Legal Analysis of Order 9 Rule 6 CPC
Order VIII-
Having rejected the said two applications the Court proceeded to try the case ex parte. The impression is unmistakable that the learned Advocate for the petitioner was thereafter, not allowed to participate in the proceeding because the Labour Court was determined to proceed ex parte. We consider, thereafter that the ex parte proceeding was totally uncalled for and without jurisdiction both in terms of clause ( d) of sub-section (2) of section 36 of the said Ordinance and in terms of Order VIII of the Code of Civil Procedure.
Adamjee Jute Mills vs Chairman Labour Court 39 DLR 11.
Order VIII rule 1 (after amendment)—
A party was not bound to put in a written statement under the old law, but now it is obligatory for the defendant to file a written statement.
Adamjee Jute Mills vs Chairman Labour Court 39 DLR 11.
Order VIII rule 1-
Filing of written statement by the defendant within the prescribed period of time is now a mandatory provision of law.
Lal Mamud and others vs Siraj Miah and others 45 DLR 638.
Order VIII rules 1 & 10-
The defendant has given reasonable explanation for delay in filing his written statement in the case-ends of justice will be frustrated if the same is not accepted.
Fazlul Huq vs Md Tohed Ali and others 47 DLR 326.
Order VIII rule 1 & Order XLI rule 12-
Right ‘to appear and answer an appeal’ as given under rule 12 is completely different from that to contest a suit by filing a written statement under rule 8(1) of the Code. The appellate Court fell in serious error of law in equating both the rights as same and in allowing the opposite parties to file written statement for the first time in appeal.
Narayan Chandra Saha and another vs Jatindra Chandra Saha and others 52 DLR 5.
Order VIII rules 1-5 and Order XIII rules 1-2-
Whether in view of the repeal of rules 1-2 of Order XIII the provisions of rules 15 of Order VIII, are applicable to the present case.
Abul Hashem Khan vs Shamsuddin Khan 41DLR415.
Order VIII rules 2 and 5-
Code of Civil Procedure (Amendment) Ordinance [XL VIII of 1983] came into force on 5-9-1983 before the judgment which was delivered on 30-8-1984. Rules 1 and 2 of Order XIII having been repealed on 5-9-1983 are not applicable to the present case.
Abul Hashem Khan vs Shamsuddin Khan 41 DLR 415.
Order VIII rules 2 and 5-
The defendant is not required to file the document with the written statement and under the amended rule 5 of Order VIII, the document not filed under the amended rule 2 may be received with the leave of the Court.
Abul Hashem Khan vs Shamsuddin Khan 41 DLR 415.
Order VIII rule 3-
Cause title forms very much a part of the application (for pre- emption). Statement made therein should be denied specifically or by implication.
Idris Mia vs Promode Ranjan Das & others 45 DLR 126.
Order VIII rule 5-
A party cannot adduce evidence unless he pleads his case in the pleading.
Shamsul Haque vs Saralat Ali 46 DLR 57.
Order VIII rule 5-
The plaintiff’s assertion of facts made in the plaint have not been denied specifically or by necessary implication and there being no contrary evidence on record the Courts below erred in law in dismissing the suit by resorting to speculative assumptions.
Dayal Chandra Mondal and others vs Assistant Custodian Vested and Non-Resident Properties (L&B) and others 50 DLR 186.
Order VIII rule 5-
Since specific assertion was not denied specifically either in written statements or in evidence the Court is not inclined to permit the defendants to raise such a question at this stage.
Nurul Islam and others vs Jamila Khatun and others 53 DLR (AD) 45.
Order VIII rule 6-
The counter-claim raised by the defendnt does not come within the purview of rule 6 of Order VIII as the sum claimed by way of damages is not an ascertained amount.
Sonali Bank vs Ali Tannery Ltd and others 48 DLR 57.
