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Order 9 Rule 13 of C.P.C.

(Querist) 16 October 2008 This query is : Resolved 
Respected Seniors,

In a suit basing on the promissory note after service of summons the defendant filed Vakalat through his Counsel and filed his written statement. Later in the trial stage the PW-1 filed his cheif affidavit, but the Defendant not prefered to cross examine him. After 4 adjournments Court has closed the evidence of the plaintiff. In all the 4 adjournments the PW-1 present. Later defendant not adduced any evidence on his behalf. Finally Court closed the evidence of the Defendant and also posted for judgement. Subsequently suit was decreed in favour of the Plaintiff. In the said decree and judgement the Court not used to the word " Set Ex parte".

Within 30 days from the date of the decree the Defendant filed a petition Under Order 9 Rule 13 of C.P.C. to set aside the said decree and the said petition was posted for Counter.

In the above circumstances the said petition is maintainable or not. Please advice me to file a counter to the said petition. Please refer citations if any in this aspect.

Thanking You Sir.
Srinivas.B.S.S.T (Expert) 16 October 2008
The Court has not set the Defendant exparte but has passed a decree as per Order 17 rule 2 of CPC. However it was held that unless there is evidence, part or substantial, on behalf of Defendants, order 17 rule 2 explanation doesnot apply and that the proper provision that is applicable to such a case is order 9 rule 13 C.P.C

1983 (1) ALT 77 (NRC) (DB) and 1996 (4) ALT 129.

Hope this citation will be helpful for you. Regards. Srinivas BSST.
G. ARAVINTHAN (Expert) 16 October 2008
Since there given a chance for the defendant to cross examine the plaintiff and also given time for producing his evidence. Hence the order made is purely made based on merits. Sufficient time was given for the defendant to prove his case and finally that was not an ex-parte order. Hence this petition is not maintainable.

Please made the counter as dates and event format and give a detailed opposition
anonymus (Expert) 17 October 2008
S. Mr. Srinivas is correct. Unless there is substantial evidence is let in by the party who is absent, judgement cannot be pronounced on merits. It has to be treated only as an exparte decree. But any how u can contest the or9 r13 petition based on the facts and the oppertunities sufficiently given to the defendant.


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