Ex parte decree & remedies

January 19, 2019

Aim – This article focuses to explain the Meaning of Ex Parte Decree and in which situations it can be passed and what are the remedies for the same.

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

Here Order 9, rule 6(1)(a) talks about the procedure when only plaintiff appears . here the order 9 rule 6(1)(a), talk about that were the plaintiff only appears and the defendant not appears when the suit is called on for hearing then it should been seemed the procedure

(a) when summon duly served[22] – here we can say that when the summon should be duly served, the court may make an order that the suit be heard ex-parte

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

Decree can only be given in relation to a suit. Although CPC does not define what suit means, in Hansraj vs Dehradun Mussoorie Tramways Co. Ltd.[23] the Privy Council defined the term suit as “a civil proceeding instituted by the presentation of a plaint”.

Remedies against ex-parte decree

1. An application under Order 9, Rule 13

The main contention of the learned counsel for the appellant is that, when the defendant in the suit failed to let in evidence and failed to participate in the suit proceedings further, the trial Court ought not to have passed judgement merits under order 17 Rule 3 and instead should have passed only an Ex-parte judgement under order 17 Rule 2 CPC. Therefore, according to the learned counsel for the appellant, the judgements of both the courts below are to be set aside and remitted back for fresh consideration after giving an opportunity to the defendant/appellant to let in evidence on her behalf. According to the learned counsel for the appellant, the evidence

First Appellate Court and contested the appeal on merits and it was not the contention of the defendant that the judgement is an ex-parte one and therefore, the First Appellate Court judgement is liable to be set aside and send it back to the trial Court for re- consideration. A perusal of the memorandum of grounds of first Appeal filed before the Lower Appellate Court will show that the appeal challenged the decree of the trial Court on merits and their main contention before the Lower Appellate Court was that the suit was decreed not on the strength of the plaintiff’s case but on the weakness of the defendant’s case and therefore, the judgement should be set aside. Thus, the question, as raised before this Court for the first time under the guise of substantial question of law, did not arise at all in the second appeal. In 2005(4)LW 578, (cited supra), the defendant filed an application under Order 9 Rule 13 to set aside the ex-parte decree, but, the trial Court dismissed the application on the ground that the suit was disposed merits and the application filed under Order 9 Rule 13 CPC was misconceived. When this was challenged before this Court,this Court found that before the trial Court, the plaintiff examined PW1 to PW5 in chief and they were not cross-examined by the defendant. Hence, the plaintiff’s side evidence was closed and the suit was adjourned for the evidence on the side of the defendant. The defendant did not let in any evidence and the trial Court passed a judgement and decree which was held by this Court in that case that it was only an ex-parte decree under Order 17 Rule 2 and not a judgement on merits under Order 17 Rule 3 CPC.[24]

2. A review application u/s 114

Section 114 empowers the court to review its order if the condition precedent laid down therein are satisfied .the substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided under the s.114 of the code in terms whereof it is empowered to make such order as it thinks fit [25]

In another case Kalpatru Agro Forest Enterprises v. Union of India ,[26] were the question regarding the concession in respect of and overhead charged was concluded in the earlier writ petition by the allottees and the special leave petition in a special leave petioner by supreme court also dismissed.

The Code of Civil Procedure is not maintainable since the provisions of C.P.C. has noapplic action when the scheme of compromise is being conducted under the Companies Act and that being a special law, the provisions of Civil Procedure Code could not be invoked. Counsel further submits that the review petition in case of judicial/quasi-judicial orders is not maintainable unless the statute/rules so permit and in absence of any provision in the Act granting an express or implied power of review, a review could not be made and the order in review, if passed, will be wholly without jurisdiction. In support of his submission

3. An appeal under sec.96

In general, an appeal lies from any decree passed by the court. (Sec. 96) In cases, where the value of suit does not exceed Rs.10, 000 An appeal can be filed only on a question of law. (Sec. 96) When a decree has been passed against the Defendant as “Ex-Parte”, i.e. without his appearance, no appeal is allowed. (Sec. 96) When an appeal is headed by two or more judges, then the majority decision shall prevail. In case there is no majority, then the decree of lower court shall be confirmed. In case, the number of judges in the court, where appeal is filed is more, than the number of judges hearing the appeal, then if there is a dispute on a point of law, such dispute can be referred to one or more judges.

