Ex-Parte Proceedings, Procedure to Set Aside Ex-

Parte Orders and Decree

INDEX
1. Introduction
2. General definition and provisions
3. Appearance and non appearance of the parties
4. Setting aside decrees ex parte

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Decree

CHAPTER

INTRODUCTI

ON

When law is being applied or going to be applied, the principles of natural justice
and other principles are very important. The legal maxim Ubi Jus Ibi Remedium
rightly lays down the foundations of legal systems in every human society.1 It means
that whenever any wrong is done to a person, he has a right to approach the court
of law and seek remedy for the wrong which has been caused to him. Literally
means that there is no wrong without a remedy. There is always a legally pattern for
getting these remedies for the wrongs caused.2

The provisions of the Code of Civil Procedure are based on a general principle that,
as far as possible, no proceeding in a court of law should be conducted to the
detriment of any party in his absence. Order 9 of the Code enacts the law with
regard to the appearance of the parties to the suit and the consequences of their
non-appearance. It also provides a remedy for setting aside an order of dismissal of
the suit as also setting aside of an ex parte decree passed against the defendant.

In a civil suit, the plaintiff petitions the court to sanction a right he wishes to assert
against another person, the defendant. These terms, plaintiff and defendant,
accurately describe the roles of both parties involved in a civil suit: one person files
a claim and the other presents a defence.

When a suit is filed in the court then a Suit No. is given to that suit after the
registration of the suit and the summons are sent to the other party who is known as
defendant in that particular case.

1.1 Limitation of the Study

The basic problem was to get more case studies and to do empirical research on the
topic because of the lack of time and resources. Due to these difficulties the sample
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 Ex-Parte Proceedings, Procedure to Set Aside Ex-Parte Orders and Decree

CHAPTER 2

GENERAL DEFINITIONS AND PROVISIONS

In this chapter we will discuss the general definitions and provisions which are necessary to explain
for our project:

1. Suit

Section 26 to 35- B and Orders 1 to 20 of the (First) Schedule deals with the procedure relating to
suits. Orders 1 and 2 provide for the parties to suit and frame of the suit.

The term “suit” has not been defined in the Code. According to the dictionary meaning “suit” is the
generic term of comprehensive signification referring to any proceedings by one person or persons
against another or others in a court of law wherein the plaintiff pursues the remedy which the law
affords him for the redress of any injury or the enforcement of a right, whether at law or in equity.3
Ordinary, a suit is a civil proceeding instituted by the presentation of the plaint.4

In the case of Krishnappa v. Shivappa5 it was decided by the court that for an institution of a suit
the following things are necessary:

a. Opposing parties;
b. Subject matter in dispute;
c. Cause of action;
d. Relief.

Section 26 and Order 4 provides for institution of suit:

2.1.1 Presentation of Plaint

Every suit must be institute by the presentation of the plaint in duplicate or in such other manner as
may be prescribed by the code6 by the plaintiff himself or by his advocate or by his

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recognized agent or by any person duly authorized by him.7 Therefore, generally, a proceeding
which does not commence with a plaint is not a suit.

The expression “plaint” has not been defined in the code but it means “a private memorial tendered
to a court in which the person sets forth his cause of action: the exhibition of action in writing”.8

2.1.2Time and Place of Presentation

A plaint must be presented to the court or such officer as it appoints in that behalf.9 Generally,
presentation of plaint must be on a working day and during the office hours. However, there is no
rule that such presentation must be made either at particular place or particular time. A judge,
therefore, may accept a plaint at his residence or at any other place even after office hour, through
he is not bound to accept it but if not too inconvenient, the judge must accept the plaint if it is the
last day of the limitation.10 Thereafter, the particulars of suit will be entered by the court in a book
kept for the said purpose, called the register of Civil suit.11 After the presentation, the plaint will be
securitized by the Stamp Reporter. If there are defects, the plaintiff or his advocates will remove
them. Therefore the suit will be numbered.12

2. Pleadings

Order 6 deals with pleadings in general. Rule 1 defines pleading, while Rule 2 lays down the
fundamental principles of pleadings. Rule 3 to 13 require the parties to supply necessary particulars.
Rule 14 and 15 provide for signing and verification of pleadings. Rule 16 empowers a court to strike
out unnecessary pleadings. Rules 17 and 18 contain relating to amendment of pleadings.

1. Definition

“Pleading” is defined as plaint or written statement.13 According to Mogha: “Pleadings are

statements in writing drawn up and filed by each party to a case, stating what his contentions

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will be at the trial and giving all such details as his opponent needs to know in order to prepare his
case in answer”

A plaintiffs’ pleading is his plaint, a statement of claim in which the plaintiff sets out his cause of
action with all necessary particulars, and a defendants’ pleading is his written statement, a defense
in which the defendant deals with every material fact alleged by the plaintiff in the plaint and also
states any new facts which are in his favour, adding such legal objections as he wishes to take to the
claim. Where the defendant, in his written statement, pleads a set-off, the plaintiff may file his written
statement thereto. Again in some cases, the defendant after filing his written statement may file an
additional written statement with the leave of the court.

