How to Set Aside Ex-Parte Orders and Decrees

Ex-Parte Proceedings, Procedure to Set Aside Ex-Parte Orders and Decree
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INDEX
1. Introduction
2. General definition and provisions
3. Appearance and non appearance of the parties
4. Setting aside decrees ex parte
5. Conclusion
6. Bibliography

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CHAPTER 1
INTRODUCTION
When law is being applied or going to be applied, the principles of natural justice and other
principles are very important. The legal maxim Ubi Jus Ibi Remedium rightly lays down the
foundations of legal systems in every human society.1 It means that whenever any wrong is
done to a person, he has a right to approach the court of law and seek remedy for the wrong
which has been caused to him. Literally means that there is no wrong without a remedy.
There is always a legally pattern for getting these remedies for the wrongs caused.2
The provisions of the Code of Civil Procedure are based on a general principle that, as far as
possible, no proceeding in a court of law should be conducted to the detriment of any party in
his absence. Order 9 of the Code enacts the law with regard to the appearance of the parties to
the suit and the consequences of their non-appearance. It also provides a remedy for setting
aside an order of dismissal of the suit as also setting aside of an ex parte decree passed
against the defendant.
In a civil suit, the plaintiff petitions the court to sanction a right he wishes to assert against
another person, the defendant. These terms, plaintiff and defendant, accurately describe the
roles of both parties involved in a civil suit: one person files a claim and the other presents a
defence.
When a suit is filed in the court then a Suit No. is given to that suit after the registration of the
suit and the summons are sent to the other party who is known as defendant in that particular
case.
1.1 Limitation of the Study
The basic problem was to get more case studies and to do empirical research on the topic
because of the lack of time and resources. Due to these difficulties the sample size has been
limited.
1 Archibald Brown,“A New Law Dictionary and Institution of the Whole Law”, FirstEdition,The Lawbook
Exchange Ltd., London, 2005, p.551.
2 Herbert Broom, “A Selection of Legal Maxims”, FirstEdition,The Maxwell Publication,London, 1845,p.91.

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1.2 Research Methodology
It is a field based or empirical research, though the study has been limited. The secondary
sources of data collection such as the books and various journals have been used with the
help of the access to the library and the software. The database which is used in this particular
project is from the library, Google books, Westlaw international and Westlaw India.
In the upcoming chapters we will deal with the general definitions and provisions, appearance
and non appearance of the parties, ex-parte proceedings, setting aside of ex-parte decree.

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CHAPTER 2
GENERAL DEFINITIONS AND PROVISIONS
In this chapter we will discuss the general definitions and provisions which are necessary to
explain for our project:
2.1 Suit
Section 26 to 35- B and Orders 1 to 20 of the (First) Schedule deals with the procedure
relating to suits. Orders 1 and 2 provide for the parties to suit and frame of the suit.
The term “suit” has not been defined in the Code. According to the dictionary meaning “suit”
is the generic term of comprehensive signification referring to any proceedings by one person
or persons against another or others in a court of law wherein the plaintiff pursues the remedy
which the law affords him for the redress of any injury or the enforcement of a right, whether
at law or in equity.3 Ordinary, a suit is a civil proceeding instituted by the presentation of the
plaint.4
In the case of Krishnappa v. Shivappa5 it was decided by the court that for an institution of a
suit the following things are necessary:
a. Opposing parties;
b. Subject matter in dispute;
c. Cause of action;
d. Relief.
Section 26 and Order 4 provides for institution of suit:
2.1.1 Presentation of Plaint
Every suit must be institute by the presentation of the plaint in duplicate or in such other
manner as may be prescribed by the code6 by the plaintiff himself or by his advocate or by his
3 “Chambers’ 20th
Century Dictionary”, (1983), p. 1254; “Black’s Law Dictionary” (1990), p. 1434.
4 Hansraj v. Dehradun Mussoorie ElectronisTramways Co. Ltd., AIR 1933 PC 63.
5 Krishnappa v. Shivappa, (1909) 31 Bom 393.
6 Order 4, Rule 1, Civil Procedure Code, 1908.

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recognized agent or by any person duly authorized by him.7 Therefore, generally, a
proceeding which does not commence with a plaint is not a suit.
The expression “plaint” has not been defined in the code but it means “a private memorial
tendered to a court in which the person sets forth his cause of action: the exhibition of action
in writing”.8
2.1.2Time and Place of Presentation
A plaint must be presented to the court or such officer as it appoints in that behalf.9
Generally, presentation of plaint must be on a working day and during the office hours.
However, there is no rule that such presentation must be made either at particular place or
particular time. A judge, therefore, may accept a plaint at his residence or at any other place
even after office hour, through he is not bound to accept it but if not too inconvenient, the
judge must accept the plaint if it is the last day of the limitation.10 Thereafter, the particulars
of suit will be entered by the court in a book kept for the said purpose, called the register of
Civil suit.11 After the presentation, the plaint will be securitized by the Stamp Reporter. If
there are defects, the plaintiff or his advocates will remove them. Therefore the suit will be
numbered.12
2.2 Pleadings
Order 6 deals with pleadings in general. Rule 1 defines pleading, while Rule 2 lays down the
fundamental principles of pleadings. Rule 3 to 13 require the parties to supply necessary
particulars. Rule 14 and 15 provide for signing and verification of pleadings. Rule 16
empowers a court to strike out unnecessary pleadings. Rules 17 and 18 contain relating to
amendment of pleadings.
2.2.1 Definition
“Pleading” is defined as plaint or written statement.13 According to Mogha: “Pleadings are
statements in writing drawn up and filed by each party to a case, stating what his contentions
7Ram Gopal v. Ram Sarup, AIR 1934 Bom 91.
8Assan v. Pathumma, (1899) 22 Mad 494 (502).
9 Order 4, Rule 1(1), Civil Procedure Code, 1908.
10Balarammi Reddy v. Venkatasubbaiah, AIR 1965 AP 386 (387-88).
12 Ram Gopal v. Ram Sarup, AIR 1934 Bom 91.

