MODULE VII: SERVICE OF SUMMONS (S.

27-29 R/W order V) & APPEARANCE

AND NON-APPEARANCE OF PARTIES (ORDER IX)

 Modes and procedure of issuing summons (order V)

 Substituted service (order V rule 20)
 E-Summons and digital service procedures
 Dismissal of suit
 Ex parte proceedings
SUMMONS: SECTIONS 27-29; ORDER 5 (a) Summons: Meaning When the plaintiff files a
suit, the defendant has to be informed that the suit has been filed against him, and that he is
required to appear in the court to defend it. The intimation which is sent to the defendant by the
court is technically known as “summons”. Though the said expression (summons) has not been
defined in the Code, according to the dictionary meaning,'*® “A summons is a document issued
from the office of a court of justice, calling upon the person to whom it is directed to attend
before a judge or officer of the court for a certain purpose.”

(b) Object of issuing summons When a suit is filed by the plaintiff against the defendant and a
relief is claimed, the defendant must be given an opportunity as to what he has to say against the
prayer made by the plaintiff. This is in consonance with the principle of natural justice as no one
can be condemned unheard (audi alteram partem).'>’ If the defendant is not served with the
summons, a decree passed against him will not bind him.

(c) Essentials of summons: Rules 1-2 Every summons shall be signed by the judge or such
officer appointed by him and shall be sealed with the seal of the court,'** and must be
accompanied by a plaint.'*’ It is the duty of the court to send a copy of the plaint and other
documents appended thereto so that the defendant may be able to file a writ- ten statement.'
(Nahar Enterprises vy. Hyderabad Allwyn Ltd., (2007) 9 SCC 466.)

(d) Form of summons Every summons should be in the Forms prescribed in Appendix B to the
(First) Schedule of the Code. (e) Summons to defendant: Section 27; Order 5 Rule 1 Order 5
deals with summons to a defendant while Order 16 deals with sum- mons to witnesses.'*' When a
suit has been duly filed by presentation of a plaint, the court must issue summons to the
defendant calling upon him to appear and answer the claim of the plaintiff by filing a written
statement within thirty days from the date of service of summons.'©2 No summons, how- ever,
will be issued by the court if, at the time of presentation of a plaint, the defendant is present and
admits the plaintiff’s claim.'!™ (f) Appearance in person: Rule 3 A defendant to whom a
summons has been issued, may appear (1) in person; or (2) by a pleader duly instructed and able
to answer all material questions relating to the suit; or (3) by a pleader accompanied by some
person able to answer all such questions.'°* The court, however, may order the defendant or
plaintiff to appear in person.'®
(g) Exemption from appearance in person: Sections 132-133; Rule 4 No party shall be ordered to
appear in person: (a) unless he resides (a) within the local limits of the court’s ordinary original
jurisdiction; or (b) outside such limits, but at a place less than (i) 50 miles; or (ii) 200 miles
(where public conveyance is available) from the courthouse;! or (b) who is a woman not
appearing in public;'®’ or (c) who is entitled to exemption under the Code.’

(h) Contents of summons: Rules 5-8 The summons must contain a direction whether the date
fixed is for settlement of issues only or for final disposal of the suit.'® In the latter case, the
defendant should be directed to produce his witnesses.'”? The court must give sufficient time to
the defendant to enable him to appear and answer the claim of the plaintiff on the day fixed.'”!
The summons should also contain an order to the defendant to produce all documents or copies
thereof in his possession | ethane or power upon which he intends to rely on in support of his
case.

(i) Mode of service of summons: Rules 9-30 The service of summons is of primary importance
as it is a fundamental rule of the law of procedure that a party must have a fair and reasonable
notice of the legal proceedings initiated against him so that he can defend himself. The problem
of service of summons is one of the major causes of delay in the progress of the suit. It is
common knowledge that defendants try to avoid service of summons. The Law Commission
considered the problem and it was felt that certain amendments were necessary in that direction
and a defendant can be served by a plaintiff or through modern means of communication.
Accordingly, amendments were made in the Code in 1976, 1999 and 2002.!” The Code
prescribes five principal modes of serving a summons to a defendant: (1) Personal or direct
service: Rules 10-16, 18 Rules 10 to 16 and 18 deal with personal or direct service of summons
upon the defendant. This is an ordinary mode of service of summons. Here the following
principles must be remembered:

(1) Wherever it is practicable, the summons must be served to the defendant in person or to his
authorised agent.!“ (1) Where the defendant is absent from his residence at the time of service of
summons and there is no likelihood of him being found at his res- idence within a reasonable
time and he has no authorised agent, the summons may be served on any adult male or female
member of the defendant’s family residing with him.!” A servant, however, cannot be said to be
a family member.!”6 (721) In a suit relating to any business or work against a person, not
residing within the territorial jurisdiction of the court issuing the summons, it may be served to
the manager or agent carrying on such business or work, !7” (1v) In a suit for immovable
property, if the service of summons cannot be made on the defendant personally and the
defendant has no authorised agent, the service may be made on any agent of the defendant in
charge of the property.!”8

(v) Where there are two or more defendants, service of summons should be made on each
defendant.!”? In all the above cases, service of summons should be made by delivering or
tendering a copy thereof.'*° Where the serving officer delivers or tenders a copy of summons to
the defendant personally or to his agent or other person on his behalf, the person to whom the
copy is delivered or tendered must make an acknowledgment of service of summons.'*! The
serving officer, thereafter, must make an endorsement on the original summons stating the time
and manner of service thereof and the name and address of the person, if any, identifying the
person served and witnessing the delivery or tender of summons. !**

(2) Service by court: Rule 9 Summons to defendant residing within the jurisdiction of the court
shall be served through court officer or approved courier service.'** Summons can also be served
by registered post, speed post, acknowledgment due (RPAD), courier service, fax, message, e-
mail service or by any other permissible means of transmission.'** Where the defendant is
residing outside the jurisdiction of the court, the summons shall be served through an officer of
the court within whose jurisdiction the defendant resides.'** The court shall treat refusal of
acceptance as a valid service.'** Where summons is properly addressed, prepaid and duly sent by
registered post acknowledgment due (RPAD) there will be a presumption of valid service of
summons even in the absence of an acknowledgement slip.'*” Though there can be no objection
in giving an opportunity to the plaintiff to serve summons on the defendant, there should be
sufficient safeguards to avoid false report of service of summons. High Courts should make
appropriate rules or issue practice directions to ensure that the provisions are properly
implemented and there is no abuse of process of law.'**

(3) Service by plaintiff: Rule 9-A The court may also permit service of summons by the plaintiff
in addition to service of summons by the court.'®”

In the leading decision of Salem Advocate Bar Assn. (2) v. Union of India'*®, the Supreme
Court approved the practice of service of summons on the defendant by the plaintiff observing
that there is “no valid objection in giving opportunity to the plaintiff to serve the summons on the
defendant”, or get it served through courier.

(4) Substituted service: Rules 17, 19-20 “Substituted service” means the service of summons by
a mode which is substituted for the ordinary mode of service of summons. There are two modes
of substituted service. They are: “(a) (i) where the defendant or his agent refuses to sign the
acknowledgment; or (ii) where the serving officer, after due and reasonable diligence, cannot
find the defendant who is absent from his residence at the time of service of summons and there
is no likelihood of him being found at his residence within a reasonable time and there is no
authorised agent nor any other person on whom service can be made, the service of summons
can be made by affixing a copy on the outer door or some other conspicuous part of the house in
which the defendant ordinarily resides or carries on business or personally works for gain. The
serving officer shall then return the original to the court from which it was issued with a report
endorsed thereon stating the fact about affixing the copy, the circumstances under which he did
so, and the name and address of the person, if any, by whom the house was identified and in
whose presence the copy was affixed.'*! If the court is satisfied, either on the affidavit of the
serving officer or on his examination on oath, that the summons has been duly served, it may
either declare that the summons has been duly served or may make further enquiry in the matter
as it thinks fit.”!” Thus, in the second mode of service of summons as provided by Rule 17, the
service is effected without an order of the court by affixing a copy of the sum- mons on the
house of the defendant and therefore the declaration by the court about the due service of the
summons is essential.!° If the provisions of Rule 19 have not been complied with, the service of
summons cannot be said to be in accordance with law.!*4

