Analysis of Order 9 Rule 13 CPC

An Exposition on Order 9 Rule 13 of the Code of Civil Procedure, 1908: Principles Governing the Setting Aside of Ex Parte Decrees in India

Introduction

The Code of Civil Procedure, 1908 (CPC) provides a comprehensive framework for the conduct of civil proceedings in India. Within this framework, Order 9 Rule 13 stands as a crucial provision, embodying the principles of natural justice by allowing a defendant, against whom an ex parte decree has been passed, an opportunity to have that decree set aside and the suit heard on merits. This rule seeks to strike a balance between the need for expeditious disposal of cases and the fundamental right of a party to be heard (audi alteram partem). An ex parte decree is passed when a defendant, despite service of summons, fails to appear and defend the suit. While the court is empowered to proceed ex parte to prevent undue delay, Order 9 Rule 13 provides a remedy against such a decree if the defendant can demonstrate "sufficient cause" for non-appearance or that the summons was not duly served. This article undertakes a detailed analysis of Order 9 Rule 13, drawing upon statutory provisions and judicial pronouncements, particularly the reference materials provided, to elucidate its scope, application, and the guiding principles for Indian courts.

The Statutory Mandate: Order 9 Rule 13 CPC

Order 9 Rule 13 of the Code of Civil Procedure, 1908, states:

"Setting aside decree ex parte against defendant.—In any case in which 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; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.
Provided further that no Court shall 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 under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree."

The provision thus lays down two primary grounds for setting aside an ex parte decree: (i) non-service of summons, and (ii) existence of "sufficient cause" that prevented the defendant from appearing. The second proviso is significant, as it curtails the right to set aside a decree solely for irregular service if the defendant had actual knowledge of the hearing date and adequate time to appear.

The Doctrine of "Sufficient Cause"

The term "sufficient cause" is not defined in the CPC, thereby vesting considerable discretion in the courts to interpret it based on the facts and circumstances of each case. The judiciary has generally adopted a liberal approach in construing "sufficient cause" to ensure that substantive justice is not sacrificed for procedural technicalities, provided the defendant is not guilty of gross negligence or mala fides.

Judicial Interpretation and Scope

The Supreme Court in G.P Srivastava v. R.K Raizada And Others (2000 SCC 3 54) emphasized that unless "sufficient cause" is shown for non-appearance, the court has no power to set aside an ex parte decree. However, it also cautioned against an "unrealistic and technical approach" that could prolong litigation. The Court, in this case, set aside the ex parte decree on payment of costs, recognizing the need to afford the appellant an opportunity to prove his case. This aligns with the principle that the term "sufficient cause" must be construed liberally to advance substantial justice (Collector, Land Acquisition, Anantnag And Another v. Mst Katiji And Others, 1987 SCC 2 107, in the context of condonation of delay, which is an analogous principle).

In Parimal v. Veena Alias Bharti (2011 SCC 3 545), the Supreme Court elaborated that "sufficient cause" means an adequate or enough reason which is beyond the control of the defendant and prevented them from appearing. The burden of proving sufficient cause lies on the applicant. The Kerala High Court in N.BASHEER v. SIVASANKARA MENON (2023), citing G.P. Srivastava, reiterated that when no negligence or inaction is imputable to the erring party and the absence was not mala fide or intentional, discretion should normally be exercised in their favour, especially if the application is within the statutory time limit. Costs can be imposed to compensate the other side for inconvenience.

The Allahabad High Court in Heera Lal v. State Of U.P. & Another (2015) observed that while improper advice of an advocate may be a good ground, it cannot be accepted as a sufficient cause in all cases. The court must be satisfied that the defendant honestly intended to remain present. Delaying tactics and non-cooperation disentitle a party from seeking indulgence. The Court also noted that "every good cause is a sufficient cause" and the difference lies in the degree of proof required. "Sufficient cause" is a question of fact to be determined in each case.

Factors Considered by Courts

Various factors are considered by courts when adjudicating an application under Order 9 Rule 13 CPC:

  • Bona fides of the applicant: The applicant must approach the court with clean hands. Suppression of material facts can be detrimental, as seen in Sunil Poddar And Others v. Union Bank Of India (2008 SCC CIV 1 558), where the appellants' failure to disclose their prior engagement in civil proceedings was viewed critically.
  • Negligence: Gross negligence or deliberate inaction on the part of the defendant may lead to the dismissal of the application. However, a technical or venial error may be condoned.
  • Advocate's fault: While generally a litigant is bound by the actions (or inaction) of their counsel, in certain circumstances, if the advocate's negligence is established and the party is not personally at fault, it might constitute sufficient cause. However, as noted in Heera Lal v. State Of U.P. & Another (2015), this is not a universal rule. The Andhra Pradesh High Court in Gangina Veera Venkamma v. M. Venkataramayya (1981) did not accept counsel's engagement in another court as a valid ground on the facts of that case, emphasizing that the trial court's discretion is reviewable and must be exercised for right reasons.
  • Illness or unavoidable circumstances: Genuine illness or other unavoidable circumstances preventing appearance can constitute sufficient cause.