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will be at the trial and giving all such details as his opponent needs to know in order to
prepare his case in answer”
A plaintiffs’ pleading is his plaint, a statement of claim in which the plaintiff sets out his
cause of action with all necessary particulars, and a defendants’ pleading is his written
statement, a defense in which the defendant deals with every material fact alleged by the
plaintiff in the plaint and also states any new facts which are in his favour, adding such legal
objections as he wishes to take to the claim. Where the defendant, in his written statement,
pleads a set-off, the plaintiff may file his written statement thereto. Again in some cases, the
defendant after filing his written statement may file an additional written statement with the
leave of the court.
2.2.2 Object
The whole object of the pleadings is to bring parties to definite issues and to diminish
expenses and delay and to prevent surprise at the hearing. A party is entitled to know the case
of his opponent so that he can meet it.
In other words, the sole object of pleadings is to ascertain the real disputes between the
parties, to narrow down the area of conflict and to see where the two sides differ, to
precludeone party from taking the other by surprise and to prevent miscarriage of justice.14
In the leading case of Thorp v. Holdsworth15, Jessel, M.R. staed:
“The whole object of pleading is to bring parties to an issue, and the meaning of the rules
(relating to pleadings) was to prevent the issue being enlarged, which would prevent either
party from knowing when the cause came on the trial, what the real point to be discussed and
decided was.”16
In Gnaesh Trading Co. v. Moji Ram,17 the Supreme Court observed: “Provision relating to
pleading in civil cases are meant to give to each side intimation of the case of the other.”18
In Virendra v. Vinayak19, the Apex court stated: “the object of the rule is twofold. First is to
afford the other side intimation regarding the particular facts of his case so that they may be
14Thorp v. Holdsworth, (1888)3Ch D 637.
15 Ibid at p. 638.
16Ibid at p. 639.
17 Gnaesh Trading Co. v. Moji Ram,(1978) 2 SCC 91.
18Ibid at p. 93.
19 Virendra v. Vinayak, (1999) 1 SCC 47: AIR 1999 SC 162.

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met by the other side. Second is to enable the court to determine the court that what is the
issue between the parties.”
2.3 Summon
When the plaintiff files a suit, the defendant has to be informed that the suit has been filed
against him, and that he is required to appear in the court to defend it. The intimation that is
sent to the defendant by the court is technically known as ‘summon’. Though the expression
is not defined in the Code, according to the dictionary meaning:20 “A summon is a document
issued from the office of a court of justice, calling upon the person to whom it is directed to
appear before the Judge or officer of the court for the certain purpose.”
Every summon must be signed by the Judge or such officer appointed by him and shall be
sealed with the seal of the court,21 and must be accompanied by the Plaint.22
2.4 Ex-Parte
Ex parte is a Latin legal term meaning "from (by or for) one party". An ex parte decision is
one decided by a judge without requiring all of the parties to the controversy to be present.
In Australian, Canadian, U.K., U.S. legal doctrines, ex parte means a legal proceeding
brought by one person in the absence of and without representation or notification of other
parties. It is also used more loosely to refer to improper unilateral contacts with a court,
arbitrator or represented party without notice to the other party or counsel for that party.
2.5 Decree
The adjudications of a court of law may be divided into two classes: (i) decrees, and (ii)
orders. Section 2(2) of the Code defines the term ‘decree’ in the following words:
‘Decree’ means the formal expression of an adjudication which, so far as regards the courts
expressing it, conclusively determines the right of the party with regards to all or any of the matters in
controversy in the suit and may be either preliminary or final. It shall be deemed to include the
rejection of a plaint and the determination of any question within Section 144, but shall not include–
a) Any adjudication from which an appeal lies as an appeal from an order, or
b) Any order for dismissal for default.
20Earl Jowitt, “TheDictionary of English Law”, (1972), p. 1700.
22Order 5, Rule 2, Civil Procedure Code, 1908.

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Explanation– A decree is preliminary when further proceedings have to be taken before the
suit can be completely disposed off. It is final when such adjudication completely disposes
off the suit. It may be partly preliminary and partly final.23
2.5.1 Essential Elements of the Decree
In order that a decision of a court may be a ‘decree’, the following elements must be present:
i. There must be adjudication.
ii. Such adjudication must be done in a suit.
iii. It must have determined the rights of the parties with regards to all or any of the
matters in controversy in the suit.
iv. Such determination must be of conclusive nature; and
v. There must be a formal expression of such adjudication.
2.6 Order
‘Order’ means the formal expression of any decision of a civil court, which is not a decree.
Thus, the adjudication of a court, which is not a decree, is an order. As a general rule, an
order of a court of law is founded on objective considerations and as such the judicial order
must contain a discussion of the question at issue and the reasons which prevail with the court
led to the passing of the order.24
2.7 Distinction between Decree and Order
1. Decree ends the court case whereas an order does not.
2. The content of a court decree usually follows a standard format that involves the
conditions to be carried out and many others while a court order can have a simple
small content as short as a mere date depending on the type of case.
3. Because of the nature of the document, decree is almost always put into writing while
orders can be verbally proclaimed by the judge.
23 Section 2(2),Civil Procedure Code, 1908.
24 Section 2(14),Civil Procedure Code, 1908.