“(b) Where the court is satisfied that there is reason to believe that the defendant avoids service
or for any other reason the summons cannot be served in the ordi- nary way, the service may be
effected in the following manner: (‘) by affixing a copy of the summons in some conspicuous
place in the courthouse; and also upon some conspicuous part of the house in which the
defendant is known to have last resided, carried on business or personally worked for gain; or (1)
in such manner as the court thinks fit.”!5

It, however, must be remembered that this is not a regular mode of service and hence, it should
not normally be allowed and can be effected only as a last resort.'”° Before more than a century
ago, in Cohen v. Nursing Dass'’’, it was stated, “Tt is true that you may go to a man’s house and
not find him, but that is not attempting to find him. You should go to his house, make enquiries
and, if necessary, follow him. You should make enquiries to find out when he is likely to-be at
home, and go to the house at a time when he can be found. Before service like this can be
effected it must be shown that proper efforts have been made to find out when and where the
defendant is likely to be found—not as seems to be done in this country, to go to his house in a
perfunctory way, and because he has not been found there, to affix a copy of the summons on the
outer door of his house.” Where the court orders service by an advertisement in a newspaper, the
newspaper should be a daily newspaper circulating in the locality in which the defendant is last
known to have actually or voluntarily resided, carried on business or personally worked for
gain.'?* Such service is an effective service, even if the defendant is not the subscriber of the
newspaper or is not reading it.17? Under Rule 20, the service of summons is effected by the
order of the court only after the court is satisfied that the defendant avoids service of summons or
it cannot be served in the ordinary way.”°° Such satisfaction must be recorded by the court in
writing.*°’ Substituted service is as effective as personal service.*”* The court must fix a time
for the appearance of the defendant and give him a reasonable time to appear before the court.”

(5) Service by post When an acknowledgment purporting to be signed by the defendant or his
agent is received by the court, or the defendant or his agent refused to take delivery of summons
when tendered to him, the court issuing the summons shall declare that the summons had been
duly served on the defendant.”"* The same principle applies in a case where the summons was
properly addressed, prepaid and duly sent by registered post, acknowledgment due; and the
acknowledgment is lost or not received by the court within thirty days from the date of issue of
the summons. Where the summons sent by registered post is returned with an endorsement
“refused”, the burden is on the defendant to prove that the endorsement is false.? (j) Refusal of
summons Where the defendant refuses to accept summons. He is deemed to have been served.
Similarly, where an acknowledgment or receipt purported to have been signed by the defendant
(or his agent) is received by the court that the defendant (or his agent) has refused to take the
delivery of summons, the court will proceed treating the defendant as served.?"° (k) Objection as
to service of summons An objection as to service of summons should be raised at the earliest
possible opportunity. If it is not taken at that stage, it is deemed to have been waived.?” It has
been held that there is distinction between non-service of notice and procedural irregularity in
service of notice. In the case of former category of cases, all consequential actions would be
rendered bad in law whereas in the case of latter category of cases, consequential actions would
be sustained unless he is able to show substantial prejudice due to procedural lapse in making
service to him. It depends upon the facts of each case whether procedural lapse complained of
has caused prejudice to the applicant.2°

(1) Service of summons in special cases: Rules 21-30 (1) Where the defendant resides within the
jurisdiction of another court or in another State, the summons may be sent to the court where he
resides. Such court will serve summons on the defendant.2°” (1) Service of foreign summons
may be effected by sending them to the courts in the territories in which the provisions of this
Code apply and served as if they were summonses issued by such courts.2!° (117) Where the
summons is to be served within the Presidency Towns of Bombay, Madras and Calcutta, it may
be sent to the Court of Small Causes within whose jurisdiction it is to be served.2!!

