Summary suits

Vibhuti (Querist) 03 January 2018 This query is : Resolved
Dear Madam / Sir,

I have 2 queries about Summary Suits:

From the Plaintiff's point: If I am scheduled to get an ex-parte order from the Court, will I need to service Summons for Judgment to the opposite party?

From the Defendant's point: I want to accept liability but request the Court for waiving off the interest part. What should be my approach?

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Ms.Usha Kapoor (Expert) 04 January 2018
order ix : appearance of parties and consequence of non-appearance
https://www.nls.ac.in/lib/bareacts/civil/cpc/cpco9.html

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, ... [(a) When summons duly served- if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte;].
In summary suits Order 37CPC also same procedure is followed. Let us see:

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Passing Of The Ex Parte Decree

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

Unless the plaintiff consents in summary suits just because If defendant admitted his summary suit liability interest can[''t be waived on the loan taken on Promissory notes, Hundis, Checks etc.from plaintiff if it is reasonable.