Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by Rule 9 of Order VII, the Court may make an order that the suit be dismissed:
Provided that no such order shall be made, if notwithstanding such failure, the defendant attends in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and answer.] (Order IX Rule 2).
What Order IX, Rule 1, contemplates is that the date for appearance given in the summons served on the defendant is the date fixed for the hearing of the case, but the hearing may be adjourned from time to time. (AIR 1932 Pat 338).
Under Order IX, Rule 2, C.P.C. a suit can be dismissed only if the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable for such service. Where the plaintiff had deposited process fee, and the only thing that was required of him was to file a summons to the Collector, his failure to file the summons in reasonable time does not entail dismissal of his suit under Order IX, Rule 2 [ILR (1952) 2 Raj 582].
If a party is represented before a court by more than one counsel and if the name of any of the counsel is shown in the cause list and if he does not appear before the court, the case is liable to be dismissed in default, and it cannot be restored on the ground that the name of one of the counsel is not printed in the cause list.
Remedy where suit is dismissed under Rules 2 and 3 above:
Where a suit is dismissed under Rules 2 and 3 above, the plaintiff may (subject to the law of limitation): (a) bring a fresh suit or (b) apply for an order to set the dismissal aside. The court shall set aside the dismissal on being satisfied that there was sufficient cause for the plaintiff not paying the court-fee and postal charges or presenting requisite copies of the plaint or concise statements within the time fixed for the issue of the summons or for his non-appearance. [Order IX, Rule 4],
Life estate for residence in portion of residential house and maintenance of widow become unsecured due to allowing ex parte decree to become final and no property or interest in coparcenary was left behind widow so her daughter, even though class I legal heir, cannot be allowed to be substituted as legal representative of widow.
Dismissal of suit where plaintiff fails to apply for fresh summons:
Where, after a summons has been issued to the defendant and returned unserved, the plaintiff fails for a period of [seven days] from the date of the return, to apply for the issue of a fresh summons, the court shall dismiss the suit as against such defendant, unless the plaintiff has satisfied the court that
(a) He has failed after using his best endeavours to discover the residence of the defendant who has not been served; or
(b) Such defendant is avoiding service of process; or
(c) There is any other sufficient cause for extending the time. Where a suit is dismissed under the above circumstances, the plaintiff may (subject of the law of limitation) bring a fresh suit. [Order IX, Rule 5].
Procedure where only plaintiff appears:
Where the plaintiff appears and the defendant does not appear on the date of hearing of the suit, then—(a) if it is proved that the summons was duly served, the court may make an order that the suit be heard ex parte; (b) if it is not proved that the summons was duly served, the court shall direct a second summons to be issued and served on the defendant; and (c) where the summons though served on the defendant was not in sufficient time to enable him to appear and answer on the date fixed in the summons, the court shall adjourn the hearing of the suit. [Order IX, Rule 6],
Procedure where only defendant appears:
Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall dismiss the suit, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree accordingly. [Order IX, Rule 8].
Where the dismissal of the earlier suit is under Order IX, Rule 8, as the plaintiff cannot bring a suit again on the ‘same cause of action’, i.e., the actual cause of action as made out in the earlier suit, then if he brings a suit for the remaining claim which may be a different cause of action under Order IX, Rule 9, and not barred by its terms, but is the ‘same cause of action’ for the purposes of Order II, Rule 2, then he is clearly ‘afterwards’ suing in respect of the additional claim, and Order I, Rule 2, operates a bar.
On such dismissal of the suit, the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action; but he may apply for an order to set the dismissal aside. The court shall, after issuing notice of the application to the other side and on being satisfied that there was sufficient cause for non-appearance, set aside the dismissal on payment of costs or on other terms as it thinks fit. [Order IX, Rule 9].
An application for restoration of the suit dismissed for default must be made within 30 days of the order or knowledge of the decree, under Article 12 of the Limitation Act, 1963. The court has no jurisdiction to enlarge the period.
Difference between provisions of Rule 4 and Rule 9:
There is basic difference between the provisions of Rule 4 and Rule 9 which are the two provisions for restoration. A suit dismissed under Rule 2 or under Rule 3 does not bar a fresh suit subject to the law of limitation apart from the remedy available to the plaintiff to make a prayer for restoration of the suit itself under Rule 4. Rule 9 precludes the plaintiff from bringing a fresh suit in respect of the fresh cause of action; he can only make a prayer for restoration of the suit already dismissed.