2.2.2 Object

The whole object of the pleadings is to bring parties to definite issues and to diminish expenses and
delay and to prevent surprise at the hearing. A party is entitled to know the case of his opponent so
that he can meet it.

In other words, the sole object of pleadings is to ascertain the real disputes between the parties, to
narrow down the area of conflict and to see where the two sides differ, to precludeone party from
taking the other by surprise and to prevent miscarriage of justice.14 In the leading case of Thorp v.
Holdsworth15, Jessel, M.R. staed:

“The whole object of pleading is to bring parties to an issue, and the meaning of the rules (relating
to pleadings) was to prevent the issue being enlarged, which would prevent either party from
knowing when the cause came on the trial, what the real point to be discussed and decided was.”16

In Gnaesh Trading Co. v. Moji Ram,17 the Supreme Court observed: “Provision relating to
pleading in civil cases are meant to give to each side intimation of the case of the other.”18 In
Virendra v. Vinayak19, the Apex court stated: “the object of the rule is twofold. First is to afford
the other side intimation regarding the particular facts of his case so that they may be

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met by the other side. Second is to enable the court to determine the court that what is the issue
between the parties.”

3. Summon

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 that is sent to the
defendant by the court is technically known as ‘summon’. Though the expression is not defined in
the Code, according to the dictionary meaning:20 “A summon is a document issued from the office of
a court of justice, calling upon the person to whom it is directed to appear before the Judge or
officer of the court for the certain purpose.”

Every summon must be signed by the Judge or such officer appointed by him and shall be sealed
with the seal of the court,21 and must be accompanied by the Plaint.22

4. Ex-Parte

Ex parte is a Latin legal term meaning "from (by or for) one party". An ex parte decision is one
decided by a judge without requiring all of the parties to the controversy to be present.

In Australian, Canadian, U.K., U.S. legal doctrines, ex parte means a legal proceeding brought by
one person in the absence of and without representation or notification of other parties. It is also
used more loosely to refer to improper unilateral contacts with a court, arbitrator or represented
party without notice to the other party or counsel for that party.

5. Decree

The adjudications of a court of law may be divided into two classes: (i) decrees, and (ii) orders.
Section 2(2) of the Code defines the term ‘decree’ in the following words:

‘Decree’ means the formal expression of an adjudication which, so far as regards the courts
expressing it, conclusively determines the right of the party with regards to all or any of the matters in
controversy in the suit and may be either preliminary or final. It shall be deemed to include the
rejection of a plaint and the determination of any question within Section 144, but shall not include–

a) Any adjudication from which an appeal lies as an appeal from an order, or

b) Any order for dismissal for default.

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Explanation– A decree is preliminary when further proceedings have to be taken before the suit
can be completely disposed off. It is final when such adjudication completely disposes off the suit.
It may be partly preliminary and partly final.23

1. Essential Elements of the Decree

In order that a decision of a court may be a ‘decree’, the following elements must be present:

i. There must be adjudication.

ii. Such adjudication must be done in a suit.
iii. It must have determined the rights of the parties with regards to all or any of the
matters in controversy in the suit.
iv. Such determination must be of conclusive nature; and
v. There must be a formal expression of such adjudication.

6. Order

‘Order’ means the formal expression of any decision of a civil court, which is not a decree. Thus,
the adjudication of a court, which is not a decree, is an order. As a general rule, an order of a court
of law is founded on objective considerations and as such the judicial order must contain a
discussion of the question at issue and the reasons which prevail with the court led to the passing of
the order.24

7. Distinction between Decree and Order

1. Decree ends the court case whereas an order does not.

2. The content of a court decree usually follows a standard format that involves the
conditions to be carried out and many others while a court order can have a simple small
content as short as a mere date depending on the type of case.
3. Because of the nature of the document, decree is almost always put into writing while orders
can be verbally proclaimed by the judge.

23 Section 2(2),Civil Procedure Code, 1908.

24 Section 2(14),Civil Procedure Code, 1908.

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CHAPTER 3

APPEARANCE AND NON APPEARANCE OF THE PARTIES

Before dealing with the appearance and non appearance of the parties it is necessary to deal with
the basic meaning and the subject of the appearance which is as follows:

1. Meaning of Appearance

Appearance means coming into court by a party to a suit, either in person or through an attorney,
whether as plaintiff or defendant can be said to be the definition of ‘appearance’. It is also the
formal proceeding by which a defendant submits to the jurisdiction of the court. It is a process
whereby the party voluntarily submits to a court's jurisdiction. Although an appearance can be
made by the plaintiff (the one who has sued) or the defendant (the one being sued), the term most
often refers to the action of the defendant.

2. Subject of Appearance

The subject of appearance is closely related to the subject of personal jurisdiction, which is the
court's authority over an individual party. An appearance is some overt act by which the defendant
comes before the court to either submit to or challenge the court's jurisdiction.25

3. Whether the Appearance by the Party itself is Necessary

Any party can appear either in person or through an attorney or a duly authorized representative;
the party need not be physically present. In most instances, an attorney makes the appearance. An
appearance can also be made by filing a notice of appearance with the clerk of the court and the
plaintiff, which states that the defendant will either submit to the authority of the court or challenge
its jurisdiction. In a lawsuit involving multiple defendants, an appearance by one is not an
appearance for the others. Valid service of process is not required before an appearance can be
made.

