When a decree is passed without the presence of a party, it is termed as an Ex Parte Decree. Normally, if a decree is passed without the presence of a party, it goes against the principle of Audi Alteram Partem. However, in cases where the defendant has been given 90 days to file a written statement or when the summons has been served upon but the defendant does not appear, in those cases, the Court is free to judge the matter. However, when such a decree is passed without any fault of the defendant, he/she can approach the Court to set aside an Ex Parte Decree. There are four ways in which an Ex Parte Decree can be set aside:
Application to set aside Ex Parte Decree under Order 9 Rule 13 of the Civil Procedure Code:
Order 9 Rule 13 sets out that in case of summons have not been delivered to the defendant or the defendant was prevented from appearing in the Court by a sufficient cause, the Court shall make an order setting aside the ex parte decree.
The explanation to this provision makes it clear that irregularities in the issue of summons will not be a ground to set aside the ex parte decree when the defendant had notice of such hearing and had sufficient time to appear.
The Supreme Court[1] has applied the principle of ‘Presumption of Service’ wherein it is presumed that once summons through the registered post has been sent, the addressee would have received it. If the addressee has not received it, the burden of proof shifts on such addressee to show that he/she did not receive such summons through registered post.[2]
Further, in the case of Gujarat Electricity Board v AtmaramSungomalPoshani[3], the Court held that the party is open to rebut such an assumption that the address mentioned on the cover was incorrect or the party did not refuse such summons. However, the burden of such rebuttal lies with the party to challenge the ‘factum of service’.
Another point of question that arises is the meaning of sufficient cause. While what can be termed as a ‘sufficient cause’ may vary according to the facts and circumstances of the case, in general, the Supreme Court has said that the part must not have acted in a negligent manner but in good faith. In the case of Arjun Singh v Mohindra Kumar[4], the Supreme Court laid down the difference between a ‘sufficient cause’ and a ‘good cause’. The SC observed that every good cause and sufficient cause should provide an explanation for non-disappearance. A sufficient cause is accompanied by a higher degree of proof than a good cause.
An appeal under Section 96(2) of the Civil Procedure Code:
The party against whom an ex parte decree has been passed can also appeal against the same under Section 96(2). If an application to set aside a decree has been rejected, such appeal will not be entertained, however, the party is well within in rights to pursue both the remedies simultaneously.
It was held in the case of Bhanu Kumar Jain v Archana Kumar[5] that even though application under Order 9 Rule 13 has been rejected, an appeal will still lie on merits. However, there will be no reconsideration of grounds that are already decided. Hence, for instance, whether there was a sufficient cause for non-appearance cannot be taken at the time of the trial. In the case where no appeal is available, revision can be filed under Section 115 of the Civil Procedure Code.
Review under Order 47, Rule 1 of the Civil Procedure Code:
Order 47 Rule 1 states that any party may apply for a review of a judgment in a case in a case, where there is a provision of an appeal – but no appeal has been preferred or from such decree where no appeal is allowed.
Filing a suit for fraud:
When the defendant is of the opinion that the ex parte decree is obtained through fraudulent means, he can institute a suit alleging the same. Moreover, the maintainability of the suit does not get affected if an application has been rejected under Order 9 Rule 13 or even an appeal has been dismissed[6].
In the case of Bai Chanchal v. GanpatramJadavji [7], the Gujarat High Court laid out as to in what circumstances can a decree could be said to have been obtained by fraud. The Court observed that when a party suppresses an important fact, on the basis of which the Court is induced to pass an order and obtain a decree in that party’s favor, a fraud is constituted. The Court further observed that a mere non-service of a summons does not constitute fraud, however, when such service is defective and improper, it may be an indication of fraud and consequently, such suit is maintainable. There should be intentional contrivance by keeping the Court in dark and obtaining a decree on the basis of such contrivance. It is essential that the Court is misled and not should be a mere mistake. And when such a decree is obtained by fraudulent representations, the decree is a nullity.
References:
[1]Greater Mohali Area Development Authority v Manju Jain &Ors, AIR 2010 SC 3817.
[2]“Sufficient Cause” for setting aside Ex-Parte Decree: The Law, The Legal Blog, (February 12, 2011), available at http://www.legalblog.in/2011/02/sufficient-cause-for-setting-aside-ex.html.
[3] 1989 AIR 1433.
[4]AIR 1964 SC 993.
[5](2005) 1 SCC 787.
[6]Law Teacher, Passing of the Ex Parte Decree, (November 2013), Available at https://www.lawteacher.net/free-law-essays/administrative-law/passing-of-the-ex-parte-decree-administrative-law-essay.php#citethis.
[7]AIR 1965 Guj. 145.
This article is authored by Priyanshi Joshi, student of 5th-year B.A.LL.B at Institute of Law, Nirma University
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