Rule 4 is silent as to whether before an order of restoration of the suit is passed, the defendant is to be heard or not. On the other hand, sub-rule (2) of Rule 9 specifically provides that no order under that rule restoring a suit shall be passed unless notice of the application has been served on the opposite party meaning thereby the defendant. But in rule 4, there is no such provision requiring the court to serve a copy of the application on the defendant.
If it is assumed that requirement is also implicit in Rule 4, there will be hardly any difference between the exercise of power under Rule 4 and Rule 9 of Order IX and there would have been no occasion for having two rules, like Rule 3 and Rule 8 of Order IX relating to dismissal of a suit. The framers of the Code have made a distinction in the aforesaid two rules on a rational basis.
Where a previous suit against three defendants was dismissed in default of appearance of the plaintiff on the date of hearing but in the presence of defendant 1 only, a subsequent suit against the same defendants on the same cause of action is not barred by the provisions of Order IX, Rule 9, C.P.C. against all the three defendants but only so far as defendant 1 is concerned.
The dismissal of the previous suit as against- the absentee defendants 2 and 3 should be taken to be one under Order IX, Rule 3 so as to enable the plaintiff to bring a fresh suit as against defendants 2 and 3 by virtue of Order IX, Rule 4, while the suit against the present defendant should be treated as dismissed under Order IX, Rule 8, only so as to enable him to set up the bar under Order IX, Rule 9.
The prohibition in Order IX, Rule 9, which disables the plaintiff from bringing the suit is limited, therefore, to the suit that was dismissed under Rule 8 as against the defendant who was present at the hearing and it does not reach to those defendants who were absent when the case was called.
The terms of Order IX are all part of the procedural enactments and while construing them an attempt should be made to further the remedy and suppress the mischief. To the extent the defendant who was present and as such prepared to further the progress of the case and the plaintiff was absent, the law inhibits any fresh action; to the extent however the defendant was absent, it is plain that the same said result is neither contemplated nor can be canvassed even on equitable grounds for the defendant was also in default.
Though the cause of action may be same, the earlier dismissal clearly is not res judicata. It is still a dismissal in default of the plaintiff and in the presence of a given defendant. There can be dismissal of a suit by the same order both under Rule 8, as well as Rule 3.
Effect of dismissal:
Subject to an application for restoration the dismissal operates as a final adjudication. But a party is not precluded by reason of dismissal from raising his claim by way of defence in another suit.
Appeal against rejection of an application for restoration of the suit:
Order XLIII, Rule 1 provides that an appeal lies from an order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit.
Ex parte decree:
An ex parte decree is a decree passed in the absence of the defendant. Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing then, if it is proved that the summons was duly served, the court may proceed ex parte, i.e., proceed to take and determine on evidence, and pass a decree in favour of the plaintiff if a prima facie case/ is made out by him [Order IX, Rule 6(l) (a)]. An ex parte decree may be passed either at the first hearing or at an adjourned hearing.
Setting aside ex parte decree:
In order to have an ex parte decree set aside the defendant must apply to the court by which the decree was passed for an order to set it aside and satisfy it either 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.
On being satisfied the court shall make an order setting aside the decree as against the defendant applying or all the defendants, if it is of such a nature that it cannot be set aside against the applicant only, upon such terms as to costs as it thinks fit. [Order IX, Rule 13].
The proviso to Rule 13 further lays down that no 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 notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.
The Explanation added to Rule 13 provides that 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 this rule for setting aside that ex parte decree.
Setting aside of ex parte decree due to knowledge of pendency of suit:
Where application for setting aside of ex parte decree was rejected by trial Court on the ground that defendant had knowledge of pendency of suit as defendant had been appearing in High Court through Counsel. Held, that it was not proper as knowledge of pendency of suit before Court below and date of hearing was relevant for purposes of second proviso to Order IX, Rule 13 and not about its earlier pendency in High Court.
Practice of advocate filing affidavit for setting aside ex parte decree totally wrong and illegal:
The practice of Advocate filing his affidavit in a petition filed under Order IX, Rule 9, C.P.C. is totally wrong and illegal. Such practice has to be deprecated. Order IX, Rule 9 or Order IX, Rule 13, C.P.C. contemplates that the application has to be filed by the party concerned only and not by the counsel. The counsel only is permitted to represent his client he cannot step into the shoes of a client.