Order VIII rule 6 & Order XLI rule 27-
Documents placed before the Appellate Division for the first time to be accepted as additional evidence cannot be accepted at such late stage as no case of set-off was made out in the written statement.
Bangladesh Shipping Corporation vs Rakibuddin Ahmed and others 48 DLR (AD) 203.
Order VIII rule 9-
Defendant entitled to file additional written statement, challenging the will, when new plaintiffs are added.
Most Golbanu vs Sreemati Uma Rani Roy Chowdhury 38 DLR 175.
Order VIII rule 9-
Where the plea or reason advanced for filing an additional written statement is unsubstantiated and belated the Court shall refuse to entertain such additional written statement.
Abdur Rahman vs Sajjadur Rahman 51 DLR 420.
Order IX-
Order IX relates to the date of hearing for which a summons has been issued to the defendant while Order XVII relates to adjourned hearing.
Adamjee Jute Mills vs Chairman Labour Court 39 DLR 11.
Order IX rules 2, 3 & 4-
After restoration of a suit to its original file and number a fresh notice upon the defendant is absolutely necessary in equity and as of right for preventing injustice.
Siddique (Md) vs Yeakuti Begum and others 49 DLR 402.
Order IX rule 3-
Ordinarily failure of Counsel’s clerk to inform him about the date of hearing of the case will not be regarded as a sufficient ground for his non-appearance but there may be special circumstances when a clerk’s failure may amount to be a sufficient cause.
Alfu Miah and others vs Government of the People’s Republic of Bangladesh 45 DLR (AD) 112.
Order IX rule 3-
After rejecting the application for issuance of warrant, without passing further order directing the parties to get ready, passing of the order of dismissal of the suit is hit by Order IX, rule 3 of the Code.
Najabatullah vs Alokeshi Namasudra and others 51 DLR 454.
Order IX rule 3 & Order XVI rule 10(1)(3) –A
civil Court can issue warrant of arrest to ensure appearance of any witness or party in a litigation, before it, ifthe court thinks his presence necessary for final and effective decision in a dispute.
Najabatullah vs Alokeshi Namasudra and others 51 DLR 454.
Order IX rule 4—
None of the rules of Order IX CPC empowers a Court to dismiss a suit on a date not fixed for hearing.
Sonali Bank vs Nurul Kader 46 DLR 21.
Order IX rules 4 & 13-
The provisions contained in Order IX, rule 4 of The Code can be availed of only by plaintiff and definitely not by defendant.
Ali Akbar vs Farijuddin and another 53 DLR 284.
Order IX rule 6-
Under Order IX, rule 6 where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then if it is proved that the summons was duly served, the court may proceed ex parte.
Adamjee Jute Mills vs Chairman Labour Court 39 DLR 11.
Order IX rule 6-
In order to succeed in his case, contested or otherwise, the plaintiff must prove his own case-the weakness of the defendant’s case is no ground for passing a decree in favour of the plaintiff.
Jinnatunessa vs Bangladesh, represented by the Deputy Commissioner, Mymensingh 48 DLR 208.
Order IX rule 6—
Service returns of summons are not in the record nor were the defendants served additionally by registered post with acknowledgement due. Nor was there any attempt on the part of the Subordinate Judge to satisfy himself that the non-appearing defendants were served with summons before fixing the suit for ex parte hearing. High Court Division sent the suit back to the Trial Court for fresh trial in accordance with law after setting aside the ex parte decree passed by it.
Syed Ameenul Haq vs MH Arif 40 DLR 314.
Order IX rule 6-
Hearing in default of a written statement stands on a separate footing from an ex parte hearing under Order IX, rule 6, CPC. Before the decree is passed in a suit fixed for hearing in default of written statement, the defendants may come to the court and file a written statement and it remains in the domain of the court’s discretion to accept or reject that written statement.
KDH Laboratories Ltd vs Pubali Bank 40 DLR 1.
Order IX rule 6—
If the court accepts the written statement in exercise of its discretion, it must give reasons for it on failure of which the superior Court will be at liberty to interfere with the decision. In the present case the discretion was exercised rationally.