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CHAPTER 3
APPEARANCE AND NON APPEARANCE OF THE PARTIES
Before dealing with the appearance and non appearance of the parties it is necessary to deal
with the basic meaning and the subject of the appearance which is as follows:
3.1 Meaning of Appearance
Appearance means coming into court by a party to a suit, either in person or through
an attorney, whether as plaintiff or defendant can be said to be the definition of ‘appearance’.
It is also the formal proceeding by which a defendant submits to the jurisdiction of the court.
It is a process whereby the party voluntarily submits to a court's jurisdiction. Although an
appearance can be made by the plaintiff (the one who has sued) or the defendant (the one
being sued), the term most often refers to the action of the defendant.
3.2 Subject of Appearance
The subject of appearance is closely related to the subject of personal jurisdiction, which is
the court's authority over an individual party. An appearance is some overt act by which the
defendant comes before the court to either submit to or challenge the court's jurisdiction.25
3.3 Whether the Appearance by the Party itself is Necessary
Any party can appear either in person or through an attorney or a duly authorized
representative; the party need not be physically present. In most instances, an attorney makes
the appearance. An appearance can also be made by filing a notice of appearance with
the clerk of the court and the plaintiff, which states that the defendant will either submit to the
authority of the court or challenge its jurisdiction. In a lawsuit involving multiple defendants,
an appearance by one is not an appearance for the others. Valid service of process is not
required before an appearance can be made.
Parties can appear in person or by an advocate who should file a vakalatnama giving the
name of the Bar Council in which he is enrolled, his residential address, telephone number if
any, and his address for service of notices. A Senior Advocate is entitled to appear with
another advocate who has filed a vakalatnama.
25
M.P. Jain, “The Code Of Civil Procedure”, 2nd Edition, Wadhwa Publications, Nagpur, 2008, p. 43.

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The Bar Council or its Disciplinary Committee may at any stage of a proceeding appoint an
advocate to appear as Amicus Curiae. Such advocate may be paid such fee as the Council or
the Committee may decide. Excepting when the Committee has otherwise directed, service
on the advocate shall be deemed to be sufficient service on the parties concerned, even if
copies of the notices are in addition sent to the parties, whether the parties have or have not
been served. Unless otherwise indicated, where more than one Advocate appears for the same
party, it is sufficient to serve the notice on any of them.
A defendant who fails to appear in court pursuant to a service of process might have a default
judgment entered against her or him and be held in contempt of court. A failure to appear
does not, however, result in a waiver of objections to the court's jurisdiction.
If a defendant fails to make an appearance in the time allotted by statute or court rules, he or
she may lose certain rights. But if the circumstances warrant it, a court may extend the time
of appearance.
3.4 Appearance of Parties
Order 9 Rule 1 requires the parties to the suit to attend the court in person or by their pleaders
on the day fixed in the summons for the defendants to appear.26 Rule 12 provides that where a
plaintiff or a defendant, who has been ordered to appear in person, does not appear in person
or show sufficient cause for non-appearance, the court may dismiss the suit, if he is plaintiff,
or proceed ex-parte if he is the defendant.27
3.5 Where Neither Party Appear
The following is the procedure regarding appearance and non-appearance of parties
according to the Code of Civil Procedure, 1908, where neither party appears. Where neither
the plaintiff nor the defendant appears when the suit is called out for hearing, the court may
dismiss it.28 The dismissal of the suit under Rule 3, however does not bar a fresh suit in
respect of the same cause of action. The plaintiff may also apply for an order to set aside the
dismissal. And if the court is satisfied that there was sufficient cause for his non-appearance,

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it shall pass an order setting aside the dismissal of the suit and shall fix day for proceeding
with the suit.29
3.6 Where only Plaintiff Appears
Where the plaintiff appears and the defendant does not appear, the plaintiff has to prove
service of summons on the defendant.30 If the service of summons is proved, the court may
proceed ex parte against the defendant and may pass a decree in favour of the plaintiff, if the
plaintiff proves his case. This provision, however, is confined to first hearing and does not
per se apply to subsequent hearings.31
Where there are two or more plaintiffs and one or more of them appear and others do not
appear, the court may permit the suit to proceed as if all the plaintiffs had appeared, or make
such order as it thinks fit.32
3.7 Where only Defendant Appears
Rules 7-11 of the Code elaborate on this case. Where the defendant appears and the plaintiff
does not appear, and the defendant does not admit the plaintiff’s claim, wholly or partly, the
court shall pass an order dismissing the suit. But if the defendant admits the plaintiff’s claim
as a whole or part thereof, the court will pass a decree against the defendant upon such
admission and dismiss the suit for the rest of the claim.
Rule 8 will apply to a case where there is only one plaintiff and he does not remain present or
there are two or more plaintiffs and all of them remain absent. Where there are more
plaintiffs than one, and one more of them appear, Rule 10 will apply.
It is, however a serious matter to dismiss the plaintiff’s suit without hearing him and that
course ought not to be adopted unless the court is really satisfied that justice so requires. But
the Court has no power to dismiss the suit where the plaintiff does not appear owing to death.
Such an order is a nullity in as much as this rule applies to a defaulter and not a dead man.33
29Banerjee, “Commentary on the Code of Civil Procedure, 1908”, Vol. 1, Dwivedi &Company, Allahabad, Reprint
2009, p. 453.
31 Sangram Singh v. Election Tribunal, AIR 1955 SC 425.
33 Raja Debi Baksh v. Habib Shah, (1912-1913) 40 IA 151 (PC).