Due Service of Summons

The first ground for setting aside an ex parte decree is that the summons was not duly served. Proper service of summons is a cornerstone of natural justice, ensuring that the defendant is aware of the proceedings and has an opportunity to defend.

Importance and Presumption of Service

The CPC, particularly Order 5, lays down detailed rules for the service of summons. The Madhya Pradesh High Court in Lilabai v. Triyoginarayan (1997) stressed that a court, before proceeding ex parte, must cautiously examine the summons and its report, and not blindly accept formal words of service. It is the court's duty to verify that service was effected in accordance with law. Proceeding ex parte virtually denies the right of hearing, and should only be done if the court is convinced of proper service and deliberate absence.

In Parimal v. Veena Alias Bharti (2011 SCC 3 545), the Supreme Court discussed the presumption of service, particularly concerning registered post, under Section 114(f) of the Evidence Act, 1872, and Section 27 of the General Clauses Act, 1897. Refusal to accept summons, if proven, is generally considered due service. The burden of proving non-service or improper service lies on the applicant.

Irregularity in Service v. Non-Service (Second Proviso to Order 9 Rule 13)

The second proviso to Order 9 Rule 13 is crucial. It mandates that an ex parte decree shall not be set aside merely on the ground of an irregularity in the service of summons if the court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. This proviso was highlighted in Sunil Poddar And Others v. Union Bank Of India (2008 SCC CIV 1 558), where the Supreme Court noted that the appellants had been previously served in the civil court before the suit was transferred to the Debts Recovery Tribunal, and summonses were also published in newspapers. The Court emphasized the appellants' duty to stay informed, especially given their prior participation.

Procedural Aspects and Interplay with Other Provisions

Application and Limitation

An application under Order 9 Rule 13 must be made to the court that passed the ex parte decree. The Limitation Act, 1963, under Article 123, prescribes a period of thirty days for filing such an application, from the date of the decree or, where the summons or notice was not duly served, when the applicant had knowledge of the decree. The issue of limitation was touched upon in C.K. Thomas v. Bhavani Amma (1969 SCC ONLINE KER 38) in the context of a final decree passed after an ex parte preliminary decree.

Alternative Remedies and Res Judicata

A defendant against whom an ex parte decree is passed has two remedies: (i) an application under Order 9 Rule 13 CPC, and (ii) an appeal under Section 96(2) CPC. These remedies can be pursued concurrently, but the outcome of one may affect the other. The Supreme Court in Bhanu Kumar Jain v. Archana Kumar And Another (2005 SCC 1 787) extensively discussed this. If an application under Order 9 Rule 13 is dismissed on merits, the issues decided therein operate as res judicata, and the defendant cannot re-agitate the grounds for non-appearance in an appeal against the ex parte decree under Section 96(2). However, the defendant can still challenge the decree on its merits in the appeal. Conversely, if the appeal is dismissed (other than for withdrawal), the Explanation to Order 9 Rule 13 bars a subsequent application under this rule. The Uttarakhand High Court in SMT SUNITA RAWAT v. BHUPENDRA SINGH RAWAT (2017) distinguished the facts of its case from Bhanu Kumar Jain regarding the effect of an order directing a suit to proceed ex parte.

It is pertinent to note that dismissal of a suit for non-prosecution under Order 9 Rule 8 (leading to an application for restoration under Order 9 Rule 9) is not a decision on merits and thus does not operate as res judicata (State Of Uttar Pradesh And Another v. Jagdish Sharan Agrawal And Others, Supreme Court Of India, 2008, discussing O9R9).

Interplay with Order 17 Rules 2 and 3

When a party fails to appear on an adjourned date of hearing, Order 17 Rule 2 CPC empowers the court to dispose of the suit in one of the modes directed by Order 9 or make such other order as it thinks fit. If the court proceeds under Order 17 Rule 2 by adopting a mode from Order 9 (e.g., by proceeding ex parte as per Order 9 Rule 6), then an application under Order 9 Rule 13 would be maintainable. This was discussed in R.P. Bros v. Fakhruddin Siraj Topiwala (Bombay High Court, 2017). The Bombay High Court in Dhanwantrai R. Joshi v. Satish J. Dave (1998) noted the wide discretion under Order 17 Rule 2. The Allahabad High Court in Radha Mohan Datt v. Abbas Ali Biswas (1931 SCC ONLINE ALL 2) considered the effect of its local amendment (Explanation to Order 17 Rule 2) where a party represented by a pleader only for making an application is deemed present, impacting whether a subsequent decree is truly "ex parte" for the purposes of Order 9 Rule 13.