KDH Laboratories Ltd vs Pubali Bank 40 DLR 1.
Order IX rule 6 and Order XVII rule 2-
Ex parte hearing can only be ordered under two instances i.e. under Order IX, rule 6 and Order XVII, rule 2 for filing written statement in default thereof the defendant can still appear and argue his case without the written statement.
Adamjee Jute Mills vs Chairman, Labour Court 39 DLR 11.
Order IX rule 6 and Order XVII rule 2-
On failure of the defendant to file written statement on the date fixed, the suit cannot be fixed for hearing ex parte but will be fixed for hearing in default of the written statement on which day the defendant has right to appear and participate: hence the proceeding will not be ex parte.
Adamjee Jute Mills vs Chairman, Labour Court 39 DLR 11.
Order IX rule 7-
An ex parte proceeding being not an ex parte proceeding in the eye of law, the provisions of Order IX, rule 7, CPC are not attracted. The decision of the Indian Supreme Court reported in AIR 1964 (SC) 99 3 holding that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of application under Order IX, rule 7 has no manner of application.
KDH Laboratories Ltd vs Pubali Bank 40 DLR 1.
Order IX rule 8 and Order XVII rule 2-
When prayer by the lawyer for adjournment of the plaintiff’s case is refused by the Court, whereupon the lawyer withdraws from the case and the case thereupon is dismissed-the conclusion is there was no appearance on behalf of the plaintiff and as such the dismissal order is one passed under Order . IX, rule 8 read with Order XVII, rule 2 CPC.
Nurul Huq vs Sonali Bank 39 DLR 223.
Order IX rule 9-
The learned Advocate appearing for the petitioner submits that the learned Assistant Judge acted wrongly in allowing the application under section 151 of the Code when there is specific provision under Order IX, rule 9 of the Code of Civil Procedure for restoration of the suit.
Zahirul Alam vs MN Thakur 40 DLR 16.
Order IX rule 9-
High Court Division held that since the learned Assistant Judge exercised his jurisdiction under section 151 CPC in setting aside the order of dismissal, no interference is called for, section 115 CPC authorises High Court Division to interfere into the interlocutory order.
Zahirul Alam vs MN Thakur 40 DLR 16.
Order IX rule 9-
Application moved under Order IX, rule 9 with a prayer for condoning the delay under section 151 in its filing-the court has the inherent power to grant it for ends of justice.
Karamat Ali vs Ramizuddin Ahmed 39 DLR 336.
Order IX rule 9-
Boycott by the local Bar of the Munsif’s Court is sufficient cause for failure of the suitor to know as to the time when the works of the Court would be resumed by the lawyers’ attendance. Any delay in filing application under Order IX, rule 9 CPC in circumstances like this is condonable.
Shaikh A Kader vs Kalu Sk 37 DLR 304.
Order IX rule 9-
Fresh suit-Same cause of action-Since two suits were filed one after another upon the same cause of action, the later suit ought to have been stayed. The later suit having been brought before the dismissal of the Title Suit No. 210of1981 the bar of Order IX rule 9 has no manner of application in the present case.
Hajee Abdul Latif vs Abdul Haq and others 44 DLR 601.
Order IX rule 9-
The Court below committed no illegality in holding that the subsequent application under Order IX rule 9 was not maintainable.
Alhaj Mokler Hussain Talukder vs Ainuddin Ahmed and others 45 DLR (AD) 37.
Order IX rule 9-
It is wrong to say that for a remedial action against an order time would start to run against one from the date of the order and not from the time when one comes to know about it.
When an injury is caused to a party due to any mistake or default committed by a court or its officers, it is not only the right but also the duty of the court to correct its own mistake.
The question of limitation is immaterial in a case, when the court in restoring the suit merely corrected the mistake of its own officers of not informing the lawyers of the parties about return of the record and the next date fixed.