(iv) Where the defendant resides out of India and has no authorised agent in India to accept
service, the summons should be addressed to the defendant at the place where he is residing and
sent to him by post, or courier service, or fax message, or Electronic Mail Service, or by any
other appropriate means, if there is postal communication between such place and the place
where the court Is situate.*!” (v) Where the defendant resides in a foreign country, the service of
summons may be effected through the political agent there or a court established there with
authority to serve summons.?"? (vi) Where the defendant is a public officer (not belonging to the
Indian Military, Naval or Air Forces), or is a servant of the railway company or local authority,
the summons may be served through the head of the department in which the defendant is
employed.*'* (vii) Where the defendant is a soldier, sailor or airman, the court shall send the
summons for service to his commanding officer.*'° (viii) Where the defendant is in prison, the
service of summons is to be made on the officer in charge of the prison.*!° (ix) Where the
defendant is a corporation, the summons may be served on the secretary, or on any director or
other principal officer of the corporation; or by leaving it or sending it by post addressed to the
corporation at the registered office or if there is no registered office, then at the place where the
corporation carries on business.*!” (x) Where the defendants are partners in any firm, the
summons should be served upon any one or more of the partners; or upon any person having the
control or management of the partnership business at its principal place of business in India. But
if the plaintiff knows that the partnership firm has been dissolved before the institution of the
suit, the summons shall be served upon every person sought to be held liable in India.”"
(xi) A court may substitute for a summons, a letter of request which may contain all particulars
required to be stated in a summons. This step may be taken by the court keeping in view the
office held or position occupied by the defendant.*'”

Electronic Service of Summons under CPC: Evolving Practices and Legal Validity Post
COVID-19

The COVID-19 pandemic accelerated a paradigm shift in judicial procedures across India,
compelling courts to embrace electronic service of summons and legal notices. Under Order V of
the Code of Civil Procedure (CPC), courts are empowered to direct alternative modes of service
—such as e-mail and WhatsApp—particularly when conventional methods are impractical,
inefficient, or obstructed. This article examines the e-service framework under Order V CPC, key
Supreme Court and High Court decisions, SC guidelines during and post-COVID, and
Delhi-specific developments including the new Delhi BNSS (Service of Summons) Rules, 2025,
while integrating semantic SEO elements like “electronic summons in Delhi” and “CPC Order V
e-service.”

Legal Framework under Order V CPC: Traditional vs. Electronic Modes

Order V of the Code of Civil Procedure, 1908, read with relevant High Court Rules, governs the
issuance and service of summons in civil cases. Traditionally, service was effected through
personal delivery by court officers, registered post, or substituted service via publication.
However, the amendments post-2002 and judicial directions post-2020 have recognized
electronic service of summons as a valid alternative.

Rule 9 and Rule 9A of Order V CPC

 Rule 9 allows service by registered post, speed post, courier service, or other means as
the court deems fit.

 Rule 9A empowers the plaintiff to serve summons, subject to court supervision.

In the evolving context, courts have interpreted “other means” to include e-mail service of
summons and WhatsApp legal notices, particularly in commercial disputes under the
Commercial Courts Act, 2015, and now increasingly in regular civil litigation.

Courts in Delhi have adopted a progressive view by routinely allowing WhatsApp service of
legal notices and e-mails with read receipts as valid, especially where defendants evade
traditional service or during periods of restricted physical movement.

Judicial Recognition of E-Summons: Supreme Court and High Courts’ Stand

The Supreme Court of India, in the landmark case of In Re: Cognizance for Extension of
Limitation (2020 SCC OnLine SC 343), paved the way for electronic service of summons in
response to pandemic-related disruptions. The Court held that service of summons and notices
may be effected via e-mail, fax, and instant messaging platforms like WhatsApp, provided there
is reliable delivery confirmation.

In this ruling and its subsequent orders, the Supreme Court recognized that:

 Read receipts (✓✓ blue ticks) on WhatsApp can be treated as prima facie proof of
service.

 Courts must allow flexibility in modes of service to ensure access to justice.

Further, in Kross Television India Pvt. Ltd. v. Vikhyat Chitra Production, the Bombay High
Court upheld WhatsApp as a valid mode of service when accompanied by delivery/read receipts,
emphasizing “proof of dispatch and proof of receipt.”

The Delhi High Court in Bright Enterprises Pvt. Ltd. v. MJ Bizcraft LLP (2020) also observed
that where defendants habitually avoid physical summons, electronic service becomes not just
convenient but necessary.

Thus, Delhi courts are now proactively directing hybrid service—combining physical and
electronic modes—to avoid undue delays.

