'Ex Parte Decree' Provisions within the Code of Civil Procedure

An ‘Ex parte decree’ is a decree passed against a defendant in absentia. Despite service of summons, where on the date of hearing only plaintiff does and a defendant does not appear the Court may hear the suit ex parte and pass a decree against the defendant. The legal validity, enforceability and operation of such decree is similar to any bi-parte decree.

The article critically analyses various provisions in the Code of Civil Procedure, 1908 pertaining to ex parte decree. Part I of the article enumerates the nature of an ex parte decree and cause of an ex parte decree. Part II titled Relief Available Against an ex parte deals with various remedies available to the person against whom an ex parte decree is passed and the abuse of such remedies. Part III titled Sufficient Cause for Non-appearance analyses various instances and circumstances where non-appearance of the party is excusable. Part IV titled Ex Parte Decree obtained by Fraud deals extensively with one of the remedy available against an ex parte decree.

Part I. Hearing the Suit Ex- Parte

I. (A) Decree When Ex Parte:

Ascertaining the nature of the decree whether it is an ex parte decree is a mixed question of law and fact. Records of the Court and circumstances under which decree was passed show the absence of the particular defendant at the time of hearing, the decree must be taken as ex parte in spite of the fact that decree mentions his presence. [1] A decree based on a compromise cannot be treated as an ex parte decree and consequently Rule 13 Order IX does not apply.

I. (B) Passing An Ex Parte Decree:

As per Rule 1 of Order VIII C.P.C the defendant has to submit a written statement in 30 days from the date of service of summons. However, in exception circumstance not more than 90 days from the date of service of summons. [2] If the defendant fails to submit in such period the Court on the basis of facts can adjudge the matter. [3] A decree passed under Rule 10 of Order VIII for the defendant’s default in filing a written statement is nevertheless an ex parte decree, which is subject to Rule 13 of Order IX. [4] If as a result ex parte decree is passed by the competent Court despite due notice to the party, there no failure of natural justice.

Non-appearance of one of the party on the date of hearing does not necessarily entail that an ex parte decree would follow. If the evidence adduced does not support the claim of the plaintiff, the Court cannot pass an ex parte decree. [5] However, this is qualified as there is an obligation on the Court to weigh the merits of the case and consider whether it is a fit case for granting such decree. [6]

Part II. Reliefs Available Against An Ex Parte Decree

A party against whom an ex parte decree is passed can seek relief by the following ways: [7]

Set Aside: Applying to the Court which has passed such decree to set aside the decree. [8]

Appeal: Preferring an appeal against the decree. [9]

Review: Applying for revision [10] ; and

Fraud: Suit on fraudulent grounds.

All the remedies are concurrent and can be prosecuted concurrently.

Setting Aside of the Ex Parte Decree: Application under Order IX Rule 13 of Code of Civil Procedure dealing with Setting aside of decree ex parte against the defendant can be entertained only the following two grounds:

1. Where summons were not duly served
2. Where defendant was prevented from sufficient cause from appearing where the fact called for hearing. [11]

However, this rule is available only if the person against whom the ex parte decree is passed on grounds of default of appearance as per Rule 6 Order IX. [12] Under this rule only the defendant-petitioner can avail this remedy. [13] Non- party to the suit cannot apply through this rule unless if he proves that his interest is affected by such decree. [14]

Conditional Relief:

The Court on satisfaction of the grounds may impose conditions for setting aside the decree. It may order for payment of costs or may ask the defendant to deposit the decretal amount or a part of it, or may direct him to furnish security or any other condition as the Court deems fit and appoint a day for proceedings of the suit.

The Courts have wide discretion for imposing terms and conditions on the defendant. However, conditions imposed be reasonable and should not be harshly excessive. [15] They should exercise discretion reasonably and judicially and not arbitrarily or capriciously. [16] Superior courts can set aside such terms and conditions if are onerous or unreasonable. [17] Non-compliance with any of the conditions would result in dismissal of the application for the restoration of a case. [18]

The Supreme Court held that the terms imposed should not be onerous or vague nor should they have the effect of prejudging the controversy involved and of practically decreeing the suit even though the ex parte order is set aside. The terms should be based on facts and circumstances of that particular case. The terms should not be such that defendant ends up in a worse position than if he had not approached the Court for setting aside the decree. The trial court set aside ex parte order on a suit involving eviction and recovery of arrears condition that the tenants deposit monthly lease amount in the Court. On facts the Supreme Court held that the conditions imposed were too onerous, vague and lack clarity.

Limitation on Filing the Application for Setting Aside an Ex Parte Decree

Limitation period for filing an application for setting aside an ex parte decree is 30 days from the date of knowledge of the decree. In Gauhati University v. Niharalal Bhattacharjee [19] summon was served to the petitioner on May 28th, 1990 for appearance on the next day. As per Rule 6 of Order V as there was lack of sufficient time for appearance the suit was adjourned to July 19th, 1990 but the date was not communicated to the other party. The SC held that as the summons was not duly served the limitation began to run only when the petitioner had the knowledge of the order. Hence, as the applicant filed within the 30 day period the decree was set aside.