Parties can appear in person or by an advocate who should file a vakalatnama giving the name of
the Bar Council in which he is enrolled, his residential address, telephone number if any, and his
address for service of notices. A Senior Advocate is entitled to appear with another advocate who
has filed a vakalatnama.

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The Bar Council or its Disciplinary Committee may at any stage of a proceeding appoint an
advocate to appear as Amicus Curiae. Such advocate may be paid such fee as the Council or the
Committee may decide. Excepting when the Committee has otherwise directed, service on the
advocate shall be deemed to be sufficient service on the parties concerned, even if copies of the
notices are in addition sent to the parties, whether the parties have or have not been served. Unless
otherwise indicated, where more than one Advocate appears for the same party, it is sufficient to
serve the notice on any of them.

A defendant who fails to appear in court pursuant to a service of process might have a default
judgment entered against her or him and be held in contempt of court. A failure to appear does not,
however, result in a waiver of objections to the court's jurisdiction.

If a defendant fails to make an appearance in the time allotted by statute or court rules, he or she
may lose certain rights. But if the circumstances warrant it, a court may extend the time of
appearance.

4. Appearance of Parties

Order 9 Rule 1 requires the parties to the suit to attend the court in person or by their pleaders on
the day fixed in the summons for the defendants to appear.26 Rule 12 provides that where a plaintiff
or a defendant, who has been ordered to appear in person, does not appear in person or show
sufficient cause for non-appearance, the court may dismiss the suit, if he is plaintiff, or proceed ex-
parte if he is the defendant.27

5. Where Neither Party Appear

The following is the procedure regarding appearance and non-appearance of parties according to
the Code of Civil Procedure, 1908, where neither party appears. Where neither the plaintiff nor the
defendant appears when the suit is called out for hearing, the court may dismiss it.28 The dismissal of
the suit under Rule 3, however does not bar a fresh suit in respect of the same cause of action. The
plaintiff may also apply for an order to set aside the dismissal. And if the court is satisfied that there
was sufficient cause for his non-appearance,

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it shall pass an order setting aside the dismissal of the suit and shall fix day for proceeding with the
suit.29

6. Where only Plaintiff Appears

Where the plaintiff appears and the defendant does not appear, the plaintiff has to prove service of
summons on the defendant.30 If the service of summons is proved, the court may proceed ex parte
against the defendant and may pass a decree in favour of the plaintiff, if the plaintiff proves his case.
This provision, however, is confined to first hearing and does not per se apply to subsequent
hearings.31

Where there are two or more plaintiffs and one or more of them appear and others do not appear,
the court may permit the suit to proceed as if all the plaintiffs had appeared, or make such order as
it thinks fit.32

7. Where only Defendant Appears

Rules 7-11 of the Code elaborate on this case. Where the defendant appears and the plaintiff does
not appear, and the defendant does not admit the plaintiff’s claim, wholly or partly, the court shall
pass an order dismissing the suit. But if the defendant admits the plaintiff’s claim as a whole or part
thereof, the court will pass a decree against the defendant upon such admission and dismiss the suit
for the rest of the claim.

Rule 8 will apply to a case where there is only one plaintiff and he does not remain present or there
are two or more plaintiffs and all of them remain absent. Where there are more plaintiffs than one,
and one more of them appear, Rule 10 will apply.

It is, however a serious matter to dismiss the plaintiff’s suit without hearing him and that course
ought not to be adopted unless the court is really satisfied that justice so requires. But the Court has
no power to dismiss the suit where the plaintiff does not appear owing to death. Such an order is a
nullity in as much as this rule applies to a defaulter and not a dead man.33

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Rule 9 precludes the plaintiff thereafter from filing a fresh suit on the same cause of action. He may
however, apply for an order to set aside the order of dismissal. And if the court is satisfied that
there was sufficient cause for his non-appearance the court may set aside the order of dismissal and
fix a day for proceeding with the suit.34

In deciding whether a suit dismissed for default be restored, what has really to be considered is
whether the plaintiff was really trying to appear on the day fixed. If he honestly intended to appear
though in a stupid way, he should not be deprived of hearing.35 If sufficient cause is shown by the
plaintiff for his non-appearance, re-opening is mandatory, but when sufficient cause is not shown, it
is directory.36

Whether the cause is sufficient or not depends upon the facts and circumstances of the case and
liberal and generous construction should be adopted to advance the justice and restoration should
not ordinarily be denied. Where a party against whom an order is made appears on the same day
and prays for recalling of order, normally, the prayer should be granted by the court.

In Chhotalal v. Ambalal Hargovan37, the High Court of Bombay observed that when a party
arrives late and finds that his suit or application is dismissed, he is entitled to have his suit or
application restored on payment of costs.

In a later decision of Currimbhai v. N.H.Moos38, the same High Court held that it would be
difficult to agree with Chhotalal in principle as a proposition of law. “If such a rigid law is laid
down, it might mean this that the defendant could successively prevent his suit from being heard
forever. All that he would have to do would be to appear late on successive dates, and allowed the
suit to be heard ex parte and then to apply at the end of each day to have the suit restored for
hearing. That obviously is a course which no court would allow.”

