DR.

RAM MANOHAR LOHIA NATIONAL LAW

UNIVERSITY

CIVIL PROCEDURE CODE

FINAL DRAFT

APPEARANCE OF PARTIES AND CONSEQUENCE

OF NON-APPEARANCE
ORDER IX OF CPC

SUBMITTED TO - SUBMITTED BY-

DR. VIPUL VINOD SAMARTH PRATAP SINGH

ASSISTANT PROFESSOR (LAW) ROLL NO: 170101114

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 ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly indebted to Dr. Vipul Vinod for his guidance and constant supervision as well as
for providing necessary information regarding the project & for his support in completing the
project.

I would like to express my gratitude towards my parents and members of Madhu Limaye
Library for their kind co-operation and encouragement, which helped me in completion of
this project.

My thanks and appreciations go to my colleague in developing the project and people who
have willingly helped me out with their abilities.

I welcome any criticism and suggestions by the people who go through it, for the
improvement of my future projects.

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 TABLE OF CONTENTS

1) INTRODUCTION 4
2) RULE 1- 3 5
3) RULE 4 6
4) RULE 5 7
5) RULE 6 8
6) RULE 7-8 9
7) RULE 9 10
8) RULE 10-11 11
9) RULE 12-13 12
10) CONCLUSION 16

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 INTRODUCTION
The provisions 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 conducted to the detriment of any party in
his absence. Order 9 of the code enacts the law with regard to the appearance of the parties to
the suit and the consequences of their non-appearance. It also provides a remedy for setting
aside an order of dismissal of the suit as also the setting aside of an ex-parte decree passed
against the defendant. There are 14 Rules in total which deal with the appearance of the
parties and consequences of non-appearance [1].

An ex parte decree is a decree passed in the absence of the defendant . Where the plaintiff
appears and the defendant does not appear when the suit is called out for hearing and if the
defendant is duly served, the court may hear the suit ex parte and pass a decree against him.
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.

In law, appearance means appearance in person or through advocate for conducting a case.
However, appearance by a pleader within the meaning of CPC does not mean mere presence
in the court, it means “appearance by a pleader” duly instructed and able to answer all
material questions.

In Manibhai Vs. Ambalal[2], it was held that the parties must remain present before the Court
when the matter is called out. The court is not bound to wait for any party. The court would
be justified in disposing of the matter in absence of the party. But when the party appears and
gives satisfactory explanation for not remaining present, the court should take a lenient view
especially when the application for restoration or setting aside ex-parte decree is made on the
same day. The primary concern of the court should be to dispose of the cases before it on
merits so as to see that substantial justice is done. Disposing of the cases on technicalities
especially the absence of a party at a time when the suit is called out, may lead to
considerable injustice. Therefore, the court must consider the application for restoration
especially when it is made soon after the dismissal order in a practical and pragmatic manner
so as to see that the ends of justice are not defeated.

1. C.K. Ta lwani , “Civil Procedure with Limitation Act 1963” , Eastern Book Company,2013, p.275 .
2. 1987(1) GLR 55

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[ O 9, R 1 ] The parties shall be in attendance at the Court-house in person or by their
respective pleaders, on day fixed in summons for defendant to appear and answer and the suit
shall then be heard unless the hearing is adjourned to a future day fixed by the Court.

[ O 9, R 2 ] When summons has not been served upon the defendant on the day so fixed, in
consequence of the failure of the plaintiff to pay the court-fee or postal charges or to present
copies of the plaint or concise statements, as required by rule 9 of order VII, the Court may
make an order for the dismissal of the suit.

In Shri Samat Textile Indusries Ltd v. Naraji Peraj Tpt Co[3], it was held that Rule 2 is a
directive order and is merely an enabling provision and it wasn’t obligatory for court to
dismiss the suit.

In Krishnarao v. Wamarao[4], it was held that where the plaintiff has failed to serve on some
of the defendants, whole of the suit cannot be dismissed.

[ O 9, R 3 ] When the suit is called for hearing and none of the parties appear, the court
may make an order to dismiss the suit.

In New India Assurance Co Ltd v R Sriniwasan[5], it was held that provisions of order 9 do
not apply to proceeding which happen under the Consumer Protection Act.

In Damu v. Vakrya[6], A sues B and C. On the day of hearing A and C do not appear but C
appears for hearing. The court makes an order for dismissing the suit. As between A and B
the order is under rule 8, as to attract the applicability of rule 9. But as between A and C, the
order is one under the present rule so that rule 4 applies, and not rule 9.

In Ram Ranbijaya v. Sakalpat Tewary[7], it was held the unless a date has been fixed for the
appearance of the defendant and neither party appears when the suitr is called on for hearing
on the day fixed, this rule will not apply.

