STUDY ON RESTORATION OF EX-PARTE DECREE

Name – Mohita Singhal

Semester – 9th

Section - C

Roll Number – 75
 INTRODUCTION AND BACKGROUND TO ORDER 9

Order 9 is one of the most essential steps in terms of the procedure of Trial in the Civil
Procedure Court. It is after the Parties, through themselves, or through their
agents/representatives institute a suit in the court of competent jurisdiction, by filing a plaint,
which is followed by issuance of summons, and thereafter, by filing of Written Statement by the
defendant in response to the plaint and pleadings.

After the Written Statements, both parties have to appear in the court for the first hearing, and
the court may take actions if there is a consequence non-appearance. The Rules of Appearance
and Non Appearance of the parties is contained in Order 9.
 UNDERSTANDING EX-PARTE DECREE UNDER ORDER 9

 When is the court empowered to pass an ex-parte decree?

Following are the important Rules under Order 9, wherein the court is empowered to pass
ex-parte decrees.

 Rule 3 of Order 9 talks about dismissal of suit when neither party appears. However, an
ex-parte decree may be passed in case of the following rules.
a) If it is proved that the defendant did not appear, despite the “summons being duly served”
on him, the court may pass an order that the suit be proceeded ex parte and then proceed
accordingly. This is given in Rule 6. In this case, the defendant does not have the right
to bring an application for restoration.
b) On the non-appearance of the defendant, the plaintiff is required to make out a prima
facie case to prove his case and get a decree in his favour. The case would not be passed
ex-parte on an automatic presumption that the plaintiff’s case is true.
c) In such a case, when the plaintiff fails to prove his case before the court, despite that the
judge passed an ex-parte decree, it is then that the defendant is legally entitled to or ex
debito justitiae to file an application for setting aside of such decree of a restoration
application.

 Rule 7 of Order 9 talks about the case when on a subsequent appearance of the
defendant, after the suit has already been declared ex-parte, he should not be precluded
from appearing on the adjourned date of the hearing when the ex-parte suit is still
pending. In the case of Arjun v Mohindra1, the court held that the application filed under
O 9, r 7 would not be maintainable when the arguments in a suit have been concluded and
the judgment is set to be pronounced on a fixed date. The defendant has to appear on the
subsequent adjourned date of hearing, when the suit is pending and exercise his rights.

1
Arjun v Mohindra, AIR 1964 SUPREME COURT 993
  Rule 8, decreeing of suit ex-parte against the plaintiff and remedy available.

Rule 8 lays down the law w.r.t the situation when only the defendant appears. A situation may
arise in such a situation that on the non-appearance of the plaintiff, the court may dismiss the suit
to the extent of which the defendant does not by himself admit the claim against him, and decree
the claim ex-parte to the extent he does. Here, the remedy that lies to the plaintiff may be
somewhat confusing, since Rule 13 only talks about the remedy of setting aside application
available to the defendant.

Two important points must be noted here. First, the plaintiff has a right to appeal against to
extent of the ex-parte decree. Second, w.r.t the order of dismissal, since the same cannot be
appealed, it is subject to revision, and third this may also be adjudicated by the Hon’ble High
Court under its jurisdiction exercised under Article 227. It is held that in such a case, the
dismissal of a suit doesn’t operate as a res judicata.

 Remedies in case of ex parte decree.

(i) Restoration of suit application under “Order 9, rule 13”.

(ii) Dismissal of suit on ground of fraud.
(iii) Appeal under “Section 96(2)”.
(iv) Review under “Order 47, Rule 1”.
(v) Where no appeal lies, Revision under “Section 115”.

It must be remembered that the above mentioned remedies can all be exercised by the defendant
concurrently and claiming one remedy doesn’t derogate the right to exercise the other.
 RULE 13 AND SETTING ASIDE OF EX-PARTE DECREE

 Restoration of suit in an ex-parte decree

The first key ingredient that must be satisfied in case of restoration application is that such a
decree must come under the purview of Section 2(2) of the CPC.

Under this rule, the defendant can move an application for restoration of suit under this Rule
against an ex-parte decree, on the adjourned hearing or whenever he appears next.

a) First part of the Rule says that the application for restoration can only be “filed in the
court that passed the decree”.
b) Second Part of the Rule explains that it must be brought to the satisfaction of the
court that
(i) Ground 1- “summons was not duly served to the defendant”, or
(ii) Ground 2- “that he was prevented by any sufficient cause from appearing when the
suit was called on for hearing”2,

the court may adjourn the hearing to a later date after imposing costs as it deems fit. Herein,
from the next date, the suit shall not proceed ex-parte and would continue as if the
irregularities had never existed.

 Ground 1. Summons not duly served.

This is the case opposite to what has been envisaged in Rule 6. Rule 6 talks about the defendant
not complying with the summons. However, if he can prove to the court in the adjourned ex-
parte hearing that “summons were not duly served”, the court may pass an order to set aside the
decree passed against such defendant.