Applicability to Special Proceedings

The principles of Order 9 Rule 13 have been invoked in various special proceedings. For instance, in Continental Construction Ltd. v. Continental Float Glass Ltd. (Delhi High Court, 1997), it was held that Order 9 Rule 13 could apply where an arbitration award was made a rule of court ex parte after objections were dismissed for non-appearance. The Supreme Court in Narender v. Pradeep Kumar (2005 SCC 5 372) dealt with an O9R13 application in the context of eviction proceedings under the Delhi Rent Control Act. The Patna High Court in Manik Roy v. Raghunandan Prasad Opposite Party. (1993 SCC ONLINE PAT 151) also saw an O9R13 application in a rent eviction suit. The Madras High Court, through an amendment (Rule 15 to Order 9), made Rules 6, 13, and 14 applicable to certain execution proceedings (Munikrishna Reddy v. S.K Ramaswami And Another, Madras High Court, 1968).

However, a distinction may arise, as in D.M Krishnadas v. T. Chathu & Others (Kerala High Court, 1989), where the court considered whether a decree passed under Order 8 Rule 10 (where a party fails to present a written statement) can be treated as an ex parte decree for the purpose of Order 9 Rule 13, suggesting it might not be, absent specific extension of Order 9 procedures.

Appealability of Orders under Order 9 Rule 13

An order rejecting an application to set aside an ex parte decree is appealable under Order 43 Rule 1(d) CPC. The Calcutta High Court in P.C Ray [India] Pvt Ltd.… v. B. Bose Private Limited…. (1966) affirmed that an appeal against an order refusing to set aside an ex parte decree is maintainable even if no appeal is preferred against the ex parte decree itself. Conversely, an order setting aside an ex parte decree is generally not appealable under Order 43, but the Bombay High Court in Dev Sha Corporation, Mumbai v. Shree Ram Mills Ltd., Mumbai (2009 SCC ONLINE BOM 468) held such an order to be a "judgment" within the meaning of Clause 15 of the Letters Patent and thus appealable, as it vitally affects the rights of the plaintiff. The maintainability of appeals or revisions in rent control matters was discussed in Tirlok Singh Anand v. M/S Prem Chand & Sons And Others (Punjab & Haryana High Court, 2012).

Restitution upon Setting Aside an Ex Parte Decree

If an ex parte decree is set aside, any benefit derived by the plaintiff under that decree may be subject to restitution under Section 144 CPC (S.M Deshmukh…Applicant; v. Ganesh Krishna Khare…Opponent., Bombay High Court, 1973).

The Overarching Principle of Natural Justice

The entire edifice of Order 9 Rule 13 is built upon the principles of natural justice, primarily the right to be heard. The Supreme Court in Sangram Singh v. Election Tribunal, Kotah (1955 AIR SC 425), while dealing with election tribunal proceedings, emphasized that procedural laws are designed to facilitate justice, not to penalize parties for minor lapses. The discretion to proceed ex parte must be exercised judiciously. Though not directly on O9R13, its spirit underscores the importance of affording a hearing. Similarly, the Company Law Board in Arjun Singh v. Mohindra Kumar (2011) noted that an ex parte order without hearing violates natural justice, though it also considered res judicata if an order is on merits.

Conclusion

Order 9 Rule 13 of the Code of Civil Procedure, 1908, serves as a vital safeguard against the potential harshness of ex parte decrees. It ensures that a defendant who, for genuine reasons, was unable to appear or was not properly informed of the proceedings, gets an opportunity to present their case. The judiciary, through a catena of decisions, has interpreted "sufficient cause" liberally, yet with caution, to prevent abuse of process by recalcitrant defendants. The emphasis remains on substantial justice, ensuring that a party with a meritorious defence is not shut out due to procedural defaults, provided their conduct is bona fide and they approach the court promptly. The careful balancing of the defendant's right to be heard against the plaintiff's right to an expeditious resolution of the dispute is the hallmark of this provision. Courts are expected to be vigilant in ensuring due service of summons and to exercise their discretion under Order 9 Rule 13 judiciously, always keeping in mind the ultimate goal of rendering justice on merits.