3. AIR 1996 Guj 107.

4. AIR 1950 Mad 188.
5. CA No 11436 of 1996.
6. ILR 44 Bom 767.
7. AIR 1942 Pat 56.

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In Ram Reddy v. Yenka Reddy[8], it was held that there can be no question of a suit being
called on for hearing, unless the parties have been served, and where that has not been done,
the suit cannot be dismissed under this rule for a default of appearance of the plaintiff.

In Hukam Chand v. Mani[9] , it was held that where a judge is absent, the clerk of the court
has no power to fix the date and failure to appear on a date so fixed does not justify dismissal
in default.

ADJOURNED HEARING: This rule applies where there is default of appearance by the
parties at the first hearing. Where default takes place at an adjourned hearing, it is Order 17
that applies [1.]. This rule does not apply after a preliminary decree has been passed and a suit
cannot be dismissed for default of appearance on an application for a final mortgage decree
[11]
. If a tribunal passes an order on the merits in the absence of both parties it is opposed to
natural justice [12].

[ O 9, R 4 ] If the suit is dismissed under Rule 2 or 3, the plaintiff may institute a fresh suit
subject to law of limitation, or apply for an order to set the dismissal aside, or if he satisfies
the court that there was sufficient cause for failure under Rule 2 or 3.

SUFFICIENT CAUSE FOR NON APPEARANCE: Under Oder 9, rule 4 the sufficient
reason is not confined to reason that prevented the party from appearing, and the court has to
look at the totality of the situation, including the defects in its own procedure [13]. A bona fide
[14]
mistake which is not unreasonable is a sufficient excuse within the meaning of this rule .
An order dismissing a suit for default in appearance under rule 3 can be set aside without any
notice to the defendant [15].

8. 1956 ILR Hyd 551.

9. AIR 1934 Lah 984.
10. Phani Bhushan Mookherjee v Phanu Bhushan Mookherjee AIR 1957 Cal 170.
11. Chandra v. Amir (1927) ILR 49 All 592.
12. Madhao Narayan v. Ragho Niloo AIR 1970 Bom 132.
13. Kamta Prasad v. Jaggiya AIR 1999 All 184.
14. Hardatrai v. Victoria France and Bullion Asso (1866) 3 BHCOC 60.
15. Lalit Singh v. Pyarelal AIR 1956 All 714

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In Babu v. Dewan Singh, held that when a suit is restored under this rule, the defendant is
not entitled to a notice of the further hearing, if it had been set ex parte before the suit was
dismissed under rule 3. It has been held that when a court restores a suit dismissed for
default, weather that has the effect of reviving the ancillary orders passed herein before it was
dismissed would depend on the terms of the orders of dismissal and restoration. When the
suit is dismissed without reference to the ancillary orders, then those orders get revived on the
restoration of the suit. But when the order of the dismissal of the suit expressly vacates the
ancillary orders, an order simply restoring the suit has not the effect of reviving them.

RESTORATION NOT FOR SUFFICIENT CAUSE: WRIT ISSUED

An application for restoration under Order 9, Rule 4 must explain non-appearance at the
original hearing. If the reason is not given and the suit is restored after 13 years the High
Court can interfere in writ [16].

The applicant has to establish his bona fide and the court must satisfy that the delay in
moving the application has been reasonably explained. The two remedies prescribed under
Order 9, Rule 4 are not mutually exclusive [17].

[ O 9, R 5 ] (1) When the summon returns unserved and the plaintiff fails to apply for the
issue of a fresh summon for a period 28 days after the date of return made to the court, suit is
dismissed unless plaintiff satisfies the court that

a) Failed to discover residence of defendant, or

b) Defendant is avoiding service of process, or
c) And other sufficient cause for extending the time.

(2) In such case, subject to Law of Limitation the plaintiff may bring a fresh suit.

AMENDMENT: The Amendment Act of 1976, changed the period of one month for the
initial period of 3 months. This has been further reduced to 7 days by the Amendment of
1999 with effect from 1 July 2002.

16. Malti Devi v. Hon’ble Board of Revenue UP AIR 1995 All 26.
17. Re Raja Krishna Pal Singh AIR 1937 Oudh 262.

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PERIOD FROM DATE OF RETURN: In Lakshmi Trading Co v. Shriram Govindram[18]
it was held that, the period is to be calculated from the date of return made by the court by the
officer ordinarily certifying to the court returns made by the serving officer. The rule
prescribes a period of limitation and the court has no power to extend it on a application
presented beyond that period.

[ O 9, R 6 ] (1) Plaintiff appears and Defendant doesn’t appear at hearing

a) When summons served- Suit shall be heard Ex Parte by order of Court.

b) When summons not served- Court shall direct a second summons to be issued and
served.
c) Summons not served in due time- Court shall postpone the hearing of the suit since no