2
Rule 13, Order 9, Civil Procedure Code, 1906.
  Ground 2. Giving Sufficient Cause for the Irregularities.

Rule 12: It must be noted that Rule 12 says that if either the defendant or plaintiff is unable to
give “sufficient cause” for their non-appearance, they may not be entitled to restoration of the ex-
parte decree and may be subject to a dismissal of the suit.

Herein, under Rule 13, it must be understood that if the defendant is able to show “sufficient
cause” for non-appearance, it may qualify as a ground to set aside the decree, both under Rule 12
and Rule 13.

In the case of Kamta Prasad v. Jaggiya3, the Allahabad High Court held that the court should
not merely restrict itself to the finding of “sufficient reasons” w.r.t the party’s non-appearance.
Rather, it should go into the “totality of the situation, including the defect in its own procedure”4.

The mere physical appearance of a defendants counsel is not by itself appearance, if the same is
accompanied by deliberate tactics to delay the hearings. However, the same is not a strict rule of
law and may be exercised on the discretion of the court.

 Rule 13, Proviso 1.

This proviso talks about a situations when there are more than one defendants, and a decree has
been passed against “any or all of them”. Here having regard to the nature of such a decree, it
would be only justified, that in almost every case, the route to be taken by the court will be of
setting aside a decree against “any or all the defendants” against whom the decree was passed,
even when the restoration application under the rule was not filed by all the affected defendants.
In the interest of justice, following are the cases when the court may pass such blanket
restoration orders –

a) In cases of a joint and indivisible ex-parte decree has been passed.

b) In case the ex-parte decree is not set aside against all the defendants, it would lead to two
inconsistent decree.
c) In case the ex-parte decree has proceeded on grounds common to all the defendants.

3
Kamta Prasad v. Jaggiya, AIR 1999 All 184
4
Ibid.
 d) In cases when the relief claimed by the defendant in the restoration application cannot be
given otherwise than by setting aside the decree against all defendants.

 Rule 13, Proviso 2.

This proviso talks about the situation when there is an “irregularity in the service of summons”.
This proviso was added by the 1976 Amendment, which set at naught the difference between
illegality and irregularity. It envisages that on proving sufficient notice on part of the defendant
w.r.t the notice of date and hearing to present his side against the plaint, passing of an ex-parte
decree would not be valid.

APPEAL AND RESTORATION APPLICATION UNDER RULE 13.

The subject of appeal under this Rule has a question of controversy before the courts, especially
after the addition of the Explanation I by an Amendment Act of 1977. It says that a defendant is
precluded from filing a restoration application if he has first filed an appeal u/s 96(2) and the
same has been dismissed. However, if he had withdrawn the appeal after filing it, the same
would amount to preserving the right to file the restoration application.

However, there was still dispute about whether a defendant can exercise both the rights of appeal
and restoration application concurrently, even if the appeal has been decided by a court. This
question was then settled in the landmark case of Bhanu Kumar Jain and Archana Jain5,
wherein the Supreme Court gave two utmost important observations –

1) If an appeal is preferred first under Section 96(2) before availing the remedy of
Restoration Application under O9, R13; or in case both the remedies are exercised
simultaneously – it must be noted– that if the Appellate Court in that instance dismissed
the appeal, that order of dismissal will merge with the ex-parte decree passed by the
Trial Court, and hence the defendant’s application of restoration will not be
maintainable.

5
Bhanu Kumar Jain and Archana Jain, 2005 (1) SCC 78.
 2) However, the statutory provision does not bar the defendant to avail the remedy of
appeal when the restoration application under O9, R13 has been dismissed by the court,
since this converse position of law has not been addressed by the Explanation to the Rule
13. Thus, the defendant may avail the remedy of First Appeal after the Restoration
Application has been dismissed.

LIMITATION PERIOD

A restoration application under this Rule must be filed from 30 days from the date of the ex-parte
decree.

RECOMMENDATIONS AND CONCLUSION

 Explanation I of Order 9, Rule 13

It is submitted that owing to the controversy in light of concurrent remedies under rule
13, and the ambiguity posed by the Explanation I, with regard to whether First Appeal
under Section 96(2) can be availed by the defendant after his restoration application is
dismissed, the Legislation must bring another amendment in light of the decision of the
Supreme Court in Bhanu Kumar case and set at naught the extent to which both
remedies can be availed and how much can the court delve into the matter of
merits/reasons of non-appearance of defendants.

 Rule 13 must provide remedy to set-aside the ex-parte decree to the Plaintiff as well.
At present, the Plaintiff under Rule 8, Order 9, only has the remedy of the right to appeal
against to extent of the ex-parte decree. Thus, an amendment must be brought about to
bring the plaintiff on par with the defendant’s position.

Thus, in this essay, it has been justified how Order 9 is nothing but a manifestation of the
Principle of Natural Justice that no one should be left unheard, because even a defendant who
defaults on appearance before the court is given an opportunity to present his case in an
adjourned hearing of ex-parte decree, and consequently in pertinent situation take recourse to a
Restoration of Suit against the ex-parte decree by virtue of Rule 13.