Indian Law/Non-appearance in civil courts

Comparative pendency of cases in the Judgeship of Rayagada

INTRODUCTON

The provisions of the Civil Procedure Code are based on a general principle that, as far as possible, no proceeding in a court of law should be conducted to the detriment of any party in his absence. Order IX of the Code enacts the law with regard to the appearance of the parties to the suit and the consequences of their non-appearance. It also provides a remedy for setting aside an order of dismissal of the suit as also the setting aside of an ex-parte decree passed against the defendant.

ISSUES TO BE DISCUSSED

The following issues are to be discussed in the presentation:

Q.1 Delineate the concept of sufficient cause.

Q.2. Why does order-IX R-7 not operate as res-judicata in application under Order-IX,Rule 13 of Code of Civil Procedure ?

Q.3 Which remedy is available for a defendant in setting aside the ex-parte decree?

Q.4. Enumerate the duties of a court if parties fail to appear or either party fails to produce evidence on the adjourned date of hearing

Q.5. Analysis the procedure for bringing a lis-pendens transferee on record and that too, if a Decree is passed against his transfer

DISCUSSION ALONG WITH RELEVANT JUDGMENTS OF THE APEX COURT

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 . It was held in the case Bijay Kumar .v. Kamalabai (1995) 6 SCC 148.

The words “sufficient cause” must be liberaly construed to enable the court to exercise powers ex debito justitiae.(Ġ.P. Sribastaba.v. R.K.Raizada(2000) 3 SCC 54). A party should not be deprived of hearing unless there has been something equivalent to misconduct or rash negligence on her part.(Sudhadevi .v. M.P.Narayanam,AIR 1988 SC1381). Necessary materials should be placed on record to show that the appellant was diligent and vigilant.(Vijay Kumar .v. Kamalabai(1995) 6 SCC 148). If there are delaying tactics and non-cooperation on the part of party, he can not seek indulgence of the court. The test to be applied is whether the party honestly intended to remain present at the hearing of the suit and did his best to do so.( Payal Ashok Kumar .v. Cpt. Ashok Kumar(1992) 3 SCC -116).

POWER AND DUTY OF COURT

When the application of for set side ex-parte decree is made by the defendant the court should consider 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. Conversely if sufficient cause is not shown, ex-parte decree can not be set aside. This right and this duty is a sine qua non of judicial procedure This view was held in Diwalbai .V. Jail Kumar ARI 1969 Bombay 393. An order setting aside ex-parte decree is judicial and it must be supported by reasons.(Mahesh Yadav .V. Rajeswar Singh(2009) 2 SCC 205).

TEST

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 reply is in the affirmative, ex parte decre should be set aside but if it is in the negative, ex parte decree cannot be recalled.

PRECEDENTS

“Sufficient cause” is a question of fact. Each case has to be decided on the facts and in the circumstances before the court and not on precedents.(Vijaya Kumar V. Kamalabai(1995)6 SCC326).

BURDEN OF PROOF

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. It was held in Rampati Devi V. Chandrika Devi,AIR 1979.

SUFFICIENT CAUSE:ILLUSTRATIVE CASES

The following causes have been held to be sufficient for the absence of the defendant;

1. bona fide mistake as to the date of hearing
2. late arrival of a train;
3. sickness of counsel;
4. fraud of the opposite party
5. mistake of pleader in noting wrong date in 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 party;
9. strike of advocates;
10. no instructions pursis by a lawyer,etc.

NO SUFFICIENT CAUSE:ILLUSTRATIVE CASES: The following causes, on the other hand, hand, have been held not to be sufficient for absence of the defendant for setting aside an ex parte decree;

1. dilatory tactics;
2. bald statement of noting wrong date in diary;
3. negligence of party;
4. counsel busy in other court;
5. suit of high valuation
6. absence of defendant after prayer for adjournment is refused;
7. hardship of defendant;
8. absence to get undue advantage;
9. mere thinking that the case will not be called out;
10. not taking part in proceedings,etc.

