Ex-Parte Decree - When one does not appear

KEY TAKEAWAYS

• A court ruling made in favour of one party when the other is not present or has not had a chance to participate in the proceedings is known as an ex-parte order.
• An ex-parte order can be set aside by the party it was made against by making an application per order 9 rule 13 to the court that issued the order.
• The applicant needs to provide valid grounds for reversing the ex-parte order.

INTRODUCTION

‘Judgment,’‘Decree,’ and ‘Order’ are the most common terms used throughout any judicial proceeding. At the conclusion of every court-adjudicated matter, whether civil or criminal, the judge pronounces a verdict. A decree is a document that the court drafts after a civil matter is concluded, and a judgment is rendered. It has the court seal on it and is signed by the judge. After the decision is rendered, a decree is probably drafted in 15 days or less. A civil suit's process typically concludes when the court issues a decision on a particular issue.

According to Section 2 (2) of the Code of Civil Procedure (1908), a ‘decree’ is the formal statement of a dispute resolution by the civil court that establishes the parties' rights definitively with respect to all the issues in dispute in the civil suit.

WHAT IS AN EX-PARTE DECREE?

There is an exception to the usual norm that states that both parties must be present when an adjudication is made.When the court determines that the defendant has not shown in court on the day of the hearing specified in the summons that was issued to him in compliance with the Code's rules, it may proceed ex parte and issue an ex parte decree under Order 9, Rule 6(1)(a).

However, the court will send the defendant another summons if the first is not properly served. The court will reschedule the case to a later time if the summons is correctly served but the defendant is not given enough time to appear in court. The plaintiff will be required to cover the expense of the hearings' postponement if the court determines that the plaintiff was at fault for the summons' improper serving.

• The Karnataka High Court declared in M Krishnappa v. Mensamma (2020) that if the defendants appeared but did not provide an argument, the case would be considered Ex Parte, and the defendants might file a petition under Order 9 Rule 13 of the CPC.

WHEN CAN THE COURT PASS THIS DECREE?

Rule 10 Order 8

According to Rule 1 of Order 8 of the CPC, the defendant has 30 days from the date the summons was served to provide a written statement.

The court may extend this thirty-day window to a maximum of ninety days following the date the summons was served.

Rule 10 of Order 8 gives the Court the authority to issue an Ex-Parte Decree if the defendant does not provide the written statement within the allotted time. The court, in its discretion, can also grant adjournments for special reasons before passing an ex parte decree, but it cannot be granted more than three times.

Order 9, Rule 6 Order IX, Rule 6 states that the case may be tried ex parte if the plaintiff appears on the day specified in the summons for the defendant to appear and answer, but the defendant does not appear, and it is demonstrated that the summons was properly served in time for the defendant to appear and answer on the day named in the summons.However, the plaintiff must prove this case to the satisfaction of the Court, before he can obtain a decree.

• Regarding the provisions of Order IX, Rule 6 and Order VIII, Rule 10 of the CPC, it was noted in the case of Ramesh Chand Ardawatiya V/s Anil Pajwani, that even if the suit proceeds ex-parte under Order IX, Rule 6 of the CPC, the plaintiff's burden of proving its case cannot be waived.

APPLICATION FOR SETTING ASIDE EX PARTE DECREE

The party that an ex-parte order has been made against must apply to the court that issued the order to have it set aside. Usually, this application is submitted in accordance with CPC Order IX Rule 13. The party requesting to set aside the ex-parte order should specify in the application the reason they are requesting to do so.

