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Fullerton India Credit Co. Ltd Versus Aftab Ahmed
Court / Forum : Delhi High Court Citation : CM(M) 364/2020 Coram : Justice Sanjeev Sachdeva Subject : Mentioning of incorrect provision in application Date of Decision : June 16, 2020
The petitioner had approached trial court under Order IX Rule 13 read with section 151 of Code of Civil Procedure, 1908 (“CPC”) against an order dated February 21, 2018, whereby petitioner was proceeded ex parte and his application under section 8 of the Arbitration and Conciliation Act, 1996 was dismissed in default.
The trial court then dismissed the application vide order dated March 13, 2020 primarily on the ground that the relief sought is not available under Order IX Rule 13 of CPC i.e. setting aside of ex parte order and the same is beyond the scope of Order IX Rule 13 CPC.
Aggrieved by the said order, the Petitioner approached the Hon’ble High Court.
Whether the trial court was correct in dismissing the application on the basis of incorrect mention of the provision?
The Hon’ble High Court held that the trial court has committed an error in its order dated March 13, 2020 by not noticing that mere incorrect mention of the provision would not disentitle a party from relief, if it is available on merits.
The Hon’ble High Court further observed that trial court should have entertained the application and treated the same as an application under Order IX Rule 7 and considered whether on merits setting aside of ex parte order was warranted or not.
Accordingly, the order dated March 13, 2020 was set aside to the extent that the order proceeded ex parte against the petitioner.