A civil suit was dismissed for want of prosecution. The suit was to be restored under Rule 35 of
Chapter X of the Original Side Rules and under Order IX Rules 4 and 9 of the Code of Civil
Procedure 1908. One of the legal representatives of the original plaintiff died, pending the
application for restoration of the suit that stood dismissed. Whether an application for restoration of
the suit dismissed under Rule 35 of Chapter X of the Original Side Rules was

34

38

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maintainable and if it was maintainable, whether an application could be entertained only if it was
filed before the order dismissing the suit is drawn up, completed and filed? It was held by the Apex
Court that the plaintiff could apply either under Rule 4 or under Rule 9 of Order IX of the Code for
restoration of the suit, on showing sufficient cause for non-appearance. In case appeal was allowed
and the suit restored, it would result in an order inconsistent with the order dismissing the suit as
against one of the legal representatives of the deceased original plaintiff, which has become final.
Therefore, no relief could be granted. The Impugned order of High Court was upheld. Appeal was
dismissed.39

In the case of New India Assurance Co. Ltd. v. R. Srinivasan, 40 the questions raised were on the
basis of Order 9 Rules 2, 3 and 9 (1) of CPC, 1908 and Consumer Protection Act. The matter
was regarding maintenance of second complaint on dismissal of first being default. Rule of
prohibition as to filing fresh suit on dismissal of first complaint which is contained in Order 9 Rule 9
is not applicable to proceeding under Consumer Protection Act. It was also held that the abuse of
process warrants application of principles of Order 9 Rule 9. Insurance claim cannot be defeated
on ground of technicality of rules of procedure. The Apex Court upheld the order passed by
National Commission.

3.8 Where Summons is not Served

It is a fundamental rule of the law of procedure that a party must have a fair and reasonable
opportunity to represent his case. And for that purpose, he must have a notice of the legal
proceedings initiated against him. The service of summons on the defendant is, therefore, a condition
precedent to a fair trial. If the summons is not served on the defendant or it does not give him
sufficient time to represent his case effectively, no decree can be passed against him.

Rule 2 of Order 9 enacts that the suit may be dismissed where the summons is not served on the
plaintiff’s failure to pay costs for service of summons to defendant or to present copies of the plaint.
No such order, whoever can be passed in spite of such failure by the plaintiff if the defendant
appears in person or by his authorized agent on the day fixed for him to appear.

The plaintiff may file a fresh suit even after the dismissal of the suit under Rule 2 in respect of the
same cause of action or may apply for an order to set aside such dismissal. And if the

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court is satisfied that there was sufficient cause for such failure, the court shall set aside such order
of dismissal and shall fix a day for proceeding with the trial.41

If the plaintiff fails to apply for a fresh summons for seven days after the summons in the defendant
or one of the defendants (where there are two or more defendants) is returned unserved, the court
will dismiss the suit as against the defendant or such defendants. But if within that period, the
plaintiff satisfies the court that (i) he has failed, in spite of his best efforts to discover the residence
of the defendant who has not been served; or (ii) such defendant is avoiding the service of process;
or (iii) there is any other sufficient cause for extension of time, the court may extend the time for
such period as it thinks fit. If the suit of the plaintiff is dismissed by the court within the period of
limitation, he can file a fresh suit also.42

Where it is not proved that the summons is duly served on the defendant, the court will direct a
fresh summons to be issued and served on the defendant.43 Where it is proved that the summons is
duly served on the defendant but there was not 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 a future day and
give notice of such day to the defendant.44 Where the summons is not duly served or id not served
in sufficient time due to the plaintiff’s default, the court shall order the plaintiff to pay the costs
occasioned by such postponement.45

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CHAPTER 4

SETTING ASIDE DECREES EX PARTE

In this chapter we will discuss the meaning of ex-parte decree, remedies for defendant against
whom an ex-parte decree is passed and the procedure to set aside the ex-parte decree.

1. Meaning of Ex-Parte Decree

An ex parte decree is a decree passed in the absence of the defendant (in absenti). Where the
plaintiff appears and the defendant does not appear when the suit is called out for hearing and if the
defendant is duly served, the court may hear the suit ex parte and pass a decree against him. Such a
decree is neither null and void nor inoperative but is merely voidable and unless and until it is
annulled on legal and valid grounds, it is proper, lawful, operative and enforceable like a bi parte
decree and it has all the force of a valid decree.