Keramat Ali Bhuiyan vs Ramizuddin Ahmed Bhuiyan 43 DLR (AD) 58.
Order IX rule 9-
Since the Artha Rin Adalat Act does riot provide any provision, directly or indirectly, contrary to provision of Order 9 rule 9 CPC an application under Order IX, rule 9 CPC can be entertained by the Artha Rin Adalat.
Sonali Bank vs Md Al-Akram (Badal) and others. 46 DLR 671.
Order IX rule 9-
The trial Court was required to look into the previous orders and apply its mind as to whether prayer for adjournment was genuine. The Court having allowed 17 adjournments contributed to the abuse of the court process. The failure of the plaintiff to conduct the hearing of the suit, if considered in the context of his past conduct, cannot be said to be due to any sufficient cause.
Abdul Mannan Miah (Md) vs Abdul Jalil Miah and others 49 DLR 524.
Order IX rule 9-
From the absence of any provision in the Ain prohibiting filling of an application under Order IX rule 9 of the Code and from the specific mention of the Code in subsection (5) of section 5 of the Ain, provisions of Order IX rule 9 of the Code may be followed by the plaintiff financial institution before the Artha Rin Adalat for setting aside an ex parte order of dismissal of the suit for default.
Islami Bank Bangladesh Limited vs Al-Haj Md Shafiuddin Howlader & another 52 DLR (AD) 76.
Order IX rule 9-
When a SCC Suit is dismissed for default provision of Order IX rule 9 of the Code of Civil Procedure is applicable.
Abdul Waresh vs Md Abdul Halim and others 53 DLR 608.
Order IX rule 9-
Though High Court Division found relying upon the case of Sultana Jute Mills Ltd that a revisional application under section 115 of the Code against an order of the Artha Rin Adalat is not maintainable made the Rule absolute invoking inherent power of the court under section 151 of the Code.
Agrani Bank vs Artha Rin Adalat and others 55 DLR 389.
Order IX rule 9-
When the factslallegations pleadings in two suits filed one after another are same, the parties are same, the suit land islare same and that on the same pleadings the earlier suit was dismissed even though ex parte, the second suit on the same pleadings is barred under Order IX rule 9 of the Code.
Taiyaba Zaman vs Gias Uddin Ahmed and other 55 DLR 523.
Order IX rule 9-
Owing to absence of any provision in the Ain prohibiting filing of an application under Order IX rule 9 of the Code and the specific mention of the Code in sub-section (5) of section 5 of the Ain, the provisions of Order IX rule 9 of the Code may be followed by the plaintiff financial institution before the Artha Rin Adalat for setting aside an ex parte order of dismissal of the suit for default.
Agrani Bank vs Artha Rin Adalat and others 55 DLR 389.
Order IX rule 9 & Order XXII rule 10-
Assignee’s claim to be added as· a party in a Miscellaneous case under Order IX, rule 9 of the Code-It will be for the assignors to satisfy the Court that there was sufficient cause for their nonappearance in the suit they wanted to restore. The assignee is hardly in a position to prove independently the assignor’s case as made out in the application under Order IX rule 9 and in that view the assignee is a redundant party in the Miscellaneous case.
Almasuddin vs A Wadud Khan 42 DLR 391.
Order IX rule 9 and Order XLIII rule l(c) and section 151-
Suit dismissed for not depositing cost within time-An order under Order IX, rule 9 is appealable under Order XLIII, rule 1 ( c ), but Court can restore the suit invoking its power under section 151 to secure the ends of justice.
An order passed by a Court under Order IX, rule 9 CPC is no doubt an appealable order under Order XLIII, rule l(c) CPC. In this case from the facts it appears that the application under section 151 of the Code was filed for restoration of the suit on setting aside the order of dismissal of the Miscellaneous Case which was dismissed not for non-appearance of the plaintiff when the case was taken up for hearing but for not depositing the cost within the time allowed by the Court. The power under section 151 of the Code is not a new one, it is inherent in it by virtue of its duty to do justice between the parties before it and it is within the province of the Court to invoke such power to secure the ends of justice regard being had to the facts and circumstances of a given case.