Grounds for setting aside ex parte decree—no actual service and absence due to sufficient cause:
The only two grounds mentioned in the above rule for setting aside the ex parte order are that the defendant had not been actually served with the summons of the suit or, in spite of service, the defendant was prevented by any sufficient cause from appearing at the date of hearing. The onus of proving ‘not duly served’ is on the applicant.
The rule can have no application where the defendant refuses the summons. Sufficient cause must be other than lack of knowledge of the proceedings. The question to be considered in such case is whether the defendant honestly intended to be present at the hearing and did his best to do so.
Merits of case not relevant consideration:
The merits of a case shall not form an element for consideration in disposing of an application to set aside a dismissal for default. Nor should the trial court set aside an ex parte decree for the ends of justice where it is satisfied that there was no sufficient cause for the non-attendance of the party. If an ex parte decree is set aside in contravention of the above provisions, it will amount to a material irregularity and the order is liable to be set aside in revision.
It is well settled that in deciding the restoration application for setting aside an ex parte decree the merits of the case or conduct of the applicant should not be taken into account.
Section 151 of the Code cannot be invoked for setting aside an ex parte decree when the defendant fails to establish existence of sufficient cause for his non-appearance. One statutory provision has been made to cover a given field, application of inherent powers would stand regulated and in case statutory law covers the entire field, application of inherent powers would stand excluded.
Scope of Enquiry for setting aside ex parte order:
The scope of enquiry in an application under Order IX, Rule 13, C.P.C. is confined to questions regarding the service of summons and whether there was any sufficient cause preventing the appearance of the defendant when the suit was called on for hearing. In such an application the question whether the minor defendants were properly represented or not are not germane.
Effect of Appeal:
A plain reading of the Explanation to Order IX, Rule 13, C.P.C. clearly indicates that if any appeal against an ex parte decree has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application for setting aside the ex parte decree under Order IX, Rule 13 of the Code will be entertained. The words used in the Explanation are clear and unambiguous.
The language used in the Explanation clearly suggests that where there has been an appeal against a decree passed ex parte 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 Order IX, Rule 13 of the Code for setting aside the ex parte decree.
The disposal of an appeal on the ground of limitation may or may not be adjudication on the merits of the appeal, depending on the particular facts and circumstances of the case and may or may not result in the merger of the decree of the trial court with the decree, if any, of the appellate court; but there cannot be any manner of doubt that when an appeal from the ex parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal.
As the dismissal of the appeal on the ground of limitation results in the disposal of the appeal on any ground other than the ground of the withdrawal of the appeal by the appellant, the Explanation is attracted, and the application for setting aside the ex parte decree becomes incompetent after the disposal of the appeal and cannot be entertained.
In a suit for possession of property by mother-in-law against her daughter-in-law ex parte decree was passed. In application for setting aside the ex parte decree, the court imposed condition that the defendant had to deposit Rs. 2000/- per month as mesne profits from the date of ex parte decree. Supreme Court stayed the execution of ex parte decree and held condition as invalid of depositing mesne profits in view of close relations between the parties.
In revision against order setting aside ex parte money decree, the High Court cannot issue directions for depositing the entire decretal amount with costs while setting aside the ex parte decree. The High Court can only consider whether the trial court has properly considered the facts before passing the ex parte decree.
In eviction suit matter remained part heard for more than 3 years and counsel for tenants informed that he had no instructions. So tenants were ex parte as trial court found that they were prolonging the matter. High Court refused to interfere in revision. Supreme Court also found it not a case to be interfered under Article 136 of the Constitution of India considering the categorical finding of the trial court.
As stated earlier, the period of limitation for the filing of an application to set aside an ex parte decree is 30 days from the date of the passing of the decree, or the date on which the applicant had knowledge of the decree when the summons was not duly served (Article 123 Limitation Act, 1963). But in the latter case the onus is on the defendant to prove that it was presented within 30 days of his having knowledge of the decree.
The rule of procedure prescribed in Order IX, Rule 13 is, therefore, dependent upon, and unequivocally connected with, Article 123, Limitation Act, 1963.
A stranger to a suit affected by the ex parte decree, alleging the decree to have been obtained by practising fraud upon the court can apply for restoration of the suit or bring a regular suit. If a person has two remedies open to him, he can pursue either.