2. Remedies for Defendant against whom the Ex-Parte Decree has been Passed

The defendant, against whom an ex parte decree has been passed, has the following remedies
available to him:

(1) Apply to the court by which such decree is passed to set it aside: Order 9 Rule 13; or
(2) Prefer an appeal against such decree: Section 96(2) (or to file a revision under Section 115
where no appeal lies);
(3) Apply for review: Order 47 Rule 1; or
(4) File a suit on the ground of fraud.46
The above remedies are concurrent and they can be prosecuted simultaneously or concurrently.47
“Where two proceedings or two remedies are provided by a statute, one of them must not be taken
as operating in derogation of the other.”48

In Ajudhia Prasad v. Balmukund, it was also ruled that “where two proceedings or two remedies
are provided by a statute, one of them should not be taken as operating in derogation of the
other.”49

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In Sunderlal v. Nandramdas50, it was observed that though the Act does not give any power of
dismissal, it is axiomatic that no court or tribunal is supposed to continue a proceeding before it
when the party who has moved it has not appeared nor cared to remain present. The dismissal,
therefore, is an inherent power which every tribunal possesses. This was approved in Dr. P. Nalla
Thampy v. Shankar.51 In New India Assurance v. Srinivasan,52 it was held that every court or
judicial body or authority, which has a duty to decide a lis between two parties, inherently
possesses the power to dismiss a case in default. Where a case is called up for hearing and the
party is not present, the court or the judicial or quasi judicial body is under no obligation to keep
the matter pending before it or to pursue the matter on behalf of the complainant who had instituted
the proceedings. That is not the function of the court or, for that matter of a judicial or quasi judicial
body. In the absence of the complainant, therefore, the court will be will within its jurisdiction to
dismiss the complaint for non prosecution.

The case of Martin Burn Ltd. v. R.N. Banerjee,53 discussed the application filed before the Labour
Appellate Tribunal for the discharge of employee - It further questioned whether the Tribunal had
the jurisdiction to set aside ex parte order and restore application under the Code of Civil
Procedure, 1908 - The Court ruled that the said Tribunal had jurisdiction to set aside ex parte order
and restore the application to its file.

4.3 Setting Aside Decree Ex-Parte Against Defendant

Order 9 Rule 13 states that in any case in which 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 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.

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Provided further, that not 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 the
notice of the date of hearing and sufficient time to appear and answer the plaintiff’s claim.54

Explanation–where there has been an appeal against a decree passed ex parte under this rule, and
the appeal has been disposed of on any ground other than the ground that the appellant has
withdrawn the appeal, no application shall lie under that ex parte decree.55

1. Amendment 1976

(i) A second proviso, which has been inserted following amendments in many High Courts,
provides that an ex parte decree will not be set aside merely on the ground of irregularity
in the service of summons.
(ii) An explanation has been inserted to settle conflicting decisions in the matter by adopting
the view that an ex parte decree can not be set aside under this rule when an appeal against
such decree has been disposed of on any ground other than the ground that the appellant
had withdrawn the appeal.

2. Affidavit Evidence

Application under Rule 13 being an interlocutory application. Order 19 Rule 2 applies and evidence
upon the application may be given in affidavit.56 An advocate on record can file affidavit and
application under Order 9 Rule 13 for setting aside ex parte decree/order, especially when the
steps taken by advocate is not prejudicial to the right of his client. The practice of advocate filing
his own affidavit in support of restoration application is totally wrong and illegal.57

3. Who may Apply?

The defendant against whom ex parte decree has been passed may apply for setting it aside. A
purchaser of mortgaged property hence may make an application under Order 9

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Rule 13 of the Code.58 But a defendant against whom the suit has been dismissed cannot be
said to be “aggrieved” by the decree and cannot apply under this rule.59

The expression “defendant” is wide enough to include a person who is adversely affected by the
decree.

4. Where Application Lies

An application for setting aside ex parte decree may be made to the court which passed the decree.
Where such decree is confirmed, reversed or modified by a Superior Court, an application may be
filed in a superior court.

5. Grounds

This rule requires an application by the defendant to set aside an ex parte decree passed against
him if there are sufficient grounds for it. If the defendant satisfies the court that (i) the summons was
not duly served; or (ii) he was prevented by any sufficient cause from appearing when the suit is
called for hearing, the court will set aside the decree passed against him and appoint a day for
proceeding with the suit.

6. Summons not Duly Served

As provided in Rule 6, the suit may proceed ex parte against the defendant only when it is proved
by the plaintiff to the satisfaction of the court that the defendant did not appear even though the
summons was duly served. In that case, an ex parte decree may be passed against him. Therefore,
if the defendant satisfies the court that the summons was not duly served upon him, the court must
set aside the ex parte decree passed against him.

7. Independent Suit

An independent suit is maintainable to set aside an ex parte decree on the ground of fraud or
collusion even after rejection of application under Rule13.60A suit will lie to set aside a decree on
the ground of fraudulent suppression of summons;61 but if the only fraud alleged is the non-service
of summons and the plaintiff had unsuccessfully applied under Order 9 Rule

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13 no suit is maintainable under the principle of res judicata.62Where the fraud is not proved, it
cannot be set aside merely for non-service of summons. Only a separate suit on that ground would
be barred.63

8. Sufficient Cause

The expression “sufficient cause” has not been defined anywhere in the Code. It is a question to be
determined from the facts and circumstances of each case. The words “sufficient cause” must be
liberally construed to enable the court to exercise powers ex debito justitiae.64 A party should not
be deprived of hearing unless there has been something equivalent to misconduct or gross negligence
on his part. Necessary material should be placed on record to show that the applicant was diligent
and vigilant. Improper advice of the advocate may be a good ground to set aside ex parte decree
but it cannot be accepted as a sufficient cause in all cases.

