📘 CIVIL PROCEDURE CODE : ORDER IX

BHANU KUMAR JAIN V. ARCHANA KUMAR [2005 SUPREME COURT]

TOPIC:

• Remedies available to a defendant in the event of an ex parte decree being passed against him in terms of Order 9 Rule 13 and the extent and limitation thereof

⚖️ Supreme Court Decision

Appeal in terms of Order 43 Rule 1

• When an application under Order 9 Rule 13 of is dismissed, the defendant can only avail a remedy available there against viz. to prefer an appeal in terms of Order 43 Rule 1.

• The respondents are entitled to raise their contentions as regards merit of the plaintiff’s case in appeal confining their contentions to the materials which are on record of the case.

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📜 CPC PROVISION: ORDER IX RULE 13

• Where a decree is passed ex parte against a defendant

– he may apply to the Court by which the decree was passed for an order to set it aside

• If he satisfies the Court that the summons was not duly served or

– that he was prevented by any sufficient cause from appearing

• the Court shall make an order

– setting aside the decree and appoint a day for proceeding with the suit

• A Court shall not 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

Explanation

• Where there has been an appeal against a decree passed ex parte and

– the appeal has been disposed of and not withdrawn

• no application shall lie under this rule

– for setting aside that ex parte decree

📚 THE LAW OF EX-PARTE DECREES:

Case Study: Bhanu Kumar Jain v. Archana Kumar [2005 SC]

The question:

• Remedies available to a defendant in the event of an ex parte decree being passed against him in terms of Order 9 Rule 13 and the extent and limitation thereof?

Facts of the case

• One N.N. Mukherjee was the owner of the premises in suit.

• He died leaving behind son P.P. Mukherjee (original plaintiff), his wife Suchorita Mukherjee (original defendant 1) and daughter Archana Kumar (original defendant 2).

• The original plaintiff [the son] filed a suit for partition in the year 1976.

Hearings

• The case was fixed for evidence on 3-8-1985. On 3-8-1985 nobody was present on behalf of the defendant.

• The matter was again posted for 7-10-1985.On that day again counsel for the defendant was not present.

• Since defendant 1 was absent and did not cross-examine the plaintiff; the case was directed to be posted ex parte against her and the right of cross-examination was forfeited.

• The case was fixed for final argument on 11-10-1985. Yet again on 11-10-1985 the plaintiff was present but the defendants were not.

• The case was fixed for delivery of judgment on 30.10.85.

Defendant finally appears

• On 30-10-1985, an application was filed by the defendants in terms of Order 9 Rule 7 for setting aside the order dated 7-10-1985 whereby the suit was posted for ex parte hearing. This application was rejected by an order dated 31-10-1985.

• A revision application was also filed challenging the order dated 31-10-1985 whereunder the defendants’ application under Order 9 Rule 7 was dismissed. This revision application against dismissal of defendants’ application under Order 9 Rule 7 was also dismissed.

Ex-parte decree

• A preliminary decree for partition was passed on 1-11-1985 in favour of the plaintiff.

• An application under Order 9 Rule 13 was filed by the defendants on 5-11-1985. This application was dismissed by an order dated 15-1-1986 holding that the defendants failed to prove good and sufficient cause for their absence on 7-10-1985.

• An appeal in terms of Order 43 Rule 1(d) was filed on 30-1-1986.

Order 43 Rule 1(d)

• An appeal shall lie

– from an order under rule 13 of Order IX

– rejecting an application for an order to set aside a decree passed ex parte

• This appeal in terms of Order 43 Rule 1(d) was dismissed.

Appeal to HC against ex-parte decree

• Then, a regular first appeal u/s 96(2) against the ex-parte decree was filed in High Court.

• The High Court allowed the appeal in 2002 holding that the trial Judge had grossly erred in law by proceeding ex parte against the defendants.

Appeal to SC

• An appeal was filed in the Supreme Court against this order of High Court.

***The judgment and decision of the Supreme Court follow in detail in the next post.

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❓ Frequently Asked Questions – Order IX Rule 13 & Ex Parte Decrees