Moreover , The defendant, against whom an ex parte decree has been passed, has the following remedies available to him:
(1) Apply to the court by which such decree is passed to set it aside: Order 9 Rule 13; or
(2) Prefer an appeal against such decree: Section 96(2) (or to file a revision under Section 115 where no appeal lies);
(3) Apply for review: Order 47 Rule 1; or
(4) File a suit on the ground of fraud.
The above remedies are concurrent and they can be prosecuted simultaneously or concurrently. “Where two proceedings or two remedies are provided by a statute, one of them must not be taken as operating in derogation of the other.”
In Ajudhia Prasad v. Balmukund, it was also ruled that “where two proceedings or two remedies are provided by a statute, one of them should not be taken as operating in derogation of the other.”
In Sunderlal v. Nandramdas, it was observed that though the Act does not give any power of dismissal, it is axiomatic that no court or tribunal is supposed to continue a proceeding before it when the party who has moved it has not appeared nor cared to remain present. The dismissal, therefore, is an inherent power which every tribunal possesses. This was approved in Dr. P. Nalla Thampy v. Shankar. In New India Assurance v.Srinivasan, it was held that every court or judicial body or authority, which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the court or, for that matter of a judicial or quasi judicial body. In the absence of the complainant, therefore, the court will be will within its jurisdiction to dismiss the complaint for non prosecution.
The case of Martin Burn Ltd. v. R.N. Banerjee, discussed the application filed before the Labour Appellate Tribunal for the discharge of employee – It further questioned whether the Tribunal had the jurisdiction to set aside ex parte order and restore application under the Code of Civil Procedure, 1908 – The Court ruled that the said Tribunal had jurisdiction to set aside ex parte order and restore the application to its file.
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 section 96(2) of the Code. A controversial and somewhat 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 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 is 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 only consider the question whether the decree was wrong in law while the other view is that the appellate court has the 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 is much more acceptable and preferable, particularly when appeal is continuation of suit and re hearing of the matter.
Appeal does not lie from an order granting an ex parte decree set aside.
REVISION
An order setting aside an ex parte is a “case decided” within the meaning of Sec.115 of the Code and is therefore, revisable. A High Court may also exercise supervisory jurisdiction under Art.227 of the Constitution in appropriate cases.
REVIEW
Since all the remedies against an ex parte decree are concurrent, an aggrieved party can also file an application for review if the condition laid down in Order 47 Rule 1 are satisfied.
SUIT
A suit to set aside an ex parte decree is not maintainable. But if an ex parte is alleged to have obtained by the plaintiff by fraud, the defendant can file a regular suit to set aside such decree. It is settled law that fraud vitiates the most solemn transactions. In such suits, the owner is on the party who alleges that the ex parte decree passed against him was fraudulent.
MISCELLANEOUS
Person claiming joint tenancy cannot maintain application to set aside ex parte decree against individual tenant. Where an application to set asideex parte decree is dismissed and that is not challenged in the appeal then the appeal against the decree cannot be put forward. The question regarding the ex parte nature of decree cannot be agitated.
The ex parte decree of Small Cause Court can be set aside only if amount under judgment is deposited in Court or leave has been obtained to furnish security. Considering the averments made in the application to recall particularly, the ground of illness of advocate on record and illness of the son of the other Advocate whom he had requested to make a mention before the Court at the time calling of case, absence of lawyers was for reason beyond its control. It cannot be passed by the appellate court as a matter of course. Application under Order IX Rule 13, CPC cannot be remanded. It is the duty of the litigant to contact the Advocate. Plea that the Advocate did not inform him about ex parte decree is not ground to set aside the ex parte decree. Delay on the part of the Advocate in preparing and tendering application is a sufficient cause to set aside ex parte decree. No decree shall be set aside without notice to the opposite party.
CONCLUSION
In every civilized society there are two sets of laws, mainly substantive laws and procedural laws. Substantive laws determine the rights and obligations of citizens. Procedural laws prescribe the procedure for the enforcement of such rights and obligations. Of the two, substantive laws are no doubt more important. But the efficacy of substantive laws actually depends upon the quality of the procedural laws. Unless the procedure is simple, expeditious and inexpensive, the substantive laws, however good, are bound to fail in their purpose and object.
The Civil Procedure Code is an indispensable instrument of the country today to tackle the problems in procedure regarding civil judicial administration. The Code has served the country in more ways than anticipated by its makers. There have been several amendments and there is scope for new amendments in the Code. The concept of appearance and non-appearance of parties have been given space in the Code respecting the principles of natural justice, fair play etc. Each party gets his rightful chance to defend himself and present his case before the court. The doctrine of fair hearing is also implied in this topic. Audi alteram partemwhich literally means “hear the other side” has everything to do with this portion of the Civil Procedure Code, 1908.
The defendant is served the summons to appear before the court and submit to the jurisdiction of the court. The summons is a way of informing the defendant about the complaint by the plaintiff and the date of hearing of the suit. The defendant is bound by the summons to appear in court either personally or through his legal representatives on the date prescribed in the summons. If the defendant fails to appear he should prove that there was “sufficient cause” for his non-appearance. There is no standard rule laid down for judging what is ‘sufficient’ and what is not. It depends on the facts and circumstances of each case. Order IX elaborates on the procedure to be adopted by the court and the course of law to be followed in different situations which have been dealt with in detail in this project. The concept of ex parte decree belongs particularly to Order IX of Civil Procedure Code, 1908 only.