VALID GROUNDS ON WHICH IT CAN BE SET ASIDE

The ex-parte decree must be set aside for a good reason, according to the applicant. Seeking to have such an order set aside can be justified on two main grounds:

1. Improper service of Summons: The petitioner may contend that they were not given adequate notice of the court proceedings, frequently because of anomalies or shortcomings in the summons service. To prove that their lack of attendance was due to inadequate notification of the proceedings, the applicant must provide evidence.
2. Sufficient Cause for Non-Appearance: The applicant may alternatively assert that they were unable to present in court due to a "sufficient cause." The CPC does not define ‘sufficient cause,’ thus the court will have to interpret it. Usually, it includes explanations for the absence such as illness, unforeseen events, or other strong arguments.
3. Illness or incapacity: Setting aside the ex parte decree may be warranted if the defendant's inability to present in court was caused by illness, physical incapacity, or any other justifiable reason that interfered with their ability to attend the proceedings.
4. The ex parte decree may be challenged by the defendant on the grounds of error, mishap, or inadvertence. This could apply in cases where the defendant was not given enough notice of the proceedings or if their non-appearance was the result of a miscommunication or error.

• "The law is well settled that in case of summons being not duly served, the limitation would run from the date of knowledge to the party who makes application for setting aside the ex-parte decree," the honourable Patna High Court said in the case of Saket Kumar v. Nitu Kumari. Furthermore, the court ruled that the lawsuit against the defendant may only move forward ex parte if the plaintiff could demonstrate to the satisfaction of the judge that the defendant failed to show up despite the summons being properly served.
• New Bank of India vs. M/S. Marvels (India) (2001): The significance of providing a "sufficient cause" for non-appearance is emphasized in this case. The court cannot overturn the ex-parte order even if the appellant is determined to have presented their case negligently and cannot give a compelling argument. This emphasizes how important it is for the defendant to take serious action when defending their rights.

SUPPORTING EVIDENCE - NO PROOF NO REMEDY!

The applicant must back up their claims with supporting evidence. For instance, the petitioner might have to present evidence that the summons was improperly served if that is the basis for overturning the decision. Affidavits or other pertinent documentation proving the cause should be submitted if the ground is sufficient cause.

If the applicant wants the ex parte decree to be overturned, they must demonstrate that the summons in the case were not correctly served to him or that they had a valid excuse for not showing up. The individual using the exception is responsible for demonstrating compliance with the reason stated for being late.

A fraud allegation needs to be substantiated, either by the party making the representation knowing it was false or by the party not having a good cause to think it was. The standard for proof is high. However, if it is established that the summons was not served, fraud may be presumed based on the claim's inaccuracy, and if all these conditions are met, a decree annulling the ex parte decision may be issued. A lawsuit cannot be upheld only based on non-service of the summons or false claims made to prove fraud.

NON-APPEARANCE OF THE PLAINTIFF

Following the guidelines in Rule 1 of Order IX of the Code of Civil Procedure, all parties to the lawsuit are required to appear in court on the date specified in the summons, either in person or through designated legal representation.

Under Order 9 rule 8, If the plaintiff does not show up for the scheduled hearing and the defendant does, the court will order the suit to be dismissed. Alternatively, if the defendant admits all or part of the claim, the court will issue an order against the defendant based on that admission, and if only part of the claim has been admitted, the suit will be dismissed in relation to the remaining portion.

The court can dismiss a lawsuit in accordance with Rule 3 of Order IX if neither the plaintiff nor the defendant appear in court for the suit hearing. It is noteworthy that the dismissal of the lawsuit under this rule does not preclude the filing of a new lawsuit under Rule 4 based on the same cause of action.

There is a clause that allows the plaintiff to file an application to reverse the dismissal order in an action that has been dismissed because the plaintiff failed to present himself. The court has the power to revoke the dismissal decision and set a new date for the continuation of the proceedings if it is satisfied that the explanation for the non-appearance was a legitimate one.

• The court cannot dismiss a lawsuit in cases where the plaintiff's death prevents them from appearing. Even in the unlikely event that such an injunction is made, it will be deemed null and void, as established in the P.M.M. Pillayathiri Amma v. K. Lakshi Amma case.

LIMITATION PERIOD – TILL WHEN?

