Author: Rakesh Kr. Chaurasiya

Introduction

The provision of the Code of Civil Procedure are based on a general principle that as far as possible no proceeding in a court of law should be connected to the depriment of any party in his presence. Every Court proceeding commences with the appearance of both the parties or their legal representatives. The parties need to appear before the judge, otherwise, the parties might face adverse effects from their non- appearance. If any party did not get the opportunity to present their statement in court, it would be a violation of natural justice. Therefore, Order 9 of the Code of Civil Procedure, 1908, deals with the appearance and non-appearance of the party.

Meaning

‘Audi alteram partem’ is a latin phrase that means ‘listen to both sides’ and it is one of the Principle of natural justice. Every party has a right to a fair hearing. If any party does not appear on the prescribed date, the court will issue summons and notices to appear before the court. When, during the proceedings of civil suit, a plaintiff was present and the defendant was not present and the summons was issued, then the court could proceed against the defendant and pass an ex parte decree. The court has jurisdiction to pass an ex parted decree under Order 9 Rule 6 of the Code.

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.

Object

Ordinarily, every litigation should be considered on merits and all questions should be adjudicated in presence of both the parties. As a matter of practice, it should not be terminated or adjudicated by default, either of the plaintiff or of the defendant. The cause of justice requires that as far as possible, disputes between the parties should be resolve in their presence.

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 (O9 R13);
2. to prefer an appeal against such decree (section 96(2) CPC) or to file revision under section 115;
3. to file for review (O47 R1 r/w Section 114)
4. to file on ground of fraud.

In Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626, the Court held that where two proceedings or remedies are provided by a statute, one of them must not be taken as operating in derogation to another, therefore all the above remedies are concurrent and they can be taken up simultaneously subject to the provisions of the Code.

1. Setting aside of Ex parte Decree

Order 9 Rule 13 provides for setting aside an ex parte decree against the defendant. Defendant may apply to the court which passed the decree to set aside the same on following grounds:

1. The summon was not duly served on him, or
2. He was prevented by any “sufficient cause” from appearing when the suit was called out for hearing.

If the court is so satisfied, it will set aside the ex parte decree and appoint a day for proceeding with the suit.

1. Summons not duly served: If the defendant satisfies the court that summons was not duly served upon him, the court must set aside the ex parte decree. However, according to second proviso of O9 R13 of the Code, the court will not set aside an ex parte decree merely because of irregularity in the service of summons if the defendant had adequate notice of the date of hearing and has sufficient time to appear and answer plaintiff’s claim, decree cannot be set aside.

2. Sufficient Cause: The expression ‘sufficient cause’ is not defined inn the Code. It is a question of fact depending upon the factual matrix of each case. Sufficient cause means that the party has not acted in any negligent manner or there was want of any Bonafide on its part in view of facts and circumstances of the case.

In G.P. Srivastava v. R.K. Raizada, AIR 2000 SC 1221, the Supreme Court held that the expression ‘sufficient cause’ must be liberally construed in order to do complete justice between the parties.

In Perimal v. Veena, AIR 2011 SCC 545, the Supreme Court held that to determine the application under O9 R13 CPC, the test has to be applied whether the defendant honestly and sincerely intended to remain present where the suit was called on for hearing and did his best to do so.

Good Cause vs Sufficient Cause: O9 R7 uses the term ‘good cause’ while O9 R13 uses the term ‘sufficient cause’. The Supreme Court in Arjun Singh v. Mohinder Kumar, AIR 1964 SC 993, held that there is no material difference between the expression ‘good cause’ and ‘sufficient cause’. There cannot be a good cause which is not sufficient cause and vice-versa.

Burden of Proof: The burden of proof that there was ‘sufficient cause’ for non- appearance is ono the defendant. But it is enough if he proves that he attempted to remain present when the suit was called on for hearing.

Sufficient Cause: Illustrative cases

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

1. Bona fide mistake as to the date of hearing;
2. Sickness of counsel;
3. Fraud of the opposite party;
4. Imprisonment of party;
5. Death of relative of party, etc.

Limitation:

An application for setting aside ex parte decree can be made within 30 days from the date of the decree.

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 of circumstances have been changed, a second application would be maintainable.

Extent of Setting aside ex parte decree:

As a general rule, the Court will set aside the decree against such defendant or defendants who made the application. But proviso to Rule 13 lays down that if the decree is of such a nature that cannot be set aside against such defendants also. Once the decree id set aside, the suit is restored and the court will proceed to decide the suit as it stood before the decree.

2. Appeal against ex parte decree

An appeal lies against an order rejecting an application to set aside ex parte decree. As stated party can also file an appeal under section 96(2) of the Code. According to section 96(2) of the Code, an appeal may lie from an original decree passed ex parte.

In Bhivchandra Shankar More v. Balu Gangaram More and others, (2019) 6 SCC 387, the Supreme Court held that the right to appeal is a statutory and substantive right of the party and such rights cannot be taken away from the defendant. Hence, the defendant can use both the remedies application under O9 R13 and the appeal under section 96(2) of the Code.

3. Dismissal of appeal against ex parte decree

Explanation to rule 13 provides that where an appeal against an ex parte decree has been decided by the court on any ground other than withdrawal of such appeal, an application to set aside such ex parte decree will not lie.