Rajiqul Islam & another vs Abul Kalam 42 DLR 19.
Order IX rule 9 read with Order XLIII rule 1(c)-
When an application under Order IX rule 9 of the Code is dismissed for default, it is an appealable order but when the case is dismissed not for a default but for non-payment of cost, then the order can be set aside by invoking section 151 of the Code on acceptance of the costs subsequently.
Wajeda Khatun and others vs Saonatun Bewa 55 DLR 460.
Order IX rule 9 and section 151-
If there is specific provision in the Code of Civil Procedure which covers a particular case or if there is a positive prohibition against an act the powers under section 151 of the Civil Procedure Code cannot be invoked-An important exception to this general rule: Where a mistake of a Court’s Officer causes injustice to a particular party, the power under section 151 of the Code can be exercised for the purpose of giving necessary relief.
Syed Azizul Haque alias Nanna Miah vs Sonali Bank 42 DLR 198.
Order IX rule 9 and section 151-
Provision of section 5 of the Limitation Act applicable to an application under Order IX, rule 9 CPC. As no application for condonation of delay was filed nor any ground for condonation of delay was made out section 151 CPC cannot be invoked.
Asstt Custodian vs Jugal Chandra Saha 41 DLR 473.
Order IX rule 13-
Order of dismissal for default being an appealable order under Order XLIII, rule l(d) the Court cannot interfere under section 151 CPC and pass an order restoring a case to file.
Md M Hossain Mollah vs Asst. Dy Custodian 37 DLR 287.
Order IX rule 13-
Suit for specific performance of contract for the sale of the suit property instituted by the plaintiff-respondent. Defendant-appellant denied the contract by filing a written statement-The case was fixed for hearing on 16-2-1983-0n that day the appellant filed an application for adjournment with a medical certificate on the ground of illness-The prayer for adjournment was not granted and the suit was decreed ex parte on that date. Miscellaneous Case under Order IX, rule 13 of the Code of Civil Procedure was started- Then again the case was fixed for hearing on 26- 7-1983-The appellant unsuccessfully moved another application for examination of her doctor on 13-9- 1983 and on 1-11-1983 the Miscellaneous Case was dismissed-High Court Division refused to interfere with the order.
Held: Appellate Division allowed the appeal setting aside the orders of the courts below after considering the facts and circumstances of the case.
Khaleda Roushan Ara vs Nurul Huq (Md) 42 DLR (AD) 48.
Order IX rule 13-
Labour Court has no jurisdiction to set aside an ex parte decree passed against a defendant.
Adamjee Jute Mills vs Chairman Labour Court 39 DLR 11.
Order IX rule 13-
Date fixed for hearing happened to be a holiday. Party not appearing in court on the next date-Dismissal of the case for non-appearance improper-Restored to hearing under Order IX, rule 13.
Md Bandi Ali Khan vs Govt of Bangladesh 38 DLR 258.
Order IX rule 13-
In the main application under Order IX, rule 13 the appellant has sought to explain the reasons of his delay in filing the miscellaneous case though he did not expressly pray for condonation of delay, yet the delay was condoned by the court on waiving the failure to pray for condonation.
Chaudhury Saifuddin Ahmed vs Shamsuddin 40 DLR 10.
Order IX rule 13-
When the party seeking to have the ex parte decree set aside is found wilfully neglectful to comply with provision of section 17 (regarding deposit of the dues or furnishing security bond) even though the defect was brought to his notice-Ex parte decree cannot be set aside.
Md Ebadullah Bepari vs Nikhil Chandra Das 37 DLR (AD) 174.