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Rule 9 precludes the plaintiff thereafter from filing a fresh suit on the same cause of action.
He may however, apply for an order to set aside the order of dismissal. And if the court is
satisfied that there was sufficient cause for his non-appearance the court may set aside the
order of dismissal and fix a day for proceeding with the suit.34
In deciding whether a suit dismissed for default be restored, what has really to be considered
is whether the plaintiff was really trying to appear on the day fixed. If he honestly intended to
appear though in a stupid way, he should not be deprived of hearing.35 If sufficient cause is
shown by the plaintiff for his non-appearance, re-opening is mandatory, but when sufficient
cause is not shown, it is directory.36
Whether the cause is sufficient or not depends upon the facts and circumstances of the case
and liberal and generous construction should be adopted to advance the justice and
restoration should not ordinarily be denied. Where a party against whom an order is made
appears on the same day and prays for recalling of order, normally, the prayer should be
granted by the court.
In Chhotalal v. Ambalal Hargovan37, the High Court of Bombay observed that when a party
arrives late and finds that his suit or application is dismissed, he is entitled to have his suit or
application restored on payment of costs.
In a later decision of Currimbhai v. N.H.Moos38, the same High Court held that it would be
difficult to agree with Chhotalal in principle as a proposition of law. “If such a rigid law is
laid down, it might mean this that the defendant could successively prevent his suit from
being heard forever. All that he would have to do would be to appear late on successive dates,
and allowed the suit to be heard ex parte and then to apply at the end of each day to have the
suit restored for hearing. That obviously is a course which no court would allow.”
A civil suit was dismissed for want of prosecution. The suit was to be restored under Rule 35
of Chapter X of the Original Side Rules and under Order IX Rules 4 and 9 of the Code of
Civil Procedure 1908. One of the legal representatives of the original plaintiff died, pending
the application for restoration of the suit that stood dismissed. Whether an application for
restoration of the suit dismissed under Rule 35 of Chapter X of the Original Side Rules was
34 Lachi Tewari v. Director of Land Records, AIR 1984 SC 1481.
35 Motichand v. Ant Ram, AIR 1952 Bho 33.
36 P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar, AIR 1936 Rang 335.
37 Chhotalal v. Ambalal Hargovan ,AIR1925 Bom 423 at p. 426.
38 Currimbhai v. N.H.Moos , AIR 1929 Bom 250 at p. 251.

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maintainable and if it was maintainable, whether an application could be entertained only if it
was filed before the order dismissing the suit is drawn up, completed and filed? It was held
by the Apex Court that the plaintiff could apply either under Rule 4 or under Rule 9 of Order
IX of the Code for restoration of the suit, on showing sufficient cause for non-appearance. In
case appeal was allowed and the suit restored, it would result in an order inconsistent with the
order dismissing the suit as against one of the legal representatives of the deceased original
plaintiff, which has become final. Therefore, no relief could be granted. The Impugned order
of High Court was upheld. Appeal was dismissed.39
In the case of New India Assurance Co. Ltd. v. R. Srinivasan, 40 the questions raised were on
the basis of Order 9 Rules 2, 3 and 9 (1) of CPC, 1908 and Consumer Protection Act. The
matter was regarding maintenance of second complaint on dismissal of first being default.
Rule of prohibition as to filing fresh suit on dismissal of first complaint which is contained in
Order 9 Rule 9 is not applicable to proceeding under Consumer Protection Act. It was also
held that the abuse of process warrants application of principles of Order 9 Rule 9. Insurance
claim cannot be defeated on ground of technicality of rules of procedure. The Apex Court
upheld the order passed by National Commission.
3.8 Where Summons is not Served
It is a fundamental rule of the law of procedure that a party must have a fair and reasonable
opportunity to represent his case. And for that purpose, he must have a notice of the legal
proceedings initiated against him. The service of summons on the defendant is, therefore, a
condition precedent to a fair trial. If the summons is not served on the defendant or it does not
give him sufficient time to represent his case effectively, no decree can be passed against
him.
Rule 2 of Order 9 enacts that the suit may be dismissed where the summons is not served on
the plaintiff’s failure to pay costs for service of summons to defendant or to present copies of
the plaint. No such order, whoever can be passed in spite of such failure by the plaintiff if the
defendant appears in person or by his authorized agent on the day fixed for him to appear.
The plaintiff may file a fresh suit even after the dismissal of the suit under Rule 2 in respect
of the same cause of action or may apply for an order to set aside such dismissal. And if the
39 Firdous Omer (D) by LRs. and Ors. v. Bankim Chandra Daw (D) by LRs. and Ors., AIR 2006 SC 2759.
40 New India Assurance Co. Ltd. v. R. Srinivasan ,AIR 2000 SC 941.

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court is satisfied that there was sufficient cause for such failure, the court shall set aside such
order of dismissal and shall fix a day for proceeding with the trial.41
If the plaintiff fails to apply for a fresh summons for seven days after the summons in the
defendant or one of the defendants (where there are two or more defendants) is returned
unserved, the court will dismiss the suit as against the defendant or such defendants. But if
within that period, the plaintiff satisfies the court that (i) he has failed, in spite of his best
efforts to discover the residence of the defendant who has not been served; or (ii) such
defendant is avoiding the service of process; or (iii) there is any other sufficient cause for
extension of time, the court may extend the time for such period as it thinks fit. If the suit of
the plaintiff is dismissed by the court within the period of limitation, he can file a fresh suit
also.42
Where it is not proved that the summons is duly served on the defendant, the court will direct
a fresh summons to be issued and served on the defendant.43 Where it is proved that the
summons is duly served on the defendant but there was not 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 a future day and give notice of such day to the defendant.44 Where the summons is
not duly served or id not served in sufficient time due to the plaintiff’s default, the court shall
order the plaintiff to pay the costs occasioned by such postponement.45
43 Order 9, Rule 6(1) (b), Civil Procedure Code,1908.
44 Order 9, Rule 6(1) (c), Civil Procedure Code, 1908.

