Setting aside exparte
Shumaila Altaf
(Querist) 30 April 2013
This query is : Resolved
if I do not move an application under order 9 rule 7 for setting aside exparte proceedings, can i still join and contest. can i lead evidence too.
Advocate M.Bhadra
(Expert) 30 April 2013
You can file an application under order 9 rule 13 CPC and after passing of ex-parte decree if 30 days passed then you should also file a petition under sec.5 of Limitation Act for condonation of delay.
ORDER 9 RULE 13 CPC : 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 sent aside as against all or any of the other defendant 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parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule of setting aside the ex parte decree.
LIMITATION ACT Article 123 Setting aside ex-parte Decree----------30 days
5. Extension of prescribed period in certain cases.- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after the prescribed period if the appellant or, the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Shumaila Altaf
(Querist) 30 April 2013
You have misunderstood my question Mam.I meant to ask that if i am set in exparte, can i lead evidence without setting aside the exparte order.
Devajyoti Barman
(Expert) 01 May 2013
If judgment is passed ex parte, how could you lead evidence?
After passing of judgment, contested or ex prate there is no chance to lead evidence.
Devajyoti Barman
(Expert) 01 May 2013
Well, you have misunderstood the gender of expert who replied prior to me.
Shumaila Altaf
(Querist) 01 May 2013
No mam, I'm asking about 'proceedings' not 'judgement'.. I know for an exparte decree i can easily invoke order 9 rule 13 for setting aside exparte decree. i am talking about order 9 rule 7.
Devajyoti Barman
(Expert) 01 May 2013
You seem to have no idea about how to determine one's gender.
Devajyoti Barman
(Expert) 01 May 2013
If your petition u/o 9 rule 7 is allowed then you would contest the case as usual.
prabhakar singh
(Expert) 01 May 2013
shumaila!
Not Addressing you as SIR or MAM.
As you yourself is not capable to distinguish sex based on name or photographs of experts.
Coming to query:
When defendant is found served and even then does not put appearance nor does file Written Statement,the Court orders suit to proceed exparte against such defendant.That means thereafter only plaintiff would lead evidence and shall be given hearing.
So unless the defendant ordered exparte does not get the order set aside,he can not file Written Statement in reply to suit,nor can he file or produce evidence nor can he submit his argument in defence.
However, even an exparte defendant can cross examine plaintiff witnesses and can make submissions to show that plaintiff has failed to prove his case on it's own.
R.K Nanda
(Expert) 01 May 2013
agree with experts.
Raj Kumar Makkad
(Expert) 01 May 2013
Unless ex-parte order is not set aide, you cannot take part in the case proceedings.
Shumaila Altaf
(Querist) 01 May 2013
oh pardon me for addressing you as mam, guess I was pre occupied with something else. all of seem to agree that I cannot lead evidence unless the expartee proceedings are set aside.however, i have a dissenting opinion based on some beautiful judgement. if only you could enlighten me more after going through the said judgements..
Shumaila Altaf
(Querist) 01 May 2013
The plaintiff who has Preferred this civil misccllaueous appeal contends that the view taken by the court below cannot he supported as the order on the second defendant's application was not one setting aside a decree passed ex parts. According to the appellant all that the second defendant could claim was an opportunity to cross-examine the witnesses examined during the Period of his non-appearance.
3. Several decisions were cited by both sides most of which deal with the effect of an order setting aside a decree passed ex parte. It is unnecessary to refer to those decisions as this is not a case of setting aside an ex parte decree. Wallace, J., considered the effect of an order under Order 9, Rule 7, Code of Civil Procedure, in Venkatasubbiah v. Lakshminarasimhan, 49 Mad LJ 273 : (AIR 1925 Mad 1274) and observed:
"One cardinal principle to be observed in trials toy a court obviously is that a party has a right to appear and plead his cause on all occasions when that cause comes on for hearing. It follows that a party should not be deprived of that right, and in fact the court has no option to refuse that right, unless the Code of Civil Procedure deprives him of it. Is there any rule of procedure then which gives power to a court to say to a party when he appears to plead his case that it cannot heat him because at the previous hearing he was absent? I do not so read Order 9, Rule 7. That applies to a Party who wishes to be relegated back to the position which he would have been in if he had appeared at a previous hearing at which he was absent, and who wishes the Proceedings taken in his absence to be taken over again in his presence, so that he may regain the opportunities of cross-examination, etc., which he lost by his absence. After all "ex parte" only means that the party has not been heard because he was absent and the adjournment of the Rearing "ex parte" in. the words of Rule 7 applies only to the heaving on the particular day when that hearing and adjournment "ex parte" was made. I do not sec any ground for extending its operation to all subsequent hearings of the suit".