Whether or not it was a sufficient cause would depend upon facts and circumstances of the case. If
there are delaying tactics and non-cooperation on the part of the party, he cannot seek indulgence
of the court. Where the lower court declines to allow ex parte to be set aside, the Supreme Court
will not interfere with such order.65 The test to be applied is whether the party honestly intended to
remain present at the hearing of the suit and did his best to do so66 .

9. “Good Cause” and “Sufficient Cause”

There is no material difference between the two expressions, “good cause” and “sufficient cause.”67
In the case of Lal Devi and Anr. v. Vaneeta Jain and Ors.68, Y executed an agreement to sell
property to X, Y failed to execute the sale deed despite payment of earnest money, X filed a suit for
specific performance. Matter came to be listed in the Court for several days. The trial court passed
ex parte decree as no one appeared from Y side to cross examine the witness. Appeal was
dismissed by the High Court. Hence, appeal was filed in the Supreme Court. Evidence revealed that
failure to appear before District Judge was on account of their pre-occupation before High Court.
Held, appellant cannot be made to suffer an ex

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parte decree particularly when he was not at fault having duly instructed his counsel to appear
before the Court of District Judge. Order of ex parte decree was set aside by the Court.

Ratio Decidendi:

A person cannot be made to suffer an ex parte decree particularly when he was not at fault having
duly instructed his counsel to appear before Court.

10. Grounds: Whether exhaustive?

The language of the rule is plain, express and unambiguous and the grounds mentioned therein are
exhaustive69.

11. Material Date

Material date for deciding “sufficient cause” for non-appearance by the defendant is the date on
which ex parte decree was passed and not his previous negligence or past defaults.

“The ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a
ground for proceeding ex parte and cannot be stretched to rely upon other circumstance anterior in
time. If sufficient cause is made out for non-appearance of the defendant on the date fixed for
hearing when ex parte proceedings initiated against him, he cannot be penalised for his previous
negligence which had been overlooked and thereby condoned earlier.”70

12. Government Defaulting Party

The words “sufficient cause” cannot be construed differently merely because the defaulting party is a
Government or an instrumentality of the State. Such interpretation would violate doctrine of equality
enshrined in Article 14 of the Constitution71.

But ground realities of life also cannot be ignored. “whereas a private individual takes a decision
one way or the other almost instantaneously, a democratic government or a bureaucratic
department hesitates and halts, discusses and debates, considers and consults, peeps through papers
and files, speaks through notes and drafts, moves horizontally and

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vertically till at last it gravitates towards a conclusion, unmindful and obvious of urgency and
emergency”.

13. Power and Duty of the Court

Where an application for setting aside ex parte decree is made by the defendant, the court should
consider whether the defendant was prevented by “sufficient cause” from appearing before the court
when the suit was called for hearing. If the court finds that there was sufficient cause for non-
appearance, it is bound to be set aside the decree.

In Vijay Kumar Madan and Ors. v. R.N. Gupta Technical Education Society and Ors., 72 a suit
for eviction of tenant and recovery of rent was filed. Due to non- appearance of defendants the
trial court ordered suit to be proceeded ex-parte. Defendant moved application to set aside the ex-
parte order, which was allowed by court placing the defendants on terms and directing to deposit
monthly lease amount in court at the time of filing written statement. The Court cannot exercise its
power under Rule 7 Order 9 of CPC to put the defendant/applicant to such terms as may have
the effect of prejudging the controversy involved in the suit and virtually decreeing the suit though
ex-parte order has been set aside or to put the parties on such terms as may be onerous. Costs
should be so assessed as would reasonably compensate the plaintiff for the loss of time and
inconvenience caused by relegating back the proceedings to an earlier stage. High Court's order to
the extent of setting aside the ex-parte proceedings and directing the expeditious trial of the suit was
ruled to be sustainable as it serves the ends of justice.

14. Test

Whether the defendant honestly and sincerely intended to remain present when the suit was called
on for hearing and did his best to do so? If the reply is in the affirmative, ex parte decree should be
set aside but if it is in the negative, ex parte decree cannot be recalled.73

15. Precedents

Cases are to be decided on the facts and circumstances of each case and not on the basis of
precedents74.

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16. Irregularity in Service of Summons: Effect

Both ‘illegality’ and ‘irregularity’ have to be satisfied for the court to set aside the matter. The court
shall not set aside an ex parte decree merely on the ground of irregularity in service of summons.

17. Burden of Proof

The Burden of proof is on the defendant to prove that there was “sufficient cause” for non-
appearance.

18. Sufficient Cause: Illustrative Cases

The following causes have been held to be sufficient for the absence of the defendant;

(i) Bona fide mistake as to the date of hearing;

(ii) Late arrival of a train;
(iii) Sickness of counsel;
(iv) Fraud of the opposite party;
(v) Mistake of pleader in noting the wrong date
in diary;
(vi)
(vii) Negligence of next friend or guardian in case of minor plaintiff or defendant;

(viii) Death of relative of a party;

(ix) Imprisonment of party;

(x) Sickness of advocates;

No instructions pursis
by lawyer, etc.
4.3.19 No Sufficient Cause: Illustrative Cases
The following causes on the other hand, have been held not to be sufficient for absence of the
defendant for setting aside an ex parte decree;

(i) Dilatory tactics;

(ii) Bald statement of noting wrong date in diary;
(iii) Negligence of party;
(iv) Counsel busy in other court;
(v) Suit of high valuation;
(vi) Absence of defendant after prayer for adjournment is refused;
(vii) Hardship of defendant;

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(viii) Absence to get undue advantage;

(ix) Mere thinking that the case will not be called out;
(x) Not taking part in the proceedings, etc.