Section 123 of the Limitation Act provides for the limitation in filing an application to set aside an ex parte decree. For an ex parte judgment to be legally accepted, it must be contested within 30 days of becoming known about it. On May 28, 1990, the petitioner in Gauhati University v. Niharalal Bhattacharjee received a summons requiring him to appear the next day. Because there was insufficient time for an appearance, the matter was postponed to July 19, 1990, in line with Rule 6 of Order 5. The opposing party was not notified of the new date, though.

The Supreme Court decided that the statute of limitations could not begin to run until the petitioner was made aware of the order since the summons was not properly served. Consequently, the order was reversed as the petitioner filed it within the 30-day window.

• In the case of Bhiwani Sahi Bishamber Dayal VS Deena, the Rent Controller overturned an ex parte decree in a rental dispute case because an application was submitted within the statute of limitations, even if adequate cause was not demonstrated. In addition, there was a fee levied by the Rent Controller to set aside the ex parte decree.

REMEDIES PROVIDED UNDER CPC,1908

A legal remedy, also known as a remedy at law, is a procedure that allows those who have suffered injury to obtain damages for their losses. Injunctions, damages, or specific performance are a few examples of this.Administering justice is the paramount goal for an ideal judicial system and that cannot be done without hearing all the sides of a case.Therefore, if a party feels that they have been wronged by getting an ex-parte decree for their case, they can seek remedy for the same with the help of various provisions given under the Indian legal framework, which are:

ORDER 9 RULE 13- WHAT IS IT ABOUT?

Only the following two grounds may be considered in an application under Order 9 Rule 13 of the CPC to set aside a decree ex parte against the defendant:

1) WHETHER SUMMONS WERE DULY SERVED.

2) WAS THERE SUFFICIENT CAUSE. However, according to Order 9's rule 6, this provision is only applicable to those who have defaulted on their attendance. This rule states that only the defendant, not the non-party to the lawsuit, may use this remedy unless he can demonstrate how the decree would harm his interests. Only the defendant can avail of this remedy unless he proves that he is genuinely affected by the decree.

• The Supreme Court ruled in Subodh Kumar v. Shamim Ahmed (2019) that the court could revoke the ex parte decree issued against each defendant if the defendant could prove that the summons was not served correctly.
• The Apex Court set aside an Ex-Parte decree in Bhanu Kumar Jain v. Archana Kumar & Anr (2004) on the grounds that the defendant had good reason to be unable to appear at the suit's hearing on the day specified in the summons.

Thirty days from the decree's date is the limitation period for applying to set aside an ex-parte decree.

• The Supreme Court held in Gauhati University v. Shri Niharlal Bhattacharjee (1995) that the limitation period starts to run when the appellant becomes aware of the ex parte decree in cases where the summons was improperly served.
• The Honourable Supreme Court ruled in Vishwa Bandhu V. Sri Krishna and Anr, that the defendant may not request the reversal of an ex parte decree if he had refused to accept the summons. According to Order V Rule 9 (5) of the CPC, among other things, "if the defendant or his agent refuses to take delivery of the postal article containing the summons then the court shall declare that the summons was duly served on the defendant," a bench of Justices Uday Umesh Lalit and S Ravindra Bhat noted.

Consequences of annulling an ex-parte decree: When an ex-parte decree is overturned, the lawsuit is reinstated and resumes as it did before the decision. The ex parte proceeding's recorded evidence should not be considered during the trial, which should start over from scratch.

SECTION 96(2)- An appeal may lie from an original decree passed ex parte.

Under Section 96(2) of the CPC, the defendant may also appeal the ex parte decree to the High Court's special bench. The fact that the application submitted in accordance with Order 9 Rule 13 was rejected does not waive the defendant's statutory right to appeal under Section 96(2) of the Code. According to this Section, the party that was wronged by a decree has the option to appeal to higher authorities on at least one occasion.

• The right to appeal is a statutory and substantive right of the party, and it cannot be taken away from them, the Supreme Court said in Bhivchandra Shankar More v. Balu Gangaram More and others (2019). As a result, the defendant can use both the appeal under Section 96(2) of the Code and the remedies application under Order 9 Rule 13.