Procedure For Appeal From Original Decrees (Order 41) The appeal shall be filed in the form prescribed, signed by the appellant, along with a true certified copy of the order. The appeal shall contain the grounds of objection under distinct heads, and such grounds shall be numbered consecutively. If the appeal is against a decree for payment of money, the court may require the appellant to deposit the disputed amount or furnish any other security. A ground / objection which has not been mentioned in the appeal, cannot be taken up for arguments, without the permission of court. Similarly any point of act which was not taken up y the Appellant, in lower court, cannot be taken up in appeal lies only against only those points which have been decided by the court rightly or wrongly.

4. A proceeding to set aside the decree on the ground that it has been obtained by fraud etc. u/s 12

In a case Hari Ram v. Lichmaniya[27], were the suit was wrongly instituted against a person as heir of another person and decree , a fresh suit against the real heir is not barred .were the u/s 12 its stated that were the plaintiff is precluded by rule from instituting a further suit in respect of particular cause of action , he shall not to be entitled to institute a suit in respect of of such cause of action in any court in which this code applies.

5. An application for re-hearing of the matter on the ground of violation of the principles of natural justice

6. In appropriate cases the inherent powers of a court may also be attracted or a writ may lie or a revision may also lie.

Grounds

The two grounds on the basis of which an ex parte decree can be set aside under Order 9, Rule 13.

That the summons was not duly served, or
That the defendant was prevented by sufficient cause from appearing when the case was called on for hearing.

If either of these conditions is satisfied, the court must set aside the decree and where these conditions are not satisfied the decree cannot be set aside. This question has to be decided on the basis of evidence or affidavits

Summons not duly served

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

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

By virtue of the proviso, an ex parte decree will not be set aside on the ground of irregularity in the service of summons, when the court for reasons to be recorded, is satisfied, that notwithstanding such irregularity, the defendant had knowledge in sufficient time to appear on that date and answer the claim.

Sufficient cause

Where sufficient cause is shown, the decree shall have to be set aside. The term ‘sufficient cause’ is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases and each case is to be judged upon its particular circumstances, and where non-appearance is not intentional, a strict view should not be taken to put a party out of court. The term sufficient cause means beyond the control of a party and cannot include cases of extreme negligence.

Upon such terms as to costs etc

The rule gives a wide discretion to the court in the matter of imposing conditions upon ordering the setting aside of an ex parte decree. A court can make an order of restoration subject to fulfillment of conditions, but it should clearly specify the consequences of non-fulfillment of conditions. The court can also extend the time for fulfillment of the conditions.

Effect of setting aside

Upon setting aside of an ex parte decree, the status quo ante is restored and the trial commences de nova from the stage at which the proceedings were taken ex parte. However, where the decree is set aside on the ground that the claim is fraudulent, the suit cannot be restored and tried.

Dismissal of setting aside application

In appropriate cases restoration can be made u/s 151. An appeal may lie against the dismissal of the application in default.

Limitation

An application under Order 9 rule 13 must in accordance with the bounds of Art. 164 of the Limitation Act 1908 be made within 30 days of the decree.

Appeal

The following types of orders can be passed under rule 13:-

An order setting aside the decree which is not appealable nor can it be attacked under S. 105.
An order setting aside the decree on certain terms which is by itself not appealable.
An order rejecting an application under Order 9 rule 13 is dismissed on merits; it cannot be attacked under S. 105 before the court hearing an appeal against the decree.
Pending proceedings to set aside the decree, execution can be stayed.

Revision

An order setting aside an ex parte decree is not a decree. A revision against the order may lie if the conditions of S. 115 are satisfied, as for instance, where the order is contrary to the provisions of Order rule 13, or where the court has disposed of the application upon a consideration of the merits of the decree, or has refused to set aside the decree despite the fact that summons was not duly served or has disposed of the matter on an erroneous view regarding limitation etc. However, no revision will lie if an alternate remedy is available.

Consequences of Non appearance of parties (Order 9)

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

Rule 1 – Parties to appear on day fixed in summons for defendant to appear and answer — On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.

Dismissal of Suit

Rule 2 – Dismissal of suit where summons not served in consequence of plaintiffs failure to pay cost— Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, or to present copies of the plaint or concise statements, as required by rule 9 of order VII, the Court may make an order that the suit be dismissed:

Provided that no such order shall be made, if, notwithstanding such failure the defendant attends in person (or by agent when he is allowed to appear by agent) on the day fixed for him to appear and answer.

Rule 3 – Where neither party appears, suit to be dismissed— Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

Rule 4 – Plaintiff may bring fresh suit or Court may restore suit to file— Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in rule 2, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.