Effect of Setting Aside an Ex Parte Decree:

After an ex parte order is set aside the suit is restored to file and parties are relegated to the position they occupied before the non-appearance of the defendant, and the court will proceed with the suit de novo and decide on merits. [20] If an application for setting aside is rejected an appeal lies against such order. [21]

Appeal: As per Section 96 (2) a person against whom an ex parte decree is passed can appeal and has not exhausted his remedy under Rule 13 Order IX.

• If an appeal under Order XLIII filed against ex parte decree under section 96.
• If an application for setting aside an ex parte decree is rejected then the defendant cannot appeal against the decree grievence about proceedings ex parte cannot be put forward.

Review: Rule 1 Order XLVII CPC provides for review against a judgement. If the petitioner on fulfilling the requisite grounds can apply for review of the decree.

Fraud: See Part IV of the article.

As noted explained above, the party against whom an ex parte decree is passed apart from review petition and a suit for setting aside on fraudulent ground has two remedies i.e. application under Order IX Rule 13 or appeal. The party can avail both the remedies simultaneously. In Bhanu Kumar Jain v. Archana Kumar [22] the Supreme Court on the ground of public policy observed that there is no statutory bar to avail both remedies simultaneously because the defendant’s right of appeal under a statute cannot be taken away unless it is not contrary to any other statutory provisions. The Court said:

A right to question the correctness of a decree in a first appeal is a statutory right. Such right shall not be curtailed nor shall any embargo be fixed thereupon unless the statue expressly or by necessary implication says so. [23]

In the appeal, however, is dismissed then the party as per the explanation [24] appended to Order IX Rule 13, the party cannot apply for setting aside under this rule.

Under Order IX Rule 13 the defendant can

• Question the soundness of the decree posting the case for ex parte hearing
• Contend that he had sufficient grounds for non appearance on the date of hearing.

If an appeal is carried on under § 96 (2) after the dismissal of application under Order IX Rule 13, the above grounds cannot be raised. The defendant can taking the following grounds in such appeal:

The material brought on record by the plaintiff were not sufficient for passing a decree in his favour or

• The suit could not have been posted for ex parte hearing or
• The suit is not maintainable. [25]

Abuse of the Remedies:

The Supreme Court in Vijay Kumar v. Kamlabai [26] held that sufficient reasons for non-appearance in the proceedings and subsequent application for setting aside the ex parte decree for the purpose of causing delay in the proceedings should not be encouraged.

Section 115 CPC deals with revision powers of the High Court. In Ariyur Mohammad Habeebur v. Ansuri Varamma [27] held that it would not be appropriate for the High Court in exercising its revisional powers to disturb the ex parte award even if it faulty.

Part III. Sufficient Cause for Non-Appearance

III. (A) Sufficient Cause for Non- Appearance on the Date of Hearing:

Rule 13 of Order IX of Code of Civil Procedure reads as under:

“Setting aside decree ex parte against defendant – In any case in which a decree is passed 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 there was sufficient for his failure to appear 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 (sic) as it thinks fit, and shall appoint a day for proceeding with the suit:”(emphasis added)

The petitioner has to satisfy the court that he had sufficient cause for his absence on the date of hearing and when the evidence was called for hearing. An application under this rule cannot be entertained on moral or humanitarian grounds however; the Courts cannot be deaf toward the realities of life. [28]

III. (B) Proviso to the Rule:

Proviso to Rule 13 of Order IX read as follows;

“Provided further 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.” (emphasis added)

III. (B) (1) Date of Hearing:

Ex parte decree cannot be set aside if the party against whom the decree is passed if he had knowledge of the date of hearing. Even if irregularity in the service of summons is established if the defendant had the notice of the date of hearing the Court cannot set aside the ex parte decree. In R.S. Bhatnagar v. Bakt Sajjan [29] the Court noticed the difference between irregularity and illegality in service of summon. Illegality in service of summons is when the process is in contravention of some statutory provision which renders it void and whereas irregularity is a defect in following the procedure laid down thereof and may not render it void.

In Prateek Sharma v. Vimal Chand Agarwal [30] the Court held that notwithstanding any irregularity in service of summons deliberate inaction of the applicant despite of knowledge of the proceedings cannot be justified in his claim for setting aside the ex parte decree.