Order IX rule 13-
It was submitted that the appellant had only taken two or three adjournments and that a medical certificate was produced as to her suffering from heart disease, and that her application for time for examining the doctor being rejected she was denied opportunity to prove her cause of absence on the date of hearing of the Miscellaneous Case. There is substance in the submission. Judgment and order of the courts below are therefore set aside and the Miscellaneous case is allowed.
Khaleda Roushan Ara vs Md_ Nurul Huq 42 DLR (AD) 48.
Order IX rule 13-
The compromise decree in question was passed even without issuing summons upon defendant No. 8. This speaks of fraud. Studied in the light of decisions cited, limitation was not a material point for the decision of allowing the Misc. case under Order IX r. 13 CPC.
Moynul Hasan vs Nazmul Haq 43 DLR 82.
Order IX rule 13-
Defect of Party-All that is required in an application under Order IX rule 13 of the Code is to implead the person or persons in whose favour the decree is passed and not others. Since the petitioner who is the decree holder has been impleaded in this case, it cannot be said that the miscellaneous case suffers from any defect of party.
Abdul Mannan vs Waliul Huq 46 DLR 630.
Order IX rule 13-
Appeal-Effect of its disposal-‘Appeal’ which has not been defined in the Code, is meant to be an application by an aggrieved party asking an appellate Court to set aside, modify or revise a decision of a subordinate court-an ‘appeal’ even if irregular, incompetent or time-barred is nonetheless an appeal-the order of dismissal of a memorandum of appeal as time-barred comes within the deeming provision of section 2(2) of the Code, because by such an order the rights of parties with regard to matters in dispute are finally determined.
Abdul Mannan vs Jobeda Khatun & others 44 DLR (AD) 37.
Order IX rule 13-
Setting aside ex parte decree-Before fixing the suit for ex parte hearing the trial Court must satisfy itself that notices were duly served upon the substituted heirs. No such satisfaction was recorded and then the records did not show that notices were issued both through the usual course of process server and under registered post (ref 40 DLR 314). In that view ends of justice will not be met if the original suit is not restored to its file and number.
Gulshan Ara Begum vs Moazzem Hossain 43 DLR 481.
Order IX rule 13-
Setting aside decree passed ex parte–Order of remand for considering the question of limitation-In the instant case no question of limitation was mooted or discussed by the trial Court and hence it could not be said that by restoring the case the delay was impliedly condoned. When a matter is sent back and the superior Court in its discretion directs that the parties be given an even opportunity to place their respective cases such discretionary order should not ordinarily be interfered with unless it causes a serious prejudice to one of the contending parties.
Modern Shipping Agencies vs CJWTC Ltd 43 DLR (AD) 179.
Order IX rule 13-
No ex parte decree would be set aside for its briefness when the defendant fails to bring home either of the two grounds on which such a decree can be set aside.
Alfu Miah and others vs Government of the People’s Republic of Bangladesh 45 DLR (AD) 112.
Order IX rule 13-
Since, on the face of the record the application under Order IX rule 13 CPC is barred by limitation under Article 164 of the Limitation Act and the Court has not lawfully condoned the delay the Assistant Judge clearly erred in law in passing the impugned order setting aside the ex parte decree.
Akbar Hossain Khan (Md) and another vs Md Awlad Hossain Khan and another 49 DLR 561.
Order IX rule 13-
When an ex parte decree is challenged on ground of being obtained by fraud, and some elements of fraud and collusion are found on the record, the court is not to sustain such fraudulent decree even if an application seeking the setting aside of the ex parte decree is barred by limitation.
Government of Bangladesh and another vs Mashiur Rahman and others 50 DLR (AD) 205.
Order IX rule 13-
As the suit has been restored on payment of compensatory cost to the petitioners, it is not a fit case for interference.
AKM Jamaluddin and others vs Mantu Lal Majumder 49 DLR (AD) 150.
Order IX rule 13-
The court below having found service of summons not satisfactory gave the defendant a chance to contest the suit-There is no illegality occasioning failure of justice in setting aside the ex parte decree.