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CHAPTER 4
SETTING ASIDE DECREES EX PARTE
In this chapter we will discuss the meaning of ex-parte decree, remedies for defendant against
whom an ex-parte decree is passed and the procedure to set aside the ex-parte decree.
4.1 Meaning of Ex-Parte Decree
An ex parte decree is a decree passed in the absence of the defendant (in absenti). Where the
plaintiff appears and the defendant does not appear when the suit is called out for hearing and
if the defendant is duly served, the court may hear the suit ex parte and pass a decree against
him. Such a decree is neither null and void nor inoperative but is merely voidable and unless
and until it is annulled on legal and valid grounds, it is proper, lawful, operative and
enforceable like a bi parte decree and it has all the force of a valid decree.
4.2 Remedies for Defendant against whom the Ex-Parte Decree has been Passed
The defendant, against whom an ex parte decree has been passed, has the following remedies
available to him:
(1) Apply to the court by which such decree is passed to set it aside: Order 9 Rule 13; or
(2) Prefer an appeal against such decree: Section 96(2) (or to file a revision under Section
115 where no appeal lies);
(3) Apply for review: Order 47 Rule 1; or
(4) File a suit on the ground of fraud.46
The above remedies are concurrent and they can be prosecuted simultaneously or
concurrently.47 “Where two proceedings or two remedies are provided by a statute, one of
them must not be taken as operating in derogation of the other.”48
In Ajudhia Prasad v. Balmukund, it was also ruled that “where two proceedings or two
remedies are provided by a statute, one of them should not be taken as operating in
derogation of the other.”49
46 Rupchand Gupta v. Raghuvanshi(P) Ltd., AIR 1964 SC 1889.
47 Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787.
48 Ajudhia Prasad v. Balmukund, (1886) 8 All 354 at p. 361 (FB).
49 Ibid, atp. 362.

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In Sunderlal v. Nandramdas50, it was observed that though the Act does not give any power
of dismissal, it is axiomatic that no court or tribunal is supposed to continue a proceeding
before it when the party who has moved it has not appeared nor cared to remain present. The
dismissal, therefore, is an inherent power which every tribunal possesses. This was approved
in Dr. P. Nalla Thampy v. Shankar.51 In New India Assurance v. Srinivasan,52 it was held that
every court or judicial body or authority, which has a duty to decide a lis between two parties,
inherently possesses the power to dismiss a case in default. Where a case is called up for
hearing and the party is not present, the court or the judicial or quasi judicial body is under no
obligation to keep the matter pending before it or to pursue the matter on behalf of the
complainant who had instituted the proceedings. That is not the function of the court or, for
that matter of a judicial or quasi judicial body. In the absence of the complainant, therefore,
the court will be will within its jurisdiction to dismiss the complaint for non prosecution.
The case of Martin Burn Ltd. v. R.N. Banerjee,53 discussed the application filed before the
Labour Appellate Tribunal for the discharge of employee - It further questioned whether the
Tribunal had the jurisdiction to set aside ex parte order and restore application under the
Code of Civil Procedure, 1908 - The Court ruled that the said Tribunal had jurisdiction to set
aside ex parte order and restore the application to its file.
4.3 Setting Aside Decree Ex-Parte Against Defendant
Order 9 Rule 13 states that in any case in which 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 the court that the 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 as against him upon such terms as to costs,
payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with
the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such
defendant only it may be set aside as against all or any of the other defendants also.
50 Sunderlal v. Nandramdas,AIR 1958 MP 260.
51 Dr. P. Nalla Thampy v. Shankar,1984 (Supp) SCC 631.
52 New India Assurance v. Srinivasan ,(2000) 3 SCC 242.
53Martin Burn Ltd. v. R.N. Banerjee, AIR 1958 SC 79.

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Provided further, that not court shall set aside a decree passed ex-parte merely on the ground
that there has been an irregularity in the service of summons, if it is satisfied that the
defendant had the notice of the date of hearing and sufficient time to appear and answer the
plaintiff’s claim.54
Explanation–where there has been an appeal against a decree passed ex parte under this rule,
and the appeal has been disposed of on any ground other than the ground that the appellant
has withdrawn the appeal, no application shall lie under that ex parte decree.55
4.3.1Amendment 1976
(i) A second proviso, which has been inserted following amendments in many High
Courts, provides that an ex parte decree will not be set aside merely on the ground of
irregularity in the service of summons.
(ii) An explanation has been inserted to settle conflicting decisions in the matter by
adopting the view that an ex parte decree can not be set aside under this rule when an
appeal against such decree has been disposed of on any ground other than the ground
that the appellant had withdrawn the appeal.
4.3.2 Affidavit Evidence
Application under Rule 13 being an interlocutory application. Order 19 Rule 2 applies and
evidence upon the application may be given in affidavit.56 An advocate on record can file
affidavit and application under Order 9 Rule 13 for setting aside ex parte decree/order,
especially when the steps taken by advocate is not prejudicial to the right of his client. The
practice of advocate filing his own affidavit in support of restoration application is totally
wrong and illegal.57
4.3.3 Who may Apply?
The defendant against whom ex parte decree has been passed may apply for setting it
aside. A purchaser of mortgaged property hence may make an application under Order 9
54Added byCPC (Amendment) Act 104 of 1976,Section 59.
55Inserted by CPC (Amendment) Act 104 of 1976, Section 59.
56 Subbarayudu v. Rangiah, (1961) 1 And WR 2(2).
57 Pasupulleti Subbarao v. Nandavarapu, AIR 2003 AP 445.