III. (B) (2) Reasonable Time to appear for hearing:

Sufficient time is to be given for the defendant to appear and answer the plaintiff’s claim. [31] However, the knowledge of pendency of suit does not any infer his knowledge about the date of hearing. [32]

The connector “and” in the proviso signifies that both the elements i.e. knowledge of the date of hearing and reasonable time to appear before the Court should be present. [33] The objective of the proviso is to prevent delaying tactics of the defendants and nature of the proviso is on an exception to the general rule. [34]

III. (C) Burden of Proof:

Burden of proof is on the applicant who prays for setting aside the ex parte decree to establish that summons in the suit was not duly served on him or that there was sufficient cause for non-appearance. [35] With respect to Proviso 2, the burden is on the person taking advantage of the exception. [36]

III. (D) Prior Conduct of the Applicant:

In G.P. Srivastava v. R.K. Raizada [37] the Supreme Court held that the sufficient cause for non-appearance refers to the date on which the ex parte decree was passed due to his absence and this cannot be stretched to rely upon other circumstances anterior to in time. The defendant cannot be penalised for previous negligence which had been overlooked and subsequently condoned. In the absence of any mala fide intention and remedy sought not barred by limitation, the Courts should favour the defendant unless there are sufficient grounds to the contrary. The Court opined that the provision for setting aside the decree should be given a broad construction and no hard-and-fast guidelines can be prescribed.

III. (E) Irregularity in Serving Summons:

The Supreme Court in Sushil Kumar Sabharwal v. Gurpeet Singh [38] held that non-service of summons is a ground for setting aside an ex parte decree. The service of summons to the party cannot be a mere formality but should, in fact, be reality. In Naresh Chandra Agarwal v. Bank of Baroda [39] the appellant application for setting aside an ex parte decree was rejected by Trial Court and subsequently by the High Court as it considered the validity of notice of substitution sent to the permanent residential address rather than his actual present residence. The plaintiff admitted in his affidavit that the appellant was working in some other place at the relevant time. In appeal the Supreme Court has set aside the decree as it considered that summon was not served in reality.

In Rabindra Singh v. Financial Commr. Coop., [40] an ex parte decree was passed against the defendant who was residing in foreign country for the past 25 years and has never received any notice though the plaintiff had knowledge of his correct address. Summons were effected to the village address. The Court held that ex parte decree passed in the event of non-appearance of the defendant without providing an opportunity of hearing to him caused prejudice to defendant and it is against the principles of natural justice.

When seeking remedy against an ex parte decree the Court before exercising its discretion should satisfied that summons were not proved to be served duly.

III. (F) Refusal to Accept Summons:

If the applicant refuses to accept the notice and pleads for setting aside the ex parte decree on the ground of absence of notice cannot be entertained. [41] However, if the defendant did not accept summons bona fide on the grounds of misdescription, even though the service is held to be good, the ex parte decree passed as a result can be set aside. [42]

Part IV. Ex Parte Decree Obtained by Fraud

A regular suit can be instituted against an ex parte decree allegedly obtained by fraudulent means. [43] To maintain such action, it should be proved that the fraud alleged must be actual, positive fraud, a meditated and intentional contrivance so as to keep the parties and the Court under the dark so as to obtain a decree by that contrivance. [44] The suit is maintainable despite unsuccessful application made under Rule 13 Order IX or rejection of application for appeal. [45]

IV. (A) Non- Service of Summons:

Mere non-service of summons is not a ground in itself to set aside an ex parte decree on the grounds of fraud but fraudulent suppression of summons is. [46] In A.C. Ananthaswamy v. Boriah [47] there was a bare allegation of fraud. Moreover, no allegation of fraud was made in the two proceedings prior to this appeal. The question before the Court was whether non –service of summons amount to fraud. The court said a suit for setting aside an ex parte decree on mere non-service of summons is not maintainable.

If the Court rejects the defendant application for setting aside the decree under Order IX Rule 13 on the grounds of fraud in case of non-service of summons upon him subsequent regular suit for setting aside on the same fraud is barred due to application of res judicata. [48]

IV. (B) Standard of Proof:

To establish an allegation of fraud it must be demonstrated that the representation made was false to the knowledge of the party making such representation or lack of reasonable grounds for the party to belief that it was false. The standard of proof is extremely high.

Non-service of summons or falsity of claim as a ground for fraud cannot alone be sufficient for maintaining a suit, however, once non-service of summons is established, falsity of the claim would be an element from which fraud could be inferred and a decree could be passed setting aside the ex parte decree when both these elements co-exists. [49]

Conclusion

The Right to be heard in a suit is one of the tenets of principles of natural justice and our Civil procedure duly provides for such right to the party. Despite the sufficient opportunity provided if the party does not avail this to explain himself, in court hears the suit ex parte. In order for the justice system to be efficient and to not prejudice the rights of the plaintiff this is justified.

However, owing to unavoidable reasons the party might not appear for the hearing. In such cases the Code is sensitive those genuine cases. On careful reading of Order IX Rule 13 it is obvious that the applicant for setting aside the ex parte decree should satisfy the Court that there was sufficient cause for its non- appearance on the date of hearing. As noted earlier an application under this rule cannot be entertained on moral or humanitarian grounds however; the Courts cannot be deaf toward the realities of life.