Procedural Guidelines: E-Service Protocols and Legal Safeguards

While the judiciary has accepted electronic service of summons, courts emphasize procedural
safeguards to ensure due process and legal validity. The following protocols are now typically
followed in courts, especially in jurisdictions like Delhi:

1. Proof of Delivery

The party effecting e-service must provide:

 Affidavit of service, stating date, time, and mode of service;

 Screenshots or printouts showing delivery/read receipts;

 Server-generated e-mail delivery confirmations.

2. Multiple Modes of Service

To avoid disputes over the validity of service, courts often direct simultaneous service via:

 E-mail (to registered or known addresses);

 WhatsApp (with mobile number affidavit);

 Physical registered post (where feasible).

3. Court-Approved Channels
Where e-filing portals are in use (like in Delhi District Courts and Delhi High Court), notices and
summons are sent through official, authenticated court platforms.

4. Restrictions

Electronic service may not be permitted:

 Where the identity of the recipient is uncertain;

 In cases involving illiterate or tech-unfamiliar defendants;

 In criminal matters, unless allowed by special enactment.

These safeguards balance expeditious disposal of cases with the principles of natural justice.

E-Service in Delhi: Practice Directions and Judicial Trends

In Delhi, the push toward digitisation of judicial processes—further hastened by the pandemic—
has led to a formalised and court-monitored system for electronic service of summons and
notices.

1. Delhi High Court Practice Directions

The Delhi High Court has issued several practice directions post-2020 to standardise service via
email and messaging platforms, especially under:

 Commercial Courts Act, 2015, where service of summons is time-bound (Order V CPC
read with Rule 3 of the Commercial Courts (Procedure) Rules, 2018);

 Order XXXIX Rule 3 CPC, where interim injunctions require immediate service on the
opposite party.

Courts permit plaintiffs to serve:

 PDFs of the plaint, documents, and interim orders by e-mail and WhatsApp;

 With proof of delivery appended with the next filing.

2. Use of E-filing Platforms

Both Delhi District Courts and the Delhi High Court now mandate that the filing parties upload
e-mail addresses and mobile numbers of the parties at the time of institution. These databases are
used to effect e-summons via automated systems, ensuring:

 Speedy issuance;

 Reduction in adjournments due to non-service.

3. Latest Trends and Innovations

 Courts now sometimes issue summons directly to counsel via e-mail with instructions to
ensure client delivery.

 Use of QR code-enabled summons is being piloted for authentication.

Conclusion

The evolution of electronic service of summons under Order V CPC represents a significant
stride towards a technology-enabled and efficient justice delivery system in India. The
COVID-19 pandemic merely accelerated a transformation that was long overdue—minimising
delays, ensuring timely communication of legal proceedings, and reducing the burden on court
staff.

While courts—especially in Delhi—have shown commendable adaptability in permitting e-mail

and WhatsApp summons, the long-term success of this model hinges on:

 Legislative backing with clear procedural rules;

 Widespread judicial training and litigant awareness;

 Digital safeguards against misuse or denial of service.

With ongoing digitisation efforts and judicial endorsement, e-summons is poised to become the
default mode of service, especially in commercial, civil, and urgent litigation.

DISMISSAL OF SUIT

In civil litigation, the Code of Civil Procedure (CPC) establishes clear guidelines regarding the
presence and absence of parties in a lawsuit. These rules are crucial for maintaining fairness and
efficiency in legal proceedings.

Appearance of Parties

Under Rule 1 of Order IX of the CPC, parties to a suit are required to appear before the court
either personally or through their legal representatives on the date specified in the summons.
This appearance is crucial as it allows the court to proceed with the case, ensure due process, and
address the issues at hand.

Consequences of Non-Appearance:

• Plaintiff’s Non-Appearance: If the plaintiff fails to appear without providing a satisfactory

reason, the court is empowered to dismiss the suit under Rule 12 of Order IX. This dismissal
occurs because the court presumes that the plaintiff is no longer interested in pursuing the case.
• Defendant’s Non-Appearance: If the defendant does not appear despite being ordered to do so,
the court may issue an ex-parte order or decree. This decision is based on the principle that the
defendant’s absence implies a failure to contest the claims made by the plaintiff.

