What is sufficient cause in ex parte set aside and condonation of delay

INTRODUCTION 

A “sufficient cause” for setting aside an ex parte order and condoning a delay generally involves demonstrating genuine reasons for the delay, not negligence or lack of due diligence. This can include illness, ignorance of legal procedures, or circumstances beyond the party’s control. The court will consider if the party acted with due diligence and if the delay is attributable to any fault on their part.

What’s Ex-Parte Order?

An ex-parte order is a legal decision issued by a court without the presence or participation of one of the parties involved in a legal proceeding. This type of order is typically granted in urgent or exceptional circumstances, such as when one party seeks immediate relief and the other party is absent or has not been given the opportunity to respond.

Ex-parte orders are usually temporary and subject to review in subsequent proceedings, ensuring that both parties have an opportunity to present their cases and that justice is upheld. Examples of ex-parte orders include temporary restraining orders, injunctions or orders for the preservation of evidence.

CAN EX-PARTE ORDER BE SET-ASIDE?

Yes .The setting aside of an ex-parte order is a critical aspect of legal proceedings, particularly in the realm of civil litigation. 

This process, often governed by the Civil Procedure Code (CPC 1908) in various jurisdictions, allows the absent party to present compelling reasons, such as improper service of summons or a “sufficient cause” for non-appearance. The goal is to ensure that justice is served and that both parties have a fair opportunity to present their cases, ultimately safeguarding the principles of fairness and due process in the legal system.

Order IX Rule 13 of the Civil Procedure Code in India provides a legal mechanism for an aggrieved defendant to seek the setting aside of an ex-parte decree, which is a decree issued in favour of the plaintiff due to the defendant’s non-appearance in the proceedings. Here are the key points and provisions outlined as explanation:

(i)  Who may apply?
The defendant against whom ex parte decree has been passed may apply for setting it aside. Where there are two or more defendants, any one or more of them may also make such application.
The expression “defendant” is wide enough to include a person who is adversely affected by the decree. A purchaser of mortgaged property, hence, may make an application under Order 9 Rule 13 of the Code 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.

(ii) 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.

(iii) Grounds
This rule requires an application by the defendant to set aside an ex-parte decree passed against him if there exist valid grounds. And there is two primary grounds has been outlined in the code itself. If the defendant satisfies the court that (a) the summons was not duly served; or (b) he was prevented by any sufficient cause from appearing when the suit was called out for hearing, the court will set aside the decree passed against him and appoint a day for proceeding with the suit.

(iv) 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.

• In the case of SUSHIL KUMAR V.GURPREET SINGH & Ors 2002 in Para 13, the court acknowledged that the summons had not been duly served to the defendant. It recognised that the defendant did not have sufficient notice or opportunity to be present in court when the matter was heard. This underscores the importance of proper service of summons to ensure that the defendant is aware of the proceedings and has the opportunity to participate. When service of summons is found to be inadequate, it may provide strong grounds for setting aside an ex-parte decree.
• Gauhati University v. Shri Nihralal Bhattacharjee (1995): This case deals with the limitation period for challenging an ex-parte decree when there are issues related to the service of summons. The Supreme Court held that the limitation period begins when the appellant becomes aware of the ex-parte decree. In situations where the defendant was not served properly or was unaware of the decree, they may have a valid basis for challenging the decree even if some time has passed since the decree was issued. This decision acknowledges the principle of fairness and ensures that defendants are not unfairly deprived of their rights due to improper service.

(v)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” or “good cause” must be liberally construed to enable the court to exercise powers ex debito justitiae. A party should not be deprived of hearing unless there has been something equivalent to misconduct or gross negligence on his part. Necessary materials should be placed on record to show that the applicant was diligent and vigilant. Improper advice of 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 decree to be set aside, the Supreme Court will not interfere with such order. 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 so.

• G.P. Srivastava v. Shri R.K. Raizada & Ors. (2000): In this case, the court emphasised that to set aside an ex-parte order, it is crucial for the party seeking relief to establish a “sufficient cause” for their non-appearance on the fixed date. If the party fails to demonstrate a valid and legitimate reason for their absence, the court may proceed with the ex-parte proceedings. Further the court stated that 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 judgement translates to as follow.“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.”  
• New Bank of India v. M/S. Marvels (India) (2001): This case reiterates the importance of presenting a “sufficient cause” for non-appearance. If the appellant is unable to provide a compelling reason and is found negligent in presenting their case, the court may not set aside the ex-parte decree. This underscores the need for the defendant to act diligently in asserting their rights.The judgement translates to as follow
  “After all ‘sufficient cause’ is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non-appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen. In the instant case, no doubt applicants’ had engaged lawyer who did not appear. However, the reason for non-appearance is not discernible and it cannot be said that he neglected or failed to appear in the case or there was no justification on the part of the layer not to appear. It also cannot be said that the applicants had done all what was required of them to ensure that their counsel would represent them on all the necessary hearings. The applicants have also failed to show that they were diligent in their pursuit or acted bonafide.” (Vide Para 10)
• Parimal v. Veena @ Bharti (2011): In this case, the Supreme Court clarified that “sufficient cause” means that the defendant did not act negligently and genuinely intended to be present when the case was scheduled for a hearing. The defendant is expected to use their best efforts to be present in court. This judgment reinforces the idea that setting aside an ex-parte order is contingent on the defendant’s diligence and good faith.

(VI) Affidavits and Counter Affidavits:
Both parties involved in the dispute usually file affidavits that outline their respective positions. The applicant (the party seeking to set aside the ex-parte order) provides an affidavit explaining the grounds for setting aside the order, while the other party (the respondent) can file a counter-affidavit contesting the claims made in the application.