20. Limitation
An application for setting aside ex parte decree can be made within thirty days from the date of
decree75.

21. Notice to Opposite Party

In consonance with the principles of natural justice and fair play, the opposite party has to be issued
a notice before setting aside the ex parte decree and an opportunity must be given to him of
hearing.

22. Procedure

Application may be made by the defendant for setting aside the ex parte decree under Rule
13. In case of death of defendant, his legal representatives can also make such application. It
should be signed and verified by the party and not by his advocate.

23. “Upon Such Terms as the Court Thinks Fit”

The court has a very wide discretion in imposing such terms on the defendant as it thinks fit before
setting aside the ex parte decree. It may order the payment of costs, or may order the defendant
even to deposit the decretal amount in the court in an appropriate case. The discretion, however,
must be exercised reasonably and judicially and not arbitrarily or capriciously. If the terms are
onerous, or otherwise unreasonable, a superior court can interfere with them. When an ex parte
decree is set aside on certain conditions and those conditions are not complied with within the time
granted by the court, the application stands dismissed.76

24. Imposition of Conditions

While setting aside ex parte decree, court has wide discretion to impose appropriate conditions on
the defendant.

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The court has a very wide discretion in imposing such terms on the defendant as it thinks fit before
setting aside the ex parte decree. It may order the payment of costs, or may order the defendant
even to deposit the decretal amount in an appropriate case.77 The discretion, however, must be
exercised reasonably and judicially and not arbitrarily or capriciously. If the terms are onerous, or
otherwise unreasonable, a superior court can interfere with them. When an ex parte decree is set
aside on certain conditions and those conditions are not complied with within the time granted by
the court, the application stands dismissed.78

25. Inherent Power to Set Aside Decree

Since the Code makes specific provision for setting aside ex parte decree, no inherent power can
be exercised to set aside such decree. As Rankin, L.J.79 stated, “I entirely dissent from the view
that, if no case is made out under that rule (Rule 13), it is open to the learned Judge to enlarge the
rule by talking about Section 151.”

26. Res Judicata

Where an application for setting aside an ex parte decree is dismissed, no fresh application would
lie if such dismissal is on merits and rule of Res Judicata will apply. But if the dismissal is for the
default of the appearance or the circumstances have been changed, a second application would be
maintainable.

The case questioned the application of principle of Res Judicata. It also questioned if ‘good cause’
and ‘sufficient cause’ was different. It was held that there was no material difference between the
facts to be established for satisfying the two tests of ‘good cause’ under Order IX rule 3 of the
Code of Civil Procedure, 1908, for non appearance and ‘sufficient cause’ under Order IX rule 13.
The scope of the principle of Res Judicata is not confined to what is contained in Section 11 but is
of more general application. Res Judicata could be as much applicable to different stages of the
same suit as to findings on issues in different suits.80

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27. Successive Applications

Successive applications wiil apply only when circumstances change, not otherwise.

28. Execution of Decree: Effect

The fact that an ex parte decree has been executed doesn’t disentitle the defendant from applying
under rule 13 to get it set aside. If the decree is set aside, restituition can be ordered.81

29. Extended Setting Aside Ex Parte Decree

A particular situation, however, arises when an ex parte decree is passed against all the defendants
but summons are not served to all of them; or an application to set it aside is made by some of
them; or where against some of the defendants, a decree is passed on merits after hearing them but
against some of the defendants it is passed ex parte and an application to set it aside is made by
one or more of the defendants against to whom a decree is passed ex parte. As a general rule, the
court will set aside the decree only against such defendant / defendants who had made an
application.

30. Effect of Setting Aside Ex Parte Decree

The effect of setting aside an ex parte decree is that the suit is restored, the court should proceed to
decide the suit as it stood before the decree. The trial should commence de novo and the evidence
that had been recorded in the ex parte proceeding shouldn’t be taken into account.82

31. Hearing of Application Pending Appeal

Mere filing of an appeal in an appellant court against an ex parte decree doesn’t take away the
jurisdiction of the trial court to entertain and decide an application for setting aside an ex parte
decree under Order 9 rule 13. As already stated earlier, two proceedings are different, distinct and
independent and there’s no possibility of conflict of decision.

81
82

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4.3.32 Dismissal of Appeal Against Ex Parte Decree

Where an appeal against an ex parte decree has been decided on any ground other than the
withdrawal of such appeal, an application to set aside such ex parte decree does not lie.

4. Appeal

An appeal lies against an order rejecting an application to set aside ex parte decree. As stated
above, an ex parte decree is a decree under section 96(2) of the Code. A controversial and
somewhat complicated question of law is: whether in such cases the appellate court can only
consider the decree passed by the lower court on merits as to whether there were sufficient to pass
the decree or whether the appellate court can also consider whether there were sufficient reasons for
the defendant for non appearance and the court is not justified in passing an ex parte decree against
the defendant.