Sharif Ullah Patwary and others vs Jharna Dhara Chowdhury and another 47 DLR 307.
Order IX rule 13-
In order to set aside an order made ex parte the party which seeks such order should be clean in making the ground for setting aside the order and the court should not exercise its jurisdiction in allowing such application without application of its mind to the facts of the case.
Jasimuddin (Md) and another vs Government of the People’s Republic of Bangladesh represented by the Deputy Commissioner. Dhaka 47 DLR 585.
Order IX rule 13-
The defendant having not made out a case that he was prevented by sufficient reasons from appearing in the court on the date fixed for ex parte hearing he could not come for setting aside the ex parte decree showing cause for his non-appearance on the earlier date.
Sonali Bank vs Mozaffor Hossain 50 DLR 174.
Order IX rule 13-
It will be wholly inequitable to permit the defendants to prove their facts in this Court after l 0 years. The defendants must take the consequence for their own laches.
Red Sun Limited& others vs Uttara Bank 51 DLR (AD) 256.
Order IX rule 13-
Since the decree holder petitioner accepted the cost, so he cannot attack the court’s order for setting aside the ex parte decree as the petitioner cannot approbate and reprobate at the same time.
Muklesur Rahman (Md) vs Waziullah 51 DLR 418.
Order IX rule 13-
An important order as the transfer of the case from one Court to another should invariably be communicated to the parties concerned and in making of such communication the signature of the parties or their Advocates should be obtained and when signatures are not obtained, the order sheets should show that the information has been communicated.
Santi Gopal Dey and others vs Maliza Rani Saha and others 51 DLR290.
Order IX rule 13-
The Miscellaneous Case under Order IX, rule 13 of the Code was incompetent against the ex parte order passed by the District Judge in Miscellaneous Case No. 28 of 1979 in view of Sub-Article (10) of Article 27 of President’s Order 7 of 1978, inasmuch as, the said ex parte order was liable to be challenged only . by an appeal to the High Court Division.
Safiqueuddin Ahmed (Md) and another vs House Building Finance Corporation 53 DLR 80.
Order IX rule 13 and Order V rule 19A –
Ex parte decree-Delivery of possession of the land given in execution of the ex parte decreeWhether the trial Court which passed the ex pane decree on being satisfied that the summons was duly served upon the defendant by recording a finding to this effect has jurisdiction to go against its own finding and set aside the ex parte decree passed by the trial Court itself, although the defendant did not depose on oath before the Court that he had not received the summons.
Md Insan Ali vs Mir Abdus Salam 40 DLR (AD) 193.
Order IX rule 13 and Order V rule 19-
AThe onus to prove that summons was duly served upon the defendant is on the plaintiff’=He discharged his onus of proof as the process-server submitted his report, along with a declaration, that he served the summons by hanging it on the gate of the defedant when the latter refused to accept it-Examination of the process-server when he submits his report with a declaration is not mandatory in view of rule 19 A of Order V, CPC but his examination is mandatory when he has simply submitted his report about the service of summons without any verification or declaration that he had served the summons upon the defendant. Onus shifted to the defendant that the summons was not served upon him.
Md Insan Ali vs Mir Abdus Salam 40 DLR (AD) 193.
Order IX rule 13, Order XLIII rule l(d)-
Maintainability of appeal against dismissal of a case under Order IX, rule 13 at early stage and order of setting aside ex parte decree-Since the statute provides remedy for dismissal of application under Order IX rule .13 for default, whatever might be the state of passing the order of dismissal, appeal arising out of the order of such dismissal is maintainable. But the Miscellaneous Case under Order IX rule 13 having been dismissed for non-filing of requisites and not on merits, the . Appellate Court committed error of law in setting aside the relevant ex parte decree. Order dismissing the Miscellaneous case is .set aside and the case is sent back for hearing on merits.
Dilwar Hossain vs Nani Gopal Dutta 42 DLR 497.