Ex-parte Proceedings and Remedies

Introduction:

Ex parte in Latin stands for ‘out of the party’ that implies the party was not present during the hearing and hence the judge ruled in the favor of the plaintiff as there had been no representation of the defendant party. The right to equal representation and to be heard in court is an essential principle of natural justice. This principle requires both parties to be heard and must be allowed to present their case with their own perspective and this must be heard and respected. It requires the judge to be unbiased and take a decision keeping his personal views and opinions aside. In the presence of this principle, the ex-parte concept seems like a contradiction. The exception lies in the fact that ‘after sufficient opportunity’ given to the defendant party to appear and summon that is duly served on him, the court may exercise its power to declare the party as ex-parte and pass the decree against the defendant as there has been no representation. A decree or a judgment is passed when the suit is complete, but this case is an exception as a civil proceeding may be considered a suit when a complaint is filed and no other requirement is necessary.[1]

Ex-parte Proceedings

Order 9 provides for the proceedings of an ex-parte suit. Order 9 rule 6 and its subsections establish different scenarios where only the plaintiff appears and an ex-parte decree has to be passed:

1. When summons was duly served: In this case, if it is shown by evidence that the summons was duly served then the court may pass an ex-parte decree.
2. When summons was not duly served: In this case, if it is proved that summons was not severed, a second summons may be issued and served on the defendant.
3. When summons was served but not in due time: In this case, if it is proved that the summons issued without serving sufficient time for the defendant to appear, a future date may be assigned for the hearing so that the defendant is allowed to appear and represent himself. This may be done by sending a direct notice.

Remedies

The basic principle followed in the CPC is the res judicata which means a case decided on its merits. An ex-parte decree stands valid and enforceable unless set aside, but the mere fact of it being ex-parte does not imply that it does not pass the test of res judicata. The test is the check of the validity and truth in the claim of the plaintiff, the penalty imposed on the defendant notwithstanding the fact that the evidence is led by one party.

There lie four basic remedies under the Civil Procedure Code, and these may be exercised in isolation or simultaneously. To reduce confusion for the court it was made clear that if two or more remedies are exercised then one is not to be taken by derogating another[2].

1. Order 9, Rule 13:

Under this rule, the defendant can set aside the decree given by the court by proving the fact that the summons was not duly served or that the summons did not have sufficient time to appear. If the court is convinced by the reasoning presented and thinks fit to believe the reason of non-representation, then it may allow a day for the proceedings to be conducted. There are certain essential steps that are to be followed in order while exercising the right under this. The steps are-(a) summons duly not served, (b) sufficient cause, (c) specific consequences, (d) effect of setting aside that lead to the restoration of status quo, (e) dismissal of the application, (f) in accordance to the section 164 of The Limitation Act, (g) appeal. The time limit to file an application under this is thirty days from the date of the decree. If the ex-parte decree is set aside, then the suit will be considered a normal suit, the evidence filed will not be considered and the case will be then decided on its merits.

2. Review under Section 114:

Under this section it empowers the defendant to review any judgments which are expressly under this section[3]. Any review application for a laid down precedent is not allowed under this section unless the ones declared in Order 47 Rule 1 which lays down the following grounds:

•  discovery of new matter or evidence 
•  fault or error on the face of the record
•  any other sufficient reason that the court may find fit.

The review application does not apply any limitation on the power of the court but limitations on the cases which can claim a review making sure the decision is still at the discretion of the court[4]:

(a) cases in which appeal can be exercised but is not preferred 

(b) cases in which no right to appeal exists

(c) decisions on reference from Court of Small Causes

The power to review lies in cases of correction of a mistake and not to merely change the view or opinion of the court as that would be nothing but misuse of rights. The authority of review exists in cases where such power is explicitly mentioned. It cannot be treated like an appeal camouflaged as a review[5]. Unlike appeal, a review once dismissed cannot be applied for review again.

3. Appeal Under Section 96(2):

The right to appeal is not a mere procedural right but a statutory and substantive right. A statutory right is a right that is derived from a statue that provides for the power and limitation to exercise such right. The right to appeal stands distinct from the right to sue as there is an appeal machinery that is established which is not the case with the latter. The right to appeal is discussed under section 96 of the CPC which clearly states that no appeal lies if the court has passed the decree with the consent of both parties. This is a limitation that it established but it allows for appeal any decree passed by the court if any of the parties are dissatisfied if the court has exercised original jurisdiction. Section 96(2) lays down another case where appeal to the decree can be exercised and that is ex-parte suits.

4. Fraud Under Section 12:

The decree can be filed as a fraudulent decree if the defendant can prove a positive fraud on the part of the plaintiff as his representation was made impossible by the acts of the plaintiff. This suit may progress even if the application on Order 9 fails as mentioned earlier such remedies are to be treated in isolation. Similar to any other fraud case, here the onus lies on the ex-parte to prove the alleged fraud as an actual event.

Conclusion

While such remedies are exercised, the discretion lies with the court to decide whether such absence of the defendant is justified or not. If it is then the procedure to set aside the decree must be carefully followed. It is evident that the Court has the authority to allow or dismiss and this authority must not be abused by the court by committing to pre-evaluated opinions or views.  Justice is to be served as that is the objective of such remedies and rights provided by the civil laws.

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References:

[1] Hansraj vs Dehradun Mussoorie Tramways Co. Ltd AIR 1929 All 353.

[2] Ajudhia Prasad vs. Balmukund (1866) ILR 8 All 354

[4] Board of Control for Cricket in India v. Netaji Cricket Club AIR 2005 SC 502

[5] Kalpatru Agro Forest Enterprises V. Union of India AIR 2002 SC1402