In Bhanu Kumar Jain v. Archana Kumar and Ors, (2005) 1 SCC 787, the 

Supreme Court held that though after dismissal of an appeal under section 96(2) of CPC against ex parte decree, application under O9 R13 CPC will not be maintainable, there is no bar on unsuccessful defendant adopting both the remedies simultaneously. In such a case, if the regular appeal against the decree is dismissed, the application under O9 R13 CPC cannot proceed.

4. Revision application under section 115 CPC

When there is no appeal available against the decree, the defendant can file a revision application under section 115 of the Code in the High Court. The High Courts have been given revisional authority to provide the aggrieved party with a remedy if the justice process is hampered by statutory mistakes.

In the case of Chandu S/o Jagannath Ambekar v. Digambar S/o kisanrao Kulkarni, 2004 (4) mhLJ, the Bombay High Court held that an application under section 115 of CPC is no maintainable because it can be only when the aggrieved party does not have a remedy to file an appeal under section 96(2) of the Code and when the final Order has been passed.

5. Review application under Order 47 Rule 1 CPC

The defendant can apply to O47 R1 and section 114 of the Code to review the order passed by the court. A review application can be filed when there is some new evidence discovered, any fault discovered by the court, or any sufficient cause. Any aggrieved party can file a review application against whom a decree has been passed and an appeal is allowed from that decree, but no appeal is filed. A review application shall be filed within 30 days after the decree has passed.

In the case of Union of India v. Naresh Kumar Badrikumar Jagad & Ors., (2018) 12 SCC 170, the Supreme Court held that any person who is affected by the judgement can take the remedy of a review petition.

6. Suits on the grounds of fraud

A defendant can file a suit if the plaintiff obtained an ex parte decree by committing fraud against the defendant. The burden of proof is on the defendant to prove in the court the ex parte decree has been passed fraudulently.

If it is proved in the court that the suit filed by the plaintiff does not disclose the cause of action or the suit is barred by the limitation Act, the court can reject the plaint filed by the plaintiff.

In S.P. Chengalvaraya Naidu v. Jagannath, AIR 1994 DC 853, the Supreme court held that a decree obtained by fraud is a nullity and can be challenged at any stage.

Landmark Cases

1. Sangram Singh v. Election Tribunal, Kotah, AIR 1955 DC 425:

The plaintiff did not appear in an election Petition an ex parte decree was passed. The Supreme court held that the CPC is designed to advance justice and not to defeat it. An ex parte decree is valid if the defendant had due notice and failed to appear. However, if there was no proper service of summons, such a decree can be set aside under Order 9 Rule 13 of CPC.

2. Arjun Singh v. Mohinder Kumar, AIR 1964 SC 993:

Defendant was absent on the date of hearing and the suit was decreed ex parte. The court held that an ex parte decree can be set aside only under O9 R13, not under section 151 of the code. Once a hearing starts ex parte, the defendant has no right to reopen the case except by satisfying 

Rule 13 conditions. The court further held that procedural remedies are specific, general inherent power under section 151 cannot override the express provisions of CPC.

3. Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787:

After an ex parte decree, the defendant filed an appeal and simultaneously applied to set it aside. The court held that defendant can either file an appeal against the decree or apply under Order 9 Rule 13 to set it aside, but not both simultaneously.

4. Parimal v. Veena @ Bharti, (2011) 3 SCC 545:

A husband obtained an ex parte divorce decree, the wife challenged it for lack of notice. The court held that for setting aside, the defendant must prove ‘sufficient cause’ for non- appearance. Sufficient cause means honest and reasonable explanation, not mere megligence.

5. C. Prabhakar Rao &Ors. v. Sama Mahipal Reddy & Ors., 2025 INSC 311:

A High Court restored a suit after condoning delay without deciding the ex parte decree issue. The Supreme Court held that delay condonation and setting aside an ex parte decree are two distinct proceedings. Courts must separately adjudicate both under the Limitation Act and CPC. The court further held that even after delay is condoned, an ex parte decree is not automatically set aside, but merits must be examined under Order 9 Rule 13 of the code.

Conclusion

The appearance of the parties in court is essential. If both parties were not present, the court could dismiss the suit. If the defendant ignores the court’s notice and not present there, the court will pass an ex parte decree in the favor of the plaintiff but however, there are remedies available to the defendant to show ‘sufficient cause’ and set aside the ex parte decree.

A fair hearing is the principle of natural justice, and the court will make sure that no injustice will be done to any of the parties.

Reference:

1. Takwani C.K., Civil Procedure with Limitation and commercial Courts, Eastern Book Company (EBC), 10^th ed. 2024, p. 267-284.
2. The code of Civil Procedure, 1908, Bare Act, available at: https://www.indiacode.nic.in (last accessed on 8^th Oct, 2025)
3. Ex parte decree in CPC, available at: https://www.drishtijudiciary.com ( last visited on: 9^th Oct, 2025)
4. Dr Singh Avtar, The code of civil procedure, Central Law Publication, 5^th ed. 2019, p. 185-205.
5. Raksha Yadav, Legal Article blog: Order 9 Rule 13 CPC, available at: https/:blog.ipleaders.in (last accessed on: 8^th October, 2025) 
6. Samarth Agrawal & Shreya Bhargava, Comprehensive study material, Samarth agrawalAgrawal Books LLPvolLLP, vol.2, 3^rd ed. 2024,ed. 2024, ISSN: 9788197750540, p. 461-468.