SECTION 115-Revision

Any case determined by a court subordinate to the High Court in which there is no right of appeal may be called for by the High Court. If the subordinate court attends, the High Court may request the record of that court.

The High Court may issue any order it deems appropriate in this instance:

• If the parties involved have violated the law.
• Exerted authority not granted to them.
• Neglected to exercise the authority granted to them.
• Or acted in an unlawful or materially irregular manner while exercising their jurisdiction.

• The High Court is not required to consider the quality of the evidence when using its revisional powers. Its sole responsibility is to determine whether the court whose order is being reviewed has complied with all legal requirements and whether any irregularities in the court's failure to exercise jurisdiction warrant interfering with the order, as stated in Dinshaw Iron Works v. Mitakhan Adamji.

ORDER 47 RULE 1- Application for review of judgment.

The defendant may request a review of the court's order by utilizing Order 47 Rule 1 and Section 114 of the Code. When new information comes to light, the court may find a flaw, or there may be a good reason to file a review application. A party that feels wronged by a decree has the right to file a review application against the decree, and while an appeal from the decree is permitted, none is submitted. The decree requires that a review application be submitted within thirty days after its passing.

• It was declared in Parsion Devi and Ors. v. Sumitri Devi and Ors. (1997) that the judgment might be susceptible to reconsideration if there was an obvious mistake or error on the surface of the record. It is challenging to argue that an error that requires rational analysis to be established is evident from the record alone and warrants the Court's use of its review power under Order 47 Rule 1 CPC.

Filing of a suit on the ground of fraud: -

A case aimed only at setting aside an ex-parte decree is inadmissible; however, if the plaintiff obtained the order via deception, the defendant may bring a lawsuit against the decree. Then, even in the event that an appeal application is denied or an unsuccessful Rule 13 Order 9 application is lodged, the lawsuit is maintainable.

The plaintiff's plaint may be rejected by the court if it is established that the lawsuit is either barred by the statute of limitations or fails to disclose the cause of action.

THE AFTER-EFFECTS

If an ex parte order is reversed, the parties are returned to their pre-defendant positions, the case is reopened, and the court renders a decision based on the merits of the case. There is an appeal process available if a request to set aside is turned down. Appeal: A person who is the subject of an ex parte decree and who has not exhausted all of his or her remedies under Rule 13 Order 9 may do so in line with Section 96(2). The defendant is not permitted to appeal the decision or file an ex-parte grievance if their attempt to set aside an ex-parte judgment is rejected.

Review: Rule 1 Order 47 CPC permits a judgment to be reviewed. The petitioner may ask for a review of the decree if they satisfy the prerequisites.

EX PARTE DECREE AND RES JUDICATA

To begin with we will understand what the term ‘res judicata’ actually means.The theory, which comes from the Latin "a matter judged," forbids parties from bringing up the same argument in support of a decision that has already been made. The concept aims to preserve judicial resources and guarantee the finality of verdicts. In addition, it is usually not in the public interest to litigate an already decided case repeatedly.

Until it is reversed, an ex parte decree remains enforceable and legitimate. But whether the case was judged on its merits is the real yardstick for res judicata. In order to determine whether the judgment was rendered on the merits, one must first determine whether it was merely formal in nature, whether it was issued as retribution for any actions taken by the defendant, or whether it was founded on an assessment of the veracity or falsity of the plaintiff's claim—regardless of the fact that the plaintiff presented the evidence while the defendant was not present. Therefore, just because a decree was passed ex parte does not mean that it is res judicata. As a result, it acts in res judicata.

CONCLUSION

The Indian Civil Procedure Code offers the legal remedy of setting aside an ex-parte order to address situations in which a party has suffered an unfavourable effect from an order issued without their presence. The defendant must provide sufficient justification for their non-appearance or show that the summons was not served properly to succeed in having the order set aside.Therefore, it will be better to comply with the directions as given by the court rather than delving into an ocean of further legal procedures or remedies.