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Rule 13 of the Code.58 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.59
The expression “defendant” is wide enough to include a person who is adversely affected by
the decree.
4.3.4 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.
4.3.5 Grounds
This rule requires an application by the defendant to set aside an ex parte decree passed
against him if there are sufficient grounds for it. If the defendant satisfies the court that (i) the
summons was not duly served; or (ii) he was prevented by any sufficient cause from
appearing when the suit is called for hearing, the court will set aside the decree passed against
him and appoint a day for proceeding with the suit.
4.3.6 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.
4.3.7 Independent Suit
An independent suit is maintainable to set aside an ex parte decree on the ground of fraud or
collusion even after rejection of application under Rule13.60A suit will lie to set aside a
decree on the ground of fraudulent suppression of summons;61 but if the only fraud alleged is
the non-service of summons and the plaintiff had unsuccessfully applied under Order 9 Rule
58 Man Singh v. Dal Chand, AIR 1934 All 163.
59 (Matte) Narayanamurthi v. (Parankusam) Venkatayaa, AIR 1927 Mad 227.
60 Prannath v. Mahesh, 28 C 475 PC.
61 Abdul Majumdar v. Md. 24 C 605.

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13 no suit is maintainable under the principle of res judicata.62Where the fraud is not proved,
it cannot be set aside merely for non-service of summons. Only a separate suit on that ground
would be barred.63
4.3.8 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”
must be liberally construed to enable the court to exercise powers ex debito justitiae.64 A
party should not be deprived of hearing unless there has been something equivalent to
misconduct or gross negligence on his part. Necessary material should be placed on record to
show that the applicant was diligent and vigilant. Improper advice of the 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 to be set aside, the
Supreme Court will not interfere with such order.65 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 so66.
4.3.9 “Good Cause” and “Sufficient Cause”
There is no material difference between the two expressions, “good cause” and “sufficient
cause.”67 In the case of Lal Devi and Anr. v. Vaneeta Jain and Ors.68, Y executed an
agreement to sell property to X, Y failed to execute the sale deed despite payment of earnest
money, X filed a suit for specific performance. Matter came to be listed in the Court for
several days. The trial court passed ex parte decree as no one appeared from Y side to cross
examine the witness. Appeal was dismissed by the High Court. Hence, appeal was filed in the
Supreme Court. Evidence revealed that failure to appear before District Judge was on account
of their pre-occupation before High Court. Held, appellant cannot be made to suffer an ex
62 Narsing v. Rafiqan, 14 CWN 507.
63 Rajaram v. Kanhaya, 1950,p. 284.
64 State Bank of W.B. v. Howrah Municipality, (1972) 1 SCC 366.
65 Vijay Kumar v. Kamalabhai, (1995) 6 SCC 148.
66 Arunachala Iyer v. Subramaniah, AIR 1923 Mad 63.
67 Arjun Singh v. Mohindra Kumar, AOR 1964 SC 993.
68 Lal Devi and Anr. v. Vaneeta Jain and Ors ,AIR 2007 SC 1889.

20 | P a g e
parte decree particularly when he was not at fault having duly instructed his counsel to
appear before the Court of District Judge. Order of ex parte decree was set aside by the
Court.
Ratio Decidendi:
A person cannot be made to suffer an ex parte decree particularly when he was not at fault
having duly instructed his counsel to appear before Court.
4.3.10 Grounds: Whether exhaustive?
The language of the rule is plain, express and unambiguous and the grounds mentioned
therein are exhaustive69.
4.3.11Material Date
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 ‘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.”70
4.3.12 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 Constitution71.
But ground realities of life also cannot be ignored. “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
69 G.P.Srivastava v. R.K. Raizada, (2000)3 SCC 54.
70 Ibid, atp. 57.
71 Union of India v. Ram Charan, AIR 1964 SC 215.

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vertically till at last it gravitates towards a conclusion, unmindful and obvious of urgency and
emergency”.
4.3.13 Power and Duty of the Court
Where 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 for hearing. If the court finds that there was
sufficient cause for non-appearance, it is bound to be set aside the decree.
In Vijay Kumar Madan and Ors. v. R.N. Gupta Technical Education Society and Ors., 72 a
suit for eviction of tenant and recovery of rent was filed. Due to non- appearance of
defendants the trial court ordered suit to be proceeded ex-parte. Defendant moved application
to set aside the ex-parte order, which was allowed by court placing the defendants on terms
and directing to deposit monthly lease amount in court at the time of filing written statement.
The Court cannot exercise its power under Rule 7 Order 9 of CPC to put the
defendant/applicant to such terms as may have the effect of prejudging the controversy
involved in the suit and virtually decreeing the suit though ex-parte order has been set aside
or to put the parties on such terms as may be onerous. Costs should be so assessed as would
reasonably compensate the plaintiff for the loss of time and inconvenience caused by
relegating back the proceedings to an earlier stage. High Court's order to the extent of setting
aside the ex-parte proceedings and directing the expeditious trial of the suit was ruled to be
sustainable as it serves the ends of justice.
4.3.14 Test
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.73
4.3.15 Precedents
Cases are to be decided on the facts and circumstances of each case and not on the basis of
precedents74.
72 Vijay Kumar Madan and Ors. v. R.N. Gupta Technical Education Society and Ors.,AIR 2002 SC 2082.
73 UCO Bank v. Iyengar Consultancy Services (P) Ltd., 1994 Supp (2) SCC 399.
74 Salil Dutt v. T.M. &M.C. (P) Ltd., (1993) 2 SCC 185.