Delay in filing application for setting aside ex parte divorce decree passed against illiterate lady on the basis of substituted service by newspaper publication, can be condoned in the circumstances of the case.
Application for setting aside of ex parte decree was made within 3 days of coming to know about ex parte decree. Such application is within time.
In suit for specific performance ex parte decree was passed as the advocate has withdrawn his vakalatnama without registered notice to the client. In application for setting aside the ex parte decree condoning the delay of 40 days in filing it, the ex parte decree was set aside.
The defendant residing abroad and he came to know about the ex parte decree lately. He has remained diligent as was clear from earlier incidents. The delay of 11 days in filing for setting aside the ex parte decree was .liable to be condemned for setting aside the ex parte decree for sufficient cause of delay.
Meaning of “sufficient cause”:
Order IX of the Code contains provision for restoration of the suit dismissed for default as well as for the setting aside of the decree passed ex parte against the defendant vide Rules 9 and 13 thereof, if he (plaintiff or defendant, as the case may be) satisfies the court that there was sufficient cause for his non-appearance when the suit was called for hearing.
What is a “sufficient cause” for non-appearance has not been defined in or by any jacket formula but has been left to be tested, considered and decided by the court in the context of facts of a particular case keeping in view the basic principles of justice, equity and good conscience and the object of all rules of procedure.
All the rules of procedure are made and do exist to substantiate the cause and course of justice and not to hamper or obstruct its flow, so sufficient cause has to be judged and determined in each case with justice oriented concept in the light of the facts of each case.
The suit was decreed ex parte when counsel stated that he has no instructions without sending notice to the defendant. The defendant filed application to set aside the decree within 4 days of knowledge about it. The ex parte decree was set aside as the defendants were not careless.
Application of wife for setting aside ex parte decree of divorce is maintainable even after the death of the husband as decree of divorce is effective in the eyes of law and it determines the statue of wife.
Husband died after obtaining the ex parte divorce decree against the wife. Aggrieved wife is entitled to move application for setting aside ex parte decree by impleading the legal heirs of the deceased husband as opponents or respondents.
[The mere filing of an application for setting aside an ex parte decree or for restoration of the appeal does not render the appeal sub judice.]
No decree shall be set aside on any such application unless notice thereof has been served on the opposite party. [Order IX, Rule 14].
Appeal against rejection of an application for an order to set aside a decree passed ex parte:
Order XLIII, Rule 1 provides that an appeal lies from an order under Rule 13 of Order IX rejecting an application (in case open to appeal) for an order to set aside a decree passed ex parte. In an appeal against an ex parte decree the appellant can only be heard on the merits of the case. The appellate court cannot go into the question as to why the appellant had not appeared on the date of final hearing before the trial court. This is the scope of an application under Order IX, Rule 13, C.P.C.
Limitation Act, 1963—Sec. 5—Setting aside of ex parte decree:
When delay in filing application for setting aside ex parte decree sufficiently explained and inconvenience caused to opposite party can be compensated then ex parte decree set aside.
Remedies open to parties in case of dismissal of suits:
1. When neither party appears when the suit is called on for hearing and the court dismisses the suit.
The plaintiff may either bring a fresh suit, or may apply to the court for the setting aside of the order of dismissal.
2. Remedies in a case of ex parte decree, i.e., where the plaintiff appears and the defendant does not appear an ex parte decree is passed in favour of the plaintiff on proving the service of the summons on the defendant and on his proving the case—Where an ex parte decree is passed against the defendant, he may: (a) prefer an appeal to higher court under section 96(2); or (b) apply for a review of judgment to the court which passed the decree under section 114, or (c) apply for the setting aside of the decree under Order IX, Rule 13, to the court which passed the decree on either of the two grounds, viz., 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. A revision application also lies against the order dismissing a petition under Order IX, Rule 13.
3. Where the defendant appears and the plaintiff does not appear and the court dismisses the suit.—The remedy open to the plaintiff is: (a) to apply for the setting aside of the order of dismissal or (b) to apply for a review of judgment under Order XLVII, Rule 1. The plaintiff is precluded from bringing a fresh suit in respect of the same cause of action.
4. Where an ex parte decree is alleged to have been obtained by the plaintiff by fraud, the defendant may institute a regular suit to set aside the ex parte decree on the ground of fraud.