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

(1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved the plaintiff fails, for a periods of one month from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that-

(a) he has failed after using his best endeavours to discover the residence of the defendant,who has not been served, or

(b) such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

Ex parte Proceedings

Rule 6 – Procedure when only plaintiff appears-

(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-

(a) When summons duly served—if it is proved that the summons was duly served, the Court

(b) When summons not duly served—if it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant;

(c) When summons served but not in due time—if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiffs’ default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.

Res Judicata under Code Of Civil Procedure, 1908

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

Section 11 says thus:

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

Explanation I: The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II. For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III. The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V. Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI. Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Explanation VII. The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII. An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

The doctrine has been explained by Justice Das Gupta as follows –

The principle of Res Judicata is based on the need of giving a finality to the judicial decisions. What it says is that once a case is res judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter- whether on a question of fact or a question of law has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvas the matter again.

Essential Elements for Res Judicata

1. The matter in issue in a subsequent suit must directly and substantially be same as in the previous suit.

2. The former suit must have been between the same parties or between parties under whom they or any of them claim.

3. Such parties must hae been litigating under the same title in the former suit.

4. The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised.

5. The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit.

Illustrations

The onus of proof lies on the party relying on the theory of res judicata.

Exceptions to application

Res judicata does not restrict the appeals process, which is considered a linear extension of the same lawsuit as the suit travels up (and back down) the appellate court ladder. Appeals are considered the appropriate manner by which to challenge a judgment rather than trying to start a new trial. Once the appeals process is exhausted or waived, res judicata will apply even to a judgment that is contrary to law.

The provisions of section 11 of the Code are mandatory and the ordinary litigant who claims under one of the parties to the former suit can only avoid its provisions by taking advantage of section 44 of the Indian Evidence Act which defines with precision the grounds of such evidence as fraud or collusion. It is not for the court to treat negligence or gross negligence as fraud or collusion unless fraud or collusion is the proper inference from facts.

In Beliram & Brothers and Others v. Chaudari Mohammed Afzal and Others it was held that where it is established that the minors suit was not brought by the guardian of the minors bona fide but was brought in collusion with the defendants and the suit was a fictitious suit, a decree obtained therein is one obtained by fraud and collusion within the meaning of section 44 of the Indian Evidence Act, and does not operate res judicata. The principle of res judicata in section 11 CPC is modified by section 44 of the Indian Evidence Act, and the principles will not apply if any of the three grounds mentioned in Section 44 exists.

Failure to apply

When a subsequent court fails to apply res judicata and renders a contradictory verdict on the same claim or issue, if a third court is faced with the same case, it will likely apply a “last in time” rule, giving effect only to the later judgment, even though the result came out differently the second time.

Constructive Res Judicata

The rule of direct res judicata is limited to a matter actually in issue alleged by one party and denied by other either expressly or impliedly. But constructive res judicata means that if a plea could have been taken by a party in a proceeding between him and his opponent, and if he fails to take that plea, he cannot be allowed to relitigate the same matter again upon that plea. In affect, the partly impliedly gives up the right to that plea by not pleading it in the previous suit.

This principle is embodied in Explanation IV of Section 11.

Ex parte decree as Res Judicata

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

It therefore acts a res judicata.

Conclusion

Frequently Asked Questions

1. What are the consequences of non-appearance of the parties on the date of hearing? Explain all the provisions in detail.

Rule 3 – Where neither party appears, suit to be dismissed— Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

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

(a) he has failed after using his best endeavors to discover the residence of the defendant, who has not been served, or

(b) such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.

2. What are the remedies available to parties against such order?

Refer to page 4-6 of this article for remedies (Points 1-7).

3. When can ex-parte decree be set aside? Explain.

The two grounds on the basis of which an ex parte decree can be set aside under Order 9, Rule 13.

That the summons was not duly served, or
That the defendant was prevented by sufficient cause from appearing when the case was called on for hearing.

Edited by – Sakshi Agarwal

Quality Check – Ankita Jha

Approved & Published by – Sakshi Raje

References

[22] Subs, by cpc (amendment)act 104 of 1976,s.59 for clause (a),(w.e.f 1-2-1977)

[23] AIR 1933 case

[24] M. Nagarathinam vs S. Alfonsa Mary on 21 January, 2009

[25] Board of control for cricket in india v. netaji cricket club. AIR 2005 sc 502

[26] AIR 2002 sc1402

[27] AIR 2003 raj 319