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4.3.16 Irregularity in Service of Summons: Effect
Both ‘illegality’ and ‘irregularity’ have to be satisfied for the court to set aside the matter.
The court shall not set aside an ex parte decree merely on the ground of irregularity in service
of summons.
4.3.17 Burden of Proof
The Burden of proof is on the defendant to prove that there was “sufficient cause” for non-
appearance.
4.3.18 Sufficient Cause: Illustrative Cases
The following causes have been held to be sufficient for the absence of the defendant;
(i) Bona fide mistake as to the date of hearing;
(ii) Late arrival of a train;
(iii) Sickness of counsel;
(iv) Fraud of the opposite party;
(v) Mistake of pleader in noting the wrong date in diary;
(vi) Negligence of next friend or guardian in case of minor plaintiff or defendant;
(vii) Death of relative of a party;
(viii) Imprisonment of party;
(ix) Sickness of advocates;
(x) No instructions pursis by lawyer, etc.
4.3.19 No Sufficient Cause: Illustrative Cases
The following causes on the other hand, have been held not to be sufficient for absence of the
defendant for setting aside an ex parte decree;
(i) Dilatory tactics;
(ii) Bald statement of noting wrong date in diary;
(iii) Negligence of party;
(iv) Counsel busy in other court;
(v) Suit of high valuation;
(vi) Absence of defendant after prayer for adjournment is refused;
(vii) Hardship of defendant;

23 | P a g e
(viii) Absence to get undue advantage;
(ix) Mere thinking that the case will not be called out;
(x) Not taking part in the proceedings, etc.
4.3.20 Limitation
An application for setting aside ex parte decree can be made within thirty days from the date
of decree75.
4.3.21 Notice to Opposite Party
In consonance with the principles of natural justice and fair play, the opposite party has to be
issued a notice before setting aside the ex parte decree and an opportunity must be given to
him of hearing.
4.3.22 Procedure
Application may be made by the defendant for setting aside the ex parte decree under Rule
13. In case of death of defendant, his legal representatives can also make such application. It
should be signed and verified by the party and not by his advocate.
4.3.23 “Upon Such Terms as the Court Thinks Fit”
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.76
4.3.24 Imposition of Conditions
While setting aside ex parte decree, court has wide discretion to impose appropriate
conditions on the defendant.
75 Article123, Limitation Act, 1963.
76 Dagri v. Kera Kachari., AIR 1976 Gau 16.

24 | P a g e
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 an appropriate case.77 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.78
4.3.25 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. As Rankin, L.J.79 stated, “I entirely dissent from the
view that, if no case is made out under that rule (Rule 13), it is open to the learned Judge to
enlarge the rule by talking about Section 151.”
4.3.26 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 the default of the appearance or the circumstances have been changed, a
second application would be maintainable.
The case questioned the application of principle of Res Judicata. It also questioned if ‘good
cause’ and ‘sufficient cause’ was different. It was held that there was no material difference
between the facts to be established for satisfying the two tests of ‘good cause’ under Order IX
rule 3 of the Code of Civil Procedure, 1908, for non appearance and ‘sufficient cause’ under
Order IX rule 13. The scope of the principle of Res Judicata is not confined to what is
contained in Section 11 but is of more general application. Res Judicata could be as much
applicable to different stages of the same suit as to findings on issues in different suits.80
77 V.K. Industries v. M.P.Electricity Board, (2002) 3 SCC 159.
78 Ibid, atp. 160.
79 K.B. Dutt v. Shamsuddin Shah, AIR 1930 Cal 488 atp. 489.
80 Arjun Singh v. Mohindra Kumar and Ors., AIR 1964 SC 993.

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4.3.27 Successive Applications
Successive applications wiil apply only when circumstances change, not otherwise.
4.3.28 Execution of Decree: Effect
The fact that an ex parte decree has been executed doesn’t disentitle the defendant from
applying under rule 13 to get it set aside. If the decree is set aside, restituition can be
ordered.81
4.3.29 Extended Setting Aside Ex Parte Decree
A particular situation, however, arises when 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 them but against some of the defendants it is passed ex parte and an application to set
it aside is made by one or more of the defendants against to whom a decree is passed ex parte.
As a general rule, the court will set aside the decree only against such defendant / defendants
who had made an application.
4.3.30 Effect of Setting Aside Ex Parte Decree
The effect of setting aside an ex parte decree is that the suit is restored, the court should
proceed to decide the suit as it stood before the decree. The trial should commence de novo
and the evidence that had been recorded in the ex parte proceeding shouldn’t be taken into
account.82
4.3.31 Hearing of Application Pending Appeal
Mere filing of an appeal in an appellant court against an ex parte decree doesn’t take away
the jurisdiction of the trial court to entertain and decide an application for setting aside an ex
parte decree under Order 9 rule 13. As already stated earlier, two proceedings are different,
distinct and independent and there’s no possibility of conflict of decision.
81
82

