Review application

This query is : Resolved 

Online (Querist)
06 April 2021

In response to Mat suit that was decreed ex-parte, the respondent filed an application u/ order 9 rule 13. The application was allowed on erroneous ground that service was not undertaken by court process server. However, during review of the said order, the HC acknowledged that the service of summon was undertaken in ‘more than one way’ but prayer of petitioner to set aside the order u/o 9 R 13 was denied because for different reason as stated by HC ‘there was a change in 'set of Lawyers' during review; which again was inaccurate. My query is whether I could ask for review of the order in lower court where the decree was set aside based on the High Court order?

Dr J C VashistaOnline (Expert)
07 April 2021

The ex-parte decree passed by family/ district court is stated to have been set aside under order IX Rule 13 CPC, which is exercised by same court, whereas, you have mentioned it has been set aside by High Court, accordingly there is some misunderstanding in the facts.
Change of set of lawyer(s) is no ground to invoke order IX Rule 13 CPC to set aside the ex-parte decree, which is misconceived.
What is your locus standi to the case ?
It is better to show the case file/documents a local senior/ prudent lawyer for appreciation of facts and advise.

prabirOnline (Querist)
07 April 2021

The basic point - the order in lower court was passed with the premise that service of summon was not complete as service through court process server was not undertaken. The order was faulty as service was undertaken by court process server. Hence challenged in High Court. While HC admitted that service was complete but prayer was rejected as 'set of lawyer' was changed during the proceeding. My query is whether I could seek a review in lower court of its order based on admission of high court in its order that service by court process server was undertaken.

ashok kumar singhOnline (Expert)
08 April 2021

agreed with views expressed by earlier experts, therefore no further comments, so far.

Advocate Bhartesh goyalOnline (Expert)
08 April 2021

No, Review petition Is not maintainable as against the order under o 9 r 13 cpc,. you approached to H.C.and H.C has dismissed your Revision petition and confirmed trial court order so now revIew in trial court is not maintainable.

prabirOnline (Querist)
08 April 2021

Yes, but the reason given in the lower court order for dismissing our prayer was not accepted by the HC. On the contrary, HC accepted what we had stated regarding service of summon.The high court rejected our application on a completely different ground that there was a change in 'set of lawyers' during the proceedings of the review. In that case the actual matter has not yet been resolved.

Advocate Bhartesh goyalOnline (Expert)
08 April 2021

Petition u/ o 9 r 13 cpc may be filed not only the ground of non service of summons but other grounds if reasonable may also be acceptable and H.C though accepted that service of summons to opposite party was proper but on other reasonable ground confirmed the order of trial court and dismissed your revision.Now no chance better contest the case on merits.

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