Non-Appearance of Both Parties

When neither the plaintiff nor the defendant appears on the scheduled hearing date, the court has
the authority to dismiss the suit under Rule 3 of Order IX. However, this dismissal does not bar
the filing of a new suit based on the same cause of action as stated in Rule 4.

If the plaintiff can show valid reasons for their non-appearance, they may apply to have the
dismissal set aside. If the court finds the explanation satisfactory, it can overturn the dismissal
and schedule a new hearing date.

Special Considerations for Plaintiff’s Appearance

If only the plaintiff appears and the defendant does not, the court can proceed to issue an ex-parte
order against the defendant. For this order to be valid, the plaintiff must prove that the summons
was properly served. This provision is applicable primarily to the initial hearing. Subsequent
hearings require the presence of both parties, as established in cases such as Sangram Singh v.
Election Tribunal and Maya Devi v. Lalta Prasad.

Defendant’s Appearance

When the defendant appears but the plaintiff does not, the situation can unfold in two ways:

1. Denial of Claim: If the defendant does not admit the claim, the court will typically dismiss the
suit.

2. Admission of Claim: If the defendant admits to the claim, the court can issue a decree based
on the admission for the admitted portion. The remainder of the suit will be dismissed.

Dismissal of the suit without a hearing should be approached with caution, as highlighted in
Shamdasani v. Central Bank of India, to ensure that justice is not compromised.

Non-Appearance Due to Death

If a plaintiff fails to appear due to death, the court cannot dismiss the suit. Such a dismissal
would be considered void, as affirmed in P.M.M. Pillayathiri Amma v. K. Lakshi Amma. In
these situations, the legal heirs or representatives may need to take appropriate steps to continue
the proceedings.

Setting Aside Dismissal Orders

A plaintiff whose suit has been dismissed due to non-appearance can apply to have the dismissal
order set aside. The court will review whether the non-appearance was due to a sufficient cause.
If so, it will reinstate the suit and reschedule the hearing. Factors such as genuine attempts to
appear and valid reasons are considered in determining whether the cause is sufficient, as
discussed in P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar.

Service of Summons

Rules 2 to 5 of Order IX address situations where the summons has not been properly served.
Adequate notice is a fundamental procedural requirement. Failure to serve summons correctly
can prevent a decree from being issued, as seen in Begum Para v. Luiza Matilda Fernandes.

If the plaintiff fails to pay the costs for serving the summons, the suit may be dismissed unless
the defendant appears at the hearing. Even with dismissal due to failure in summons service, a
fresh suit can be filed, and the court may set aside the dismissal if valid reasons for the failure are
provided.

Order IX, Rule 2 of the Code states that, where the plaintiff fails to pay the court-fee or postal
charges chargeable for the service of summons to the defendant or fails to present the copies of
the plaint as required by Order VII, Rule 9 of the Code, then, the suit of the plaintiff can be
dismissed, regards being had to the discretion of the court. An appeal cannot be preferred against
an order passed by the court dismissing the suit under Order IX, Rule 2 of the Code; only a
revision under Section 115 of the Code can be preferred against such an order dismissing the
suit.[1]

Order IX, Rule 3 of the Code further states that, where on the date fixed for the hearing of the
suit, neither of the parties to the suit appears, then, the suit can be dismissed. Dismissal under
this rule does not amount to a decree and no appeal as such lies from it; the plaintiff can either
bring a fresh suit or can apply under Order IX, Rule 4 of the Code to set aside the dismissal.

Order IX, Rule 4 of the Code stipulates that, when a suit is dismissed under Order IX, Rule 2,
or, Order IX, Rule 3, of the Code, then, a fresh suit on the same cause of action is not barred if
within limitation. An application for restoration of suit under Order IX, Rule 4 is to be preferred
within 30 days of dismissal of the suit.[2] Once the application for setting aside the dismissal is
allowed, the defendant is entitled to get notice of restoration and the date of further hearing[3];
the requirement of notice to the defendant is mandatory (and not directory) and non-service of
notice is sufficient enough to get the decree set aside.[4]