(Vii) 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 Constitution. But ground realities of life also cannot be ignored. In Municipal Corpn. Of Ahmedabad V. Manish Enterprises Ltd. 1992 the Gujarat HC held that “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 vertically till at last it gravitates towards a conclusion, unmindful and oblivious of urgency and emergency.’’

(Viii) Power and duty of court
When 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 out for hearing. If the court finds that there was sufficient cause for non-appearance, it is bound to be set aside the decree. Conversely, if “sufficient cause” is not shown, ex parte decree cannot be set aside. “This right and this duty is a sine qua non of judicial procedure. An order setting aside ex parte decree is judicial, it must be supported by reason.

(IX) Test
The test which should be applied is 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.

(X) Irregularity in service of summons: Effect
The second proviso, as added by the Amendment Act of 1976, however, lays down that the court shall not set aside an ex parte decree merely on 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.

(Xi) Imposition of conditions
While setting aside ex parte decree, court has wide discretion to impose appropriate conditions on the defendant.

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.

(Xii) 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.

(Xiii) 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 default of the appearance or circumstances have been changed, a second application would be maintainable. Successive applications are maintainable only if circumstances have changed, not otherwise. The same principle was also upheld in the case of Arjun Singh V. Mohindra Kumar AIR 1964 SC 993, referring to the particular facts of the case the Supreme Court held that the civil judge had no jurisdiction to entertain the first application for setting aside the ex parte order. However, the second application under order Order 9 Rule13 was competent and had to be heard on merits without reference to the findings contained in the previous order. The court further held that an application under Order 9 Rule 13 is maintainable even if a previous application on the same had been already dismissed, provided the party can show sufficient cause for his non-appearance at the hearing when the decree was passed .Hence the court allowed the appeal and remanded the application filed by the appellant under Order 9 Rule 13 to the trial judge for disposal on the merits in accordance with law.

The Court stated:
“Sufficient cause is an expression which has been used in a large number of statutes. The meaning of the word ‘sufficient’ is ‘adequate’ or ‘enough’, inasmuch as may be necessary to answer the purpose intended. Therefore, the word ‘sufficient’ embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man.” 

(Xiv) Execution of decree: Effect 
The fact that an ex parte decree has been executed does not disentitle the defendant from applying under Rule 13 to get it set aside. If the decree is set aside restitution can be ordered.

(Xv) Extent of setting aside ex parte decree
A peculiar situation, however, arises where 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 an application to set it aside is made by one or more of the defendants against whom a decree is passed ex parte. As a general rule, the court will set aside the decree only against such defendant or defendants who had made an application.

(Xvi) Restriction on Appeals: 
The provision also includes a restriction that states that no appeal shall be allowed under this rule to set aside the ex-parte decree if an appeal against the ex-parte decree filed pursuant to this rule has been dismissed for any reason other than the appellant’s voluntary withdrawal of the appeal.

WHAT IS CONDONATION OF DELAY?

Condonation of delay is a discretionary remedy exercised by courts wherein, upon an application made by a party who wishes to have an appeal or application admitted after the prescribed period, the court may condone (overlook) the delay if the party provides a “sufficient cause” that hindered them from filing the appeal or application on time.

Section 5 of the Limitation Act, 1963 enunciates the principle of Condonation of delay. 

It states:
“Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.’’

The Act has furnished by way of Instances some sufficient cause according to it. If the appellant or the applicant was misled by a) any order, b) practice or c) judgment of the High Court either in asserting or computing the period of limitation, that are considered to be sufficient cause, but the same is not exhaustive. The following circumstances are also considered to be sufficient cause by different judicial decisions. Such as:

1)Bonafide mistake committed by the lawyer
2)Illness of a serious nature.
3)Internal disturbances like curfew, strike which paralyses the normal life.
4)Obstruction in communication like break down of vehicle.
5)Natural calamities which disrupt normal life and communication.
6)Confinement of party in jail.
7)Prosecuting in good faith some other proceeding in a wrong court.
8)Mistake of counsel
9)Wrong proceeding taken in good faith.
10)Proceeding in wrong court through bona fide mistake.
11)Amendment of decree
12)Defective Vakalatnama
13)Inability to get stamp.
14)Deliberate fraud of counsel’s clerk.
15)Mistake of court.
16)Old age, Minority, Illiteracy of the party
17)Where serious questions of laws require adjudication, the liberal view need to be taken and delay ought to be condoned as held in Division manager vs. Munnu Barrick (2005) 2 SCC 237.

• In the case of G. Ramegowda V. Land Acquisition Officer (AIR 1988 SC 897) Honourable SC held that the term “Sufficient Cause has to be construed liberally so as to advance the cause of justice and not the cause of technicalities. The court is to make a justice oriented approach and decide the case on its merits.
• In Manohar Joshi V. Nitin Bhaurao Patil (1996) SCC 169 Court observed that the proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the u/s 5. The courts have discretion to admit or refuse to admit the proceeding, even if sufficient cause is shown, as is made clear by its words “may be admitted used in the section. The extension of time is thus a matter of concession to the applicant and cannot be claimed by him as a matter of absolute right. However, the litigant has a right to wait till the last day of limitation. 
• In State of West Bengal V. The administrator, Howrah Municipality AIR 1972 SC 749 Court analysed that the expression “sufficient cause” is adequately elastic to enable the courts to apply the law in a meaningful manner which serves the ends of justice. A liberal approach is adopted in principle as it is realized that

(1) Refusing to condone delay can result in meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 

(2) “Everyday’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense manner. Mathematical accuracy is not justified.

(3) When substantial Justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 
(4) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant doesn’t stand benefit by resorting to delay. In fact he runs a serious risk.