There is a conflict of judicial decisions on this point. One view is that the appellate court can only
consider the question whether the decree was wrong in law while the other view is that the appellate
court has the power to consider whether the lower court was justified in proceeding with the
matter ex parte, and if the lower court was not right in doing so, to set aside the ex parte decree. It
is submitted that the latter view is much more acceptable and preferable, particularly when appeal is
continuation of suit and re hearing of the matter.

Appeal does not lie from an order granting an ex parte decree set aside.

5. Revision

An order setting aside an ex parte is a “case decided” within the meaning of Sec.115 of the Code
and is therefore, revisable. A High Court may also exercise supervisory jurisdiction under Art.227
of the Constitution in appropriate cases.

6. Review

Since all the remedies against an ex parte decree are concurrent, an aggrieved party can also file an
application for review if the condition laid down in Order 47 Rule 1 are satisfied.

7. Miscellaneous

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Person claiming joint tenancy cannot maintain application to set aside ex parte decree against
individual tenant.83 Where an application to set aside ex parte decree is dismissed and that is not
challenged in the appeal then the appeal against the decree cannot be put forward. The question
regarding the ex parte nature of decree cannot be agitated.84

The ex parte decree of Small Cause Court can be set aside only if amount under judgment is
deposited in Court or leave has been obtained to furnish security.85 Considering the averments
made in the application to recall particularly, the ground of illness of advocate on record and illness
of the son of the other Advocate whom he had requested to make a mention before the Court at
the time calling of case, absence of lawyers was for reason beyond its control.86 It cannot be passed
by the appellate court as a matter of course. Application under Order IX Rule 13, CPC cannot be
remanded.87 It is the duty of the litigant to contact the Advocate. Pleas the Advocate did not inform
him about ex parte decree is not ground to set aside the ex parte decree.88 Delay on the part of the
Advocate in preparing and tendering application is a sufficient cause to set aside ex parte decree.
No decree shall be set aside without notice to the opposite party.

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CHAPTER 5

CONCLUSIO

In every civilized society there are two sets of laws, mainly: (i) substantive laws and (ii)
procedural laws. Substantive laws determine the rights and obligations of citizens. Subject
Procedural laws prescribe the procedure for the enforcement of such rights and obligations. Of
the two, substantive laws are no doubt the more important. But the efficacy of substantive laws,
to a large extent, depends upon the quality of the procedural laws. Unless the procedure is
simple, expeditious and inexpensive, the substantive laws, however good, are bound to fail in
their purpose and object.
The Civil Procedure Code is an indispensable instrument of the country today to tackle the
problems in procedure regarding civil judicial administration. The Code has served the country
in more ways than anticipated by its makers. There have been several amendments and there is
scope for new amendments in the Code. The concept of appearance and non-appearance of
parties have been given space in the Code respecting the principles of natural justice, fair play
etc. Each party gets his rightful chance to defend himself and present his case before the court.
The doctrine of fair hearing is also implied in this topic. Audi alteram partem which literally
means “hear the other side” has everything to do with this portion of the Civil Procedure Code,
1908.
The defendant is served the summons to appear before the court and submit to the jurisdiction
of the court. The summons is a way of informing the defendant about the
complaint by the plaintiff and the date of hearing of the suit. The defendant is bound by the
summons to appear in court either personally or through his legal representatives on
the date prescribed in the summons. If the defendant fails to appear he should prove that there
was “sufficient cause” for his non-appearance. There is no standard rule laid down
for judging what is ‘sufficient’ and what is not. It depends on the facts and
circumstances
of each case. Order IX elaborates on the procedure to be adopted by the court and the course
of law to be followed in different situations which have been dealt with in detail in this project.
The concept of ex parte decree belongs particularly to Order IX of Civil Procedure Code,
1908 only and its Rule 13 specifically provides the remedy to defendant against whom the ex
parte decree is passed by setting aside the ex parte decree on certain grounds.

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BIBLIOGRAPHY

1. Acharya, N.K., Guide to C.P.C., Asia Law House, Hyderabad, 2004.

2. Banerjee, Commentary On The Code Of Civil Procedure, 1908, VOL. I, Dwivedi &
Company, Allahabad, 2009.
3. Jain, M.P., The Code Of Civil Procedure, 2nd Edition, Wadhwa Nagpur, 2008.
4. Myneni, S.R., Code Of Civil Procedure &Limitation Act, 5th Edition, Asia Law House,
Hyderabad, 2007.
5. Saha, A.N., The Code Of Civil Procedure, 6th Edition, VOL. 1, Premier Publishing
Company, 2009.
6. Singh, Avtar, Code of Civil Procedure, Act No. 5 of 1908, 2nd Edition, Central Law
Publications, Allahabad, 2009.
7. Sarkar, Code Of Civil Procedure, 11th Edition, Lexis Nexis Butterworths Wadhwa,
Nagpur, 2009.
8. Takwani, C.K., Civil Procedure, 6th Edition, Eastern Book Company, Lucknow, 2009.

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