-By Arpit Agrawal :
An ex parte decree is a decree passed in the absence of the defendant (in absenti). When 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.
REMEDIES
The defendant, against whom an ex parte decree has been passed, has the following remedies available to him:
1. To apply to the court by which such decree is passed to set it aside: Order 9 Rule 13.
2. To prefer an appeal against such decree: Section 96(2) (or to file a revision under section 115 where no appeal lies).
3. To apply for a review: Order 47 Rule 1.
4. To file a suit on the ground of fraud.
These remedies are concurrent and they can be prosecuted simultaneously or concurrently. “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.”
SETTING ASIDE EX PARTE DECREE: RULE 13
Application
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. 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.
An application for setting aside ex parte decree may be made to the court which passed the decree. Where such a decree is confirmed, reversed or modified by a superior court, an application may be filed in a superior court.
This rule requires an application by the defendant to set aside an ex parte decree passed against him if, there exist sufficient grounds for it. If the defendant satisfies the court that:
1. The summons was not duly served.
2. He was prevented by any sufficient cause from appearing when the suit was called out for hearing.
In such cases the court will set aside the decree passed against him and appoint a day for proceeding with suit. 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 summons was duly served.
Sufficient Cause
The expression “sufficient cause” has not been defined anywhere in the Code. It is a question to be determined in the facts and circumstances of each case. 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 should be placed on record to show that the applicant was diligent and vigilant. Whether or not it was sufficient cause would depend upon facts and circumstances of the case.
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 case is affirmative, ex parte decree should be set aside but if it is in the negative, ex parte decree cannot be recalled.
When an application for setting aside ex parte decree is made by the defendant, the court considers 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 set aside the decree. However, “Sufficient Cause is a question of fact and each case has to be decided on its own facts and circumstances and cannot be determined by precedents.
The burden of proof that there was “sufficient cause” for non-appearance is on the defendant. But, it is enough if he proves that he attempted to remain present when the suit was called on for hearing. There may be many proceedings in a court wherein his personal presence may not be necessary.
The following causes have been held to be sufficient for the absence of the defendant:
1. Bona fide mistake as to the date of the hearing;
2. Late arrival of a train;
3. Sickness of a counsel;
4. Fraud of the opposite party;
5. Mistake of the pleader in noting wrong date in the diary;
6. Negligence of next friend or guardian in case of minor plaintiff or defendant;
7. Death of relative of a party;
8. Imprisonment of a party;
9. Strike of advocates;
10. No instructions pursis by a lawyer, etc.
Limitation
An application for setting aside ex parte decree can be made within thirty days from the date of the decree. An ex parte decree cannot be set aside without issuing notice to the opposite party and without giving him an opportunity of hearing.
An application under Rule 13 for setting aside ex parte decree may be made by the defendant or his legal representatives. It should be signed and verified by the party and not his advocate.
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 changed, a second application would be maintainable.
Successive applications are maintainable only if circumstances have changed, not otherwise.
Effect
The effect of setting aside an ex parte decree is that the suit is restored, and 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 proceedings should not b taken into account.
CONCLUSION
The Right to be heard in a suit is one of the tenets of principles of natural justice and our Civil procedure duly provides for such right to the party. Despite the sufficient opportunity provided if the party does not avail this to explain himself, the court has to hear the suit ex parte. In order for the justice system to be efficient and to not prejudice the rights of the plaintiff this is justified. However to safeguard the right to be heard, the code considers an Ex Parte decree voidable.
Owing to unavoidable reasons the party might not appear for the hearing. In such cases the Code is sensitive. On careful reading of Order IX Rule 13 it is obvious that the applicant for setting aside the ex parte decree should satisfy the Court that there was sufficient cause for its non- appearance on the date of hearing. An application under this rule cannot be entertained on moral or humanitarian grounds however; the Courts also cannot be deaf toward the realities of life.