This decision was considered in Perumal v. Kondamma, AIR 1939 Mad 385. Varadachariar, J., held:
"........ .Among the authorities referred to by the District Munsiff it is sufficient to refer to the judgment of Wallace, J., in 49 Mad LJ. 273: (AIR J.925 Mad 1274). The principle enunciated by the learned Judge is that even a defendant who fails to show good cause for his previous non-appearance is not debarred from participating in the further conduct of the case and that the original order only covers the Period during which the party was originally absent. He proceeds to point out that where good cause for non-appearance is shown, the party would be relegated back to the position which he would have been put in if he had appeared at the previous hearing i.e., that proceedings which have taken place in his absence could be re-opened so as even to give him the opportunity of cross examining witnesses that had been examined in his absence. This principle has generally been adopted in most of the reported cases vide Pattanna v. Neeli Chetti, ILR 51 Mad 597: (AIR 1927 Mad 1197): Arumugam Pillai v. Kandaswami Pillai, AIR 1928 Mad 211 (2); and Harba v. Mt. Chandrabhaga, AIR 1931 Nag 122, The extreme view taken in Oudh is opposed to the Preponderance of authority".
The decision of Wallaee, J., was followed by Staples, A, J. C., in AIR 1931 Nag. 122. The learned Judicial Commissioner has pointed out the remedies open to a party who failed to appear at the first hearing and against whom an order declaring him ex parte has been passed. The following passage from his judgment may be extracted:
"........ ....Order 9, Rule 6, is not meant to be a penal clause but is only meant to prevent undue delay. If the defendant chooses not to appear after he has been served, the court may proceed in his absence, but if he subsequently appears he ought not to be debarred from taking any further Part in the proceedings even if he can show no good cause for his absence: all that the Code says in Order 9, Rule 7, is that, if he does show good cause, the ex parte order may be set aside and the defendant heard in answer to the suit, as if he had appeared on the date fixed. That means that the case is put back to the stage at which it had arrived when the defendant first failed to appear; and the defendant suffers no loss or disadvantage through his non-appearance except perhaps an order for costs. If however the defendant fails to show good cause, he cannot claim any rehearing, and what has already taken place in his absence must stand. As regards future proceedings however he should not he debarred from appearing and contesting the suit.
The case of an ex parte decree is of course different, because there the suit has been heard and has been finally decided. It would be inequitable then to reopen the matter unless the defendant can show good cause for his non-appearance. Where however a case is still sub judice, the defendant should not, I think, be further prejudiced by his absence than by the fact that all proceedings that took place in his absence will stand and he should be allowed to take part in future proceedings and to defend the case. An ex parte order does not in itself mean that the defendant shall be debarred for ever from taking all Part in the trial: all it means is that the trial shall proceed in his absence and that anything that takes place in his absence shall hold good. A decree however is in its nature final and when an ex parte decree is passed, there can be no question of any future appearance by the defendant who has now become a judgment-debtor; and, unless he can show good cause for his non appearance, the decree will stand unless and until it is set aside on appeal."
Devajyoti Barman
(Expert) 02 May 2013
I fail to understand hoe this ' beautiful' judgment states something which is not advised above.
Shumaila Altaf
(Querist) 02 May 2013
you said only if my application under order 9 rule 7 was allowed, i could contest.. but this judgement says that even if my application is not allowed or even if i choose not to move any application for setting aside the exparte proceedings, i can join and contest.
"f however the defendant fails to show good cause, he cannot claim any rehearing, and what has already taken place in his absence must stand. As regards future proceedings however he should not he debarred from appearing and contesting the suit."