26 | P a g e
4.3.32 Dismissal of Appeal Against Ex Parte Decree
Where an appeal against an ex parte decree has been decided on any ground other than the
withdrawal of such appeal, an application to set aside such ex parte decree does not lie.
4.4 Appeal
An appeal lies against an order rejecting an application to set aside ex parte decree. As stated
above, an ex parte decree is a decree under section 96(2) of the Code. A controversial and
somewhat complicated question of law is: whether in such cases the appellate court can only
consider the decree passed by the lower court on merits as to whether there were sufficient to
pass the decree or whether the appellate court can also consider whether there were sufficient
reasons for the defendant for non appearance and the court is not justified in passing an ex
parte decree against the defendant.
There is a conflict of judicial decisions on this point. One view is that the appellate court can
only consider the question whether the decree was wrong in law while the other view is that
the appellate court has the power to consider whether the lower court was justified in
proceeding with the matter ex parte, and if the lower court was not right in doing so, to set
aside the ex parte decree. It is submitted that the latter view is much more acceptable and
preferable, particularly when appeal is continuation of suit and re hearing of the matter.
Appeal does not lie from an order granting an ex parte decree set aside.
4.5 Revision
An order setting aside an ex parte is a “case decided” within the meaning of Sec.115 of the
Code and is therefore, revisable. A High Court may also exercise supervisory jurisdiction
under Art.227 of the Constitution in appropriate cases.
4.6 Review
Since all the remedies against an ex parte decree are concurrent, an aggrieved party can also
file an application for review if the condition laid down in Order 47 Rule 1 are satisfied.
4.7 Miscellaneous

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Person claiming joint tenancy cannot maintain application to set aside ex parte decree against
individual tenant.83 Where an application to set aside ex parte decree is dismissed and that is
not challenged in the appeal then the appeal against the decree cannot be put forward. The
question regarding the ex parte nature of decree cannot be agitated.84
The ex parte decree of Small Cause Court can be set aside only if amount under judgment is
deposited in Court or leave has been obtained to furnish security.85 Considering the
averments made in the application to recall particularly, the ground of illness of advocate on
record and illness of the son of the other Advocate whom he had requested to make a mention
before the Court at the time calling of case, absence of lawyers was for reason beyond its
control.86 It cannot be passed by the appellate court as a matter of course. Application under
Order IX Rule 13, CPC cannot be remanded.87 It is the duty of the litigant to contact the
Advocate. Pleas the Advocate did not inform him about ex parte decree is not ground to set
aside the ex parte decree.88 Delay on the part of the Advocate in preparing and tendering
application is a sufficient cause to set aside ex parte decree. No decree shall be set aside
without notice to the opposite party.
83 Mata Badal Shaw v. Sri Asutosh Paul, 2001 (4) CCC 365 atp.369 (Cal).
84 M.K. Gourikutty v. M.K. Raghavan, AIR 2001 Ker 398 at p. 407.
85 Kedarnath v. Mohanlal Kesarwani, AIR 2002 SC 582 at p. 586.
86 Ram Lakhan v. Presiding Officer, AIR 2001 SC 286 atp. 287.
87 Kashi Nath v. Board of Revenue, Allahabad, 2001 (3) AWC 1886 at p. 1891 (All).
88 Habib Ahmad v. Gulab Devi, 2002 WLC (UC) 25 at p.26 (Raj).

28 | P a g e
CHAPTER 5
CONCLUSION
In every civilized society there are two sets of laws, mainly: (i) substantive laws and (ii)
procedural laws. Substantive laws determine the rights and obligations of citizens.
Subject Procedural laws prescribe the procedure for the enforcement of such rights and
obligations. Of the two, substantive laws are no doubt the more important. But the
efficacy of substantive laws, to a large extent, depends upon the quality of the procedural
laws. Unless the procedure is simple, expeditious and inexpensive, the substantive laws,
however good, are bound to fail in their purpose and object.
The Civil Procedure Code is an indispensable instrument of the country today to tackle
the problems in procedure regarding civil judicial administration. The Code has served
the country in more ways than anticipated by its makers. There have been several
amendments and there is scope for new amendments in the Code. The concept of
appearance and non-appearance of parties have been given space in the Code respecting
the principles of natural justice, fair play etc. Each party gets his rightful chance to defend
himself and present his case before the court. The doctrine of fair hearing is also implied
in this topic. Audi alteram partem which literally means “hear the other side” has
everything to do with this portion of the Civil Procedure Code, 1908.
The defendant is served the summons to appear before the court and submit to the
jurisdiction of the court. The summons is a way of informing the defendant about the
complaint by the plaintiff and the date of hearing of the suit. The defendant is bound by
the summons to appear in court either personally or through his legal representatives on
the date prescribed in the summons. If the defendant fails to appear he should prove that
there was “sufficient cause” for his non-appearance. There is no standard rule laid down
for judging what is ‘sufficient’ and what is not. It depends on the facts and circumstances
of each case. Order IX elaborates on the procedure to be adopted by the court and the
course of law to be followed in different situations which have been dealt with in detail in
this project. The concept of ex parte decree belongs particularly to Order IX of Civil
Procedure Code, 1908 only and its Rule 13 specifically provides the remedy to defendant
against whom the ex parte decree is passed by setting aside the ex parte decree on certain
grounds.

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BIBLIOGRAPHY
1. Acharya, N.K., Guide to C.P.C., Asia Law House, Hyderabad, 2004.
2. Banerjee, Commentary On The Code Of Civil Procedure, 1908, VOL. I, Dwivedi &
Company, Allahabad, 2009.
3. Jain, M.P., The Code Of Civil Procedure, 2nd Edition, Wadhwa Nagpur, 2008.
4. Myneni, S.R., Code Of Civil Procedure &Limitation Act, 5th Edition, Asia Law
House, Hyderabad, 2007.
5. Saha, A.N., The Code Of Civil Procedure, 6th Edition, VOL. 1, Premier Publishing
Company, 2009.
6. Singh, Avtar, Code of Civil Procedure, Act No. 5 of 1908, 2nd Edition, Central Law
Publications, Allahabad, 2009.
7. Sarkar, Code Of Civil Procedure, 11th Edition, Lexis Nexis Butterworths Wadhwa,
Nagpur, 2009.
8. Takwani, C.K., Civil Procedure, 6th Edition, Eastern Book Company, Lucknow, 2009.

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