Q.2. Why does Order IX,Rule 7 not operate as res-judicata in application under Order-IX ,Rule 13 of C .P. C .? Ans:- Order-9,Rule 7 provides that where the court has adjourned the hearing of the suit ex partę and the defendant at or before such hearing appears and assigns good cause for his previous non-appearance, he may upon such terms as the court directs as to costs or otherwise be heard in answer to the suit as if he had appeared on the day fixed for his appearance . For the application of Res-judicata as enshrined under Section 11 of C.P.C, there must be an issue raised, that must be heard and finally decided by a competent Court. But in Order IX, Rule 7 there is no final adjudication of any issue by the court. Hence IX Rule 7 does not operate as res-judicata in application under Order IX Rule 7.

Q.3. Which remedies are available for a defendant in setting aside the ex-parte decree? Ans. EX-PARTE DECREE:

MEANING

An ex parte decree is a decree passed in the absence of the defendant (in absenti). Where 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.(Ram Gobinda V. Bhaktabala, AIR 1971 SC 664).

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 IX, Rule 13 ;or
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 review:Order 47 Rule 1;or
4. to file a suit on the ground of fraud.

The above remedies are concurrent and they can be prosecuted simultaneously or concurrently.[Mahesh Yadav V. Rajeshwar Singh,(2009) 2 SCC 205]

(1)Setting aside ex parte decree:Rule 13 : (i)Who may apply? 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. A purchaser of mortgaged property, hence,may make an application under Order 9 Rule 13 of the Code.(Santosh Chopra V. Teja Singh,AIR 1977 Del). But a defendant against whom the suit has been dismissed cannot be said to be “aggrieved” by the decree and can not apply under this rule.

(ii)Where application lies? An application for setting aside ex-parte decree may be made to the court which passed the decree. Where such decree is confirmed, reversed or modified by a superior court, an application may be filed in a superior court.

(iii)Grounds: 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 (i) the summons was not duly served; or (ii) he was prevented by any sufficient cause from appearing when the suit was called out for hearing, the court will set aside the decree passed against him and appoint a day for proceeding with the suit.

(iv)Summons not duly served: 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 the summons was duly served. In that case, an ex-parte decree may be passed against him. Therefore, if the defendant satisfies the court that the summons was not duly served upon him, the court must set aside the ex parte decree passed against him,

(v)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.The words “sufficient cause” must be liberally construed to enable the court to exercise powers ex debito justitiate. A party should not be deprived of hearing unless there has been something equivalent to misconduct or gross negligence on his part.

(vi)Test: 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 reply is in the affirmative, ex parte decree should be set aside but if it is in the negative, ex parte decree cannot be recalled.

(vii) Irregularity in service of summons:Effect: The second proviso, as added by the Amendment Act of 1976, however, lays down that the court shall not set aside an ex parte decree merely on the ground of irregularity in service of summons in a case where the defendant had adequate notice of the date of hearing of the suit, and had sufficient time to appear and answer the plaintiff's claim. The code thus makes distinction between illegality and irregularity. The former goes to the root of the matter and renders the action null and void. The latter, however, does not invalidate the action, unless prejudice has been caused to the person making a complaint. The word “and” in the second proviso to Rule 13 must be read as conjunctive and not disjunctive. Hence, unless both the conditions are satisfied, an ex parte decree cannot be set aside.

(vii)Limitation:

An application for setting aside ex-parte decree can be made within thirty days from the date of the decree.

(viii)Notice to opposite party:

An ex-parte decree can not be set aside without issuing notice to the opposite party and without giving him an opportunity of hearing. This is in consonance with the principles of natural justice and fair play. (ix) Procedure:

An application under Rule 13 for setting aside ex-parte decree may be made by the defendant. In case of death of defendant, his legal representatives can also make such application. It should be signed and verified by the party and not by his advocate.6 (x) ' Upon such terms and conditions as the court thinks fit':

The court has a very wide discretion in imposing such terms and conditions on the defendant as it thinks fit before setting aside the ex-parte decree.(V.K.Industries V.M.P.Electricity Board,AIR2002SC159). It may order the payment of costs, or may order the defendant even to deposit the decretal amount in the court in an appropriate case. The discretion, whoever, must be exercised reasonably and judicially and not arbitrarily or capriciously. If the terms are onerous, or otherwise unreasonable, a superior court can interfere with them. When an ex parte decree is set aside on certain condition and those condensations are not complied with within the time granted by the court, the application stands dismissed. (xi) 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 been changed, a second application would be maintainable.(Prahalad Singh V.Sukhdev Singh,AIR1987 SC 1145). (xii) Successive applications:

Successive applications are maintainable only if circumstances have changed, not otherwise. (xiii) Extent of setting aside ex parte decree:

A peculiar situation, however,arises where an ex parte decree is passed against all the defendants but summonses are not served to all of them; or an application to set it aside is made by some of them; or where against some of the defendants a decree is passed on merits after hearing them but against some of the defendants it is passed ex parte and an application to set it aside is made by one or more of the defendants against whom a decree is passed ex partę. As a general rule the court will set aside the decree only against such defendant or defendants who had made an application.(Rupchand Gupta V. Raghuvanshi Pvt. Ltd, AIR 1964 SC 1889). Illustration :

In a suit by A against B, C and D,ex parte decree was passed. C and D were not served with summonses while B was served. In an application by C and D, it was held that the decree against B cannot set aside. (xv) Effect of setting aside ex parte decree:

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 be taken into account.(Ganesh Prasad V. Lakshmi Narayan, AIR 1985 SC 964). (xvi) Hearing of application pending appeal:

Mere filing of an appeal in an appellate court against an ex parte decree does not take away the jurisdiction of the trial court to entertain and decide an application for setting aside an ex parte decree under Order 9 Rule 13. As already stated earlier , two proceedings are different , distinct and independent and there is no possibility of conflict of decision. (2) Appeal:

An appeal lies against an order rejecting an application to set aside ex parte decree. As stated above , an ex parte decree is a decree under Section2(2) of the Code and, therefore , an aggrieved party can also file an appeal under Section 96(2) of the Code. A controversial and some what complicated question of law is: Whether in such cases , the appellate court can only consider the decree passed by the lower court on merits as to whether there were sufficient grounds to pass the decree or whether the appellate court can also consider whether there were sufficient reasons for the defendant for non-appearance and the court was not justified in passing an ex parte decree against the defendant.

There is a conflict of judicial decisions on this point. One view is that the appellate court can consider only the question whether the decree was wrong in law while the other view is that the appellate court has power to consider whether the lower court was justified in proceeding with the matter ex parte and, if the lower court was not right in doing so, to set aside the ex parte decree. It is submitted that the latter view appears to be much more acceptable and preferable particularly when appeal is continuation of suit and rehearing of the matter. (3) Revision:

An order setting aside an ex parte decree is a “case decided” within the meaning of Section 115 of the Code and is , therefore , revisable . A High court may also exercise supervisory jurisdiction under Article 227 of the Constitution in appropriate cases.(Kamta Prasad V.Jaggiya, AIR 1999 All 184). (4) Review:

Since all the remedies against an ex parte decree are concurrent , an aggrieved party can also file an application for review if the conditions laid down in Order 47 Rule 1 are satisfied. (5) Suit:

A suit to set aside an ex parte decree is not maintainable. But if an ex parte decree is alleged to have been obtained by the plaintiff by fraud, the defendant can file a regular suit to set aside such decree. It is a settled law that fraud vitiates the most solemn transactions.(Bhanu Kumar Jain V. Archana Kumar, AIR 2005SC 626). In such suitş the onus is on the part who alleges that the ex parte decree passed against him was fraudulent.

Q.4. Enumerate the duties of a court if parties fail to appear or either party fails to produce evidence on the adjourned date of of hearing?

Ans:- Order-17,Rule -2 of ĊPC provides that where on any day to which the hearing of the suit is adjourned,the parties or any of them fail to appear the court may proceed to dispose of the suit in one of the modes directed in that half by order-9 and make such other order as it thinks fit.

