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Ex-Parte Decree and Remedies Available

Under Order 9, Rule 6(1)(a) the court may proceed ex-parte and pass an ex-parte decree when it deems fit that the defendant has absent himself from the court on the date of hearing stated in the summons served to him in accordance with the provisions of the Code.

Order 9, rule 6(1)(a) states that:

Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing

. The Rule further classifies this situation into three distinct scenario
  1. When summons duly served. if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte.
  2. When summons not duly served. if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant.
  3. When summons served but not in due time. if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons.
Decree can only be given in relation to a suit. Although CPC does not define what suit means, in Hansraj vs Dehradun Mussoorie Tramways Co. Ltd.[1] the Privy Council defined the term suit as a civil proceeding instituted by the presentation of a plaint.

Consequences of Non Appearance of Parties (Order 9)

The general provisions of CPC are based on the principle that both the parties must be given an opportunity to be heard. The proceedings must not be held to the disadvantage of one party. Order 9 lays down rules regarding the appearance and the consequences of nonappearance of a party in the hearing.

Appearance and Non-Appearance

Rule 1 - Parties to appear on day fixed in summons for defendant to appear and answer:

On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.

Dismissal of Suits

Rule 2 - Dismissal of suit where summons not served in consequence of plaintiff’s failure to pay cost:

Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, or to present copies of the plaint or concise statements, as required by rule 9 of order VII, the Court may make an order that the suit be dismissed. Provided that no such order shall be made, if, notwithstanding such failure the defendant attends in person (or by agent when he is allowed to appear by agent) on the day fixed for him to appear and answer.

Rule 3 - Where neither party appears, suit to be dismissed:

Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed

Rule 4 - Plaintiff may bring fresh suit or Court may restore suit to file:

Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in rule 2, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.

Rule 5 - Dismissal of suit where plaintiff after summons returned unserved, fails for one month to apply for fresh summons:

(1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved the plaintiff fails, for a periods of one month from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that-
  1. he has failed after using his best endeavors to discover the residence of the defendant, who has not been served, or
  2. such defendant is avoiding service of process, or
  3. there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.
(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

Ex parte Proceedings

Rule 6 - Procedure when only plaintiff appears

  1. Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-
    (a) When summons duly servedif it is proved that the summons was duly served, the Court
    (b) When summons not duly servedif it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant;
    (c) When summons served but not in due timeif it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
     
  2. Where it is owing to the plaintiffs' default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.

Rule 7- Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.

Where the Court has adjourned the hearing of the suit, ex parte, and the defendant, at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

Rule 8 - Procedure where defendant only appears

Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

Rule 9 - Decree against plaintiff by default bars fresh suit:

  1. Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
     
  2. No order shall be made under this rule unless notice of the application has been served on the opposite party.

Rule 10 - Procedure in case of non-attendance of one or more of several plaintiffs.

Where there are more plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may, at the instance of the plaintiff or plaintiff’s appearing, permit the suit to proceed in the same way as if all the plaintiff’s had appeared, or make such order as it thinks fit.

Rule 11 - Procedure in case of non-attendance of one or more of several defendants.

Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear.

Rule 12 - Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person.

Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the court for failing so to appear, he shall be subject to all provisions of the foregoing rules applicable to plaintiffs and defendants, respectively who do not appear.

Setting aside Decrees ex parte

Rule 13 - Setting aside decree ex parte against defendant

In any case in which a decree is passed parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. And that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.

Rule 14 - No decree to be set aside without notice to opposite party.

No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.

Remedies Against Ex Parte Decree

  1. An Application Under Order 9, Rule 13,
    Order 9 Rule 13 states that while setting aside ex-parte decree, the defendant may apply to the Court by which the decree was passed for an order to set it aside and if the Court is satisfied that the summons were not duly served, or that he was prevented by any sufficient means from appearing when the suit was called on for hearing, the Court may make such order setting aside the decree against him as it thinks fit, and shall appoint a day for proceeding with the suit, provided that the decree was of such a nature that it could not be set aside as against such defendant but it may be set aside as against all or any of the other defendants also.
     
  2. Appeal Under Section 96
    Section 96-Appeal from original decree
    (2) An appeal may lie from an original decree passed ex parte
    Unless expressly provided, appeal lies from any decree passed by the court. In cases, where the value of suit does not exceed Rs.10, 000 appeal can only be filed on question of law. When a decree has been passed against the Defendant as Ex-Parte appeal lies. In cases headed by two or more judges, the majority decision shall prevail. In case there is no majority, then the decree of lower court shall be confirmed.
     
  3. A Review Application Under Section 114 of C.P.C.
    Section 114 states that-
    Review- Subject as aforesaid, any person considering himself aggrieved-
    (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.
    (b) by a decree or order from which no appeal is allowed by this Code, or
    (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
Section 114 basically empowers the court to review its order if the condition precedent laid down therein are satisfied .the substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided under the Section 114 of the code in terms whereof it is empowered to make such order as it thinks fit[2]

In another case Kaptur Agro Forest Enterprises V. Union Of India[3] were the question regarding the concession in respect of and overhead charged was concluded in the earlier writ petition by the allotters and the special leave petition in a special leave petiole by supreme court also dismissed.

Grounds
Order 9, Rule 13 prescribes two grounds for setting aside an ex-parte decree.
  • That the summons was not duly served, or
  • That the defendant was prevented by sufficient cause from appearing when the case was called on for hearing.
If either of these conditions is satisfied, the court must set aside the decree and where these conditions are not satisfied the decree cannot be set aside.

This question has to be decided on the basis of evidence or affidavits:
  • Summons not duly served
    Prior to proceedings ex parte, a court must record a declaration of due service under Order 5 rule 19 (Issue and Service of Summons, Examination of serving officer), this is mandatory. Where there is nothing to show due compliance with rules 13 (Service on agent by whom defendant carries on business) and 20 (Substituted service) of Order 5, the decree should be set aside. Where the summons has not been duly served, the ensuing proceedings will be a nullity.

    Due service refers to service which effectively brings the claim to the knowledge of the defendant and is effected in accordance with the provisions of the code relating to service of summons and in time for the defendant to attend and at the proper address.

    By virtue of the proviso, an ex parte decree will not be set aside on the ground of irregularity in the service of summons, when the court for reasons to be recorded, is satisfied, that notwithstanding such irregularity, the defendant had knowledge in sufficient time to appear on that date and answer the claim.
     
  • Sufficient cause
    Where sufficient cause is shown, the decree shall have to be set aside. The term ‘sufficient cause’ is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases and each case is to be judged upon its particular circumstances, and where non-appearance is not intentional, a strict view should not be taken to put a party out of court. The term sufficient cause means beyond the control of a party and cannot include cases of extreme negligence.
     
  • Upon such terms as to costs; etc.
    The rule gives a wide discretion to the court in the matter of imposing conditions upon ordering the setting aside of an ex parte decree. A court can make an order of restoration subject to fulfillment of conditions, but it should clearly specify the consequences of non-fulfillment of conditions. The court can also extend the time for fulfillment of the conditions.
     
  • Effect of setting aside
    Upon setting aside of an ex parte decree, the status quo ante is restored and the trial commences de nova from the stage at which the proceedings were taken ex parte. However, where the decree is set aside on the ground that the claim is fraudulent, the suit cannot be restored and tried.
     
  • Dismissal of setting aside application
    In appropriate cases restoration can be made u/s 151. An appeal may lie against the dismissal of the application in default.
     
  • Limitation
    An application under Order 9 rule 13 must in accordance with the bounds of Art. 164 of the Limitation Act 1908 be made within 30 days of the decree.
     
  • Appeal
The following types of orders can be passed under rule 13:
  • An order setting aside the decree which is not appealable nor can it be attacked under S. 105.
  • An order setting aside the decree on certain terms which is by itself not appealable.
  • An order rejecting an application under Order 9 rule 13 is dismissed on merits; it cannot be attacked under S. 105 before the court hearing an appeal against the decree.
  • Pending proceedings to set aside the decree, execution can be stayed.
  • Revision
    An order setting aside an ex parte decree is not a decree. A revision against the order may lie if the conditions of S. 115 are satisfied, as for instance, where the order is contrary to the provisions of Order rule 13, or where the court has disposed of the application upon a consideration of the merits of the decree, or has refused to set aside the decree despite the fact that summons was not duly served or has disposed of the matter on an erroneous view regarding limitation etc. However, no revision will lie if an alternate remedy is available.

  • Res Judicata under Code of Civil Procedure, 1908
    Section 11 of CPC embodies the doctrine of res judicata or the rule of conclusiveness of a judgement, as to the points decided either of fact, or of law, or of fact and law, in every subsequent suit between the same parties. It enacts that once a matter is finally decided by a competent court, no party can be permitted to reopen it in a subsequent litigation. In the absence of such a rule there will be no end to litigation and the parties would be put to constant trouble, harassment and expenses.

Section 11 says thus:

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Ex parte decree as Res Judicata

An ex parte decree, unless it is set aside, is a valid and enforceable decree. However, the real test for res judicata is whether the case was decided on merits. The real test for deciding whether the judgment has been given on merits or not is to see whether it was merely formally passed as a matter of course, or by way of penalty for any conduct of the defendant, or is based upon a consideration of the truth or falsity of the plaintiff's claim, notwithstanding the fact that the evidence was led by him in the absence of the defendant. Thus, a decree may not act as res judicata merely because it was passed ex parte. It therefore acts a res judicata.

Conclusion:
Where a defendant absents himself from court on date of hearing mentioned in the summons duly served on him, the court is empowered under Order 9, Rule 6(1)(a) to proceed ex parte and to pass an ex parte decree against such defendant thereon.

Or the Order 9 rule 13 , said that when an setting aside decree ex-parte against defendant .in which the a decree is passed ex parte against the defendant, he may apply to the court by which the decree was passed for an order to set it aside and if he satisfies that summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing ,the court shall make an order setting aside the decree against him upon such term as to cost payment to court or otherwise as it think fit and shall appoint a day for proceeding with the suit.

End-Notes:
  1. Hansraj vs Dehradun Mussoorie Tramways Co. Ltd AIR 1929 All 353.
  2. Board of Control for Cricket in India v. Netaji Cricket Club AIR 2005 SC 502
  3. Kalpatru Agro Forest Enterprises V. Union of India AIR 2002 SC1402

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