofthe Code.

34. It is for this reason, we are of the considered opinion that theappellant (defendant No.1) was able to make out a ground contemplatedunder Order IX Rule 13 of the Code for setting aside the ex partedecree.

35. Once the appellant (defendant No.1) is able to show that“summons were not duly served on him” as prescribed under Section27 read with Appendix B Process IA and Order V Rule 20(3) of theCode then it is one of the grounds for setting aside the ex parte decreeunder Order IX Rule 13 of the Code. In our view, the appellant (defendantNo.1) is able to make out the ground.

36. In view of the foregoing discussion, we need not consider anyother ground though raised by the appellant(defendant No.1) in supportof their case because the aforesaid ground which we have dealt withthough not raised by the appellant in the Courts below but being a purequestion of law and going to the root of the matter affecting the veryjurisdiction of the Court could be allowed to be raised in this Court fordoing substantial justice.

37. Before parting, we consider it apposite to remind ourselveswith the apt observations of a learned Judge - Vivian Bose, J., which HisLordship made while dealing with the scope of Order IX in a leadingcase of Sangram Singh vs. Election Tribunal (AIR 1955 SC 425).

38. The learned Judge speaking for the Bench in his distinctivestyle of writing reminded the Courts to keep the following observationsin mind while deciding the rights of the parties which reads as under:

“A code of procedure must be regarded as such. It isprocedure something designed to facilitate justice and A

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Afurther its ends: not a penal enactment for punishment andpenalties; not a thing designed to trip people up. Tootechnical a construction of sections that leaves no room forreasonable elasticity of interpretation should therefore beguarded against (provided always that justice is done toboth sides) lest the very means designed for the furtheranceBof justice be used to frustrate it. Our laws of procedure aregrounded on a principle of natural justice which requiresthat men should not be condemned unheard, that decisionsshould not be reached behind their backs, that proceedingsthat affect their lives and property should not continue inCtheir absence and that they should not be precluded fromparticipating in them. Of course, there must be exceptionsand where they are clearly defined they must be given effectto. But taken by and large, and subject to that proviso, ourlaws of procedure should be construed, wherever that isreasonably possible, in the light of that principle.”

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39. In the light of the foregoing discussion, the appeal succeedsand is allowed. The judgments of the Single Judge and Division Benchare set aside. The appellant’s (defendant No.1) application filed underOrder IX Rule 13 of the Code (GA No. 766/2016) is allowed. As aconsequence, the ex parte decree dated 09.02.2015 passed in C.S. No.E15/2014 is set aside. The civil suit is restored to its original file.

40. Parties to appear before the concerned Court on 05.03.2018to enable the Court to decide the suit. The appellant (defendant No.1)will be granted an opportunity to file the written statement. The Courtwill ensure disposal of the suit on merits in accordance with law within aFyear as an outer limit.

41. It was, however, brought to our notice that during the pendencyof this appeal, the appellant was asked to deposit a sum of Rs.47.50lakhs which they have deposited. Now that the suit is restored to itsoriginal file for its decision on merits, we make it clear that the depositGand withdrawal of Rs.47.50 lakhs would be subject to the final result ofthe suit.

Ankit Gyan

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