The explanation to Order -17 Rulē2 provides that where the evidence or a substantial portions of evidence of any party has been already recorded as such party fails to appear on any day to which the hearing of suit is adjourned, the court may, in its discretion proceed with the case as if such party were present. Order-17 Rulē3 of Civil Procedure Code provides that where any party in the suit to whom time has been granted fails to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, not withstanding such default:-

(a) If the parties are presenţ proceed to decide the suit forthwith ,or

(b) If the parties are or any of them is absent proceed under Rulē2 of Order 17 of Civil Procedure Code . APPEARANCE OF OPARTIES: ORDER 9-RULES 1 & 12:

Rule 1 requires the parties to the suit to attend the court in person or by their pleaders on the day fixed in the summons for the defendant to appear. Rule 12 provides that where a plaintiff or a defendant, who has been ordered to appear in person, does not appear in person or show sufficient cause for non-appearance, the court may dismiss the suit, if he is the plaintiff, or proceed ex parte if he is the defendant.

WHERE NEITHER PARTY APPEARS? ORDER 9-RULE 3:

Where neither the plaintiff nor the defendant appears when the suit is called out for hearing, the court may dismiss it. The dismissal of the suit under Rule 3, however, does not bar a fresh suit in respect of the same cause of action. 2 The plaintiff may also apply for an order to set aside such dismissal. And if he court is satisfied that there was sufficient cause for his non-appearance, it shall pass an order setting aside the dismissal of the suit and shall fix a day for proceeding with the suit.3

WHERE ONLY PLAINTIFF APPEARS?ORDER 9-RULES 6,10:

Where the plaintiff appears and the defendant does not appear, the plaintiff has to prove service of summons on the defendant. If the service of summons if proved, the court may proceed ex parte against the defendant and may pass a decree in favour of the plaintiff, if the plaintiff proves his case.This provision, however, is confined to first hearing and does not per se apply to subsequent hearings. Where there are two or more plaintiffs and one or more of them appear and the others do not appear, the court may permit the suit to proceed as if all the plaintiffs had appeared, or make such order as it thinks fit.

WHERE ONLY DEFENDANT APPEARS?ORDER 9-RULES 7-11:

Where the defendant appears and the plaintiff does not appear and the defendant does not admit the plaintiff's claim,wholly or partly, the court shall pass an order dismissing the suit. But if the defendant admits the plaintiff's claim as a whole or a part thereof, the court will pass a decree against the defendant upon such admission and dismiss the suit for the rest of the claim.

Q.5. Analysis the procedure for bringing a lis-pendens transfree on record and that too if a decree is passed against the transfer?

Ans. In Nawab John & Ors.Versus V.N. Subramaniyam(2012)7SCC 738(Chelameswar, J.), the Hon’ble Apex Court held that “This Court on more than one occasion held that when a pendente lite purchaser seeks to implead himself as a party – defendant to the suit, such application should be liberally considered. There is some divergence of opinion regarding the question, whether a pendente lite purchaser is entitled, as a matter of right, to get impleaded in the suit, this Court in (2005) 11 SCC 403, held that : “Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendent elite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case. This Court also held in Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi and Another, AIR 1958 SC 394, that, “justice requires”, a pendente lite purchaser“should be given an opportunity to protect his rights”. It was a case, where the property in dispute had been mortgaged by one of the respondents to another respondent. The mortgagee filed a suit, obtained a decree and ‘commenced proceedings for sale of the mortgaged property’. The appellant Saila Bala, who purchased the property from the judgment-debtor subsequent to the decree sought to implead herself in the execution proceedings and resist the execution. That application was opposed on various counts. This Court opined that Saila Bala was entitled (under Section 146 of the C.P.C.) to be brought on record to defend her interest because, a purchaser pendente lite, she would be bound by the decree against her vendor.

The preponderance of opinion of this Court is that a pendente lite purchaser’s application for impleadment should normally be allowed or “considered liberally”.

Lis pendens transferee is entitled to get set aside exparte decree passed against his transferor. A lis pendens transferee, though not brought on record under Order 22 Rule 10 of the CPC, is entitled to move an application under Order 9 Rule 13 to set aside a decree passed against his transferor - the defendant in the suit. It was held in Raj Kumar vs Sardari Lal And Ors. on 20 January, 2004 .

(NB:- The author of this article is a Civil Judge in the district of Rayagada, India, Odisha)

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