Order IX, Rule 5 of the Code states that, a suit shall be dismissed where the plaintiff after the
return of summons being not served, fails to apply for fresh summons within a period of 7
(seven) days reckoning from the date on which the earlier summons were returned as un-served.
However, the court shall not dismiss the suit, if the plaintiff satisfies the court that: (a) despite
best endeavours, the plaintiff failed to discover the residence of the defendant; (b) defendant is
avoiding the service of process; and/or, (c) there is sufficient cause favouring the plaintiff to pray
for the extension of the time for the service of summons upon the defendant. Where a suit is
dismissed under Order IX, Rule 5 of the Code, the plaintiff is not prevented from bringing a
fresh suit.[5]

Ex-Parte Decrees

An ex-parte decree is issued when one party, typically the defendant, fails to appear despite
proper summons being served. This decree is valid and enforceable but can be contested on legal
grounds, such as lack of proper service or other valid reasons. Remedies available to challenge
an ex-parte decree include applying to set it aside, appealing, seeking a review, or filing a suit on
grounds of fraud.

Decree

 According to Section 2(2) of the Civil Procedure Code, 1973 (CPC), Decree means
the formal expression of an adjudication which, conclusively determines the rights of
the parties with regard to all or any of the matters in controversy in the suit.

 Decree may be either:

o Preliminary Decree: When further proceedings have to be taken before the

suit can be completely disposed of.

o Final Decree: When the adjudication completely disposes of the suit.

o Deemed Decrees: By legal fiction, certain adjudications are deemed to be

decrees under this code such as-

 Decree of rejection of a plaint

 Decree of determination of any question within Section 144 (Application

for Restitution)

 Following adjudications are not deemed to be decrees under this code.

o Any adjudication from which an appeal lies as an appeal from an order

o Any order of dismissal for default

Ex-Parte Decree

 It is an exception to the general rule that an adjudication shall be pronounced in the

presence of both the parties.

 It is a decree in absentia.
  It is pronounced if on the date of hearing the plaintiff is present, and the defendant is
absent.

When is an Ex-Parte Decree Passed

 CPC provides for passing of an Ex Parte Decree wherever the presence of the defendant
is required under the code and the defendant fails to appear.

 Following are the instances where the court can pass an Ex Parte Decree:

1. Order 8, Rule 10

 Rule 1 of Order 8 of CPC states that the defendant shall submit its written statement
within 30 days from the date of service of summons.

 This time period of 30 days can be extended by the court to not more than 90
days from the date of service of summons.

 If the defendant fails to submit the written statement in such period, then the Court,
under Rule 10 of Order 8, has the discretion to pass an Ex-Parte Decree.

2. Order 9, Rule 6

 This rule provides that the Court may proceed to try the case Ex-Parte, and pass an Ex
Parte Decree in the same if:

o On the day fixed in the summons for the defendant to appear, and answer, the
plaintiff appears, and the defendant does not appear.

o It is proved that the summons was duly served in sufficient time to enable the
defendant to appear and answer.

Remedies Against An Ex Parte Decree

 Once an Ex Parte Decree has been passed against a judgement debtor, he/she can
undertake any of the several remedies available to him under the code.

 CPC provides the following remedies against an Ex-Parte Decree:

1. Setting Aside

 Order 9, Rule 13 of the CPC, provides for the setting aside of the Ex-Parte decree passed
against the defendant.

 Defendant against whom an Ex-Parte decree has been passed 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:
 o The summons was not duly served, or

o He was prevented by any sufficient cause from appearing when the suit was
called on for hearing.

o If either of the above two conditions are satisfied, then the Court shall make an
order setting aside the decree as against such defendant.

2. Conditional Setting Aside of Decree

 Court may, in its discretion, while setting aside a decree impose such terms as to
costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit.

 Rule 14 of the Order 9 states that no decree is to be set aside without furnishing
notice to the opposite party.

3. Appeal

 According to Section 96(2) of the Code, an appeal may lie from an original decree
passed ex parte.

4. Review

 A review under Section 114 of the code can be made against a decree passed Ex-
Parte.

 Section 114 states that 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.

Case Law

In the case of Bhanu Kumar Jain v. Archana Kumar & Anr (2004), the Apex Court set aside
an Ex-Parte decree on the ground that the defendant had sufficient and reasonable grounds
for not being able to attend the hearing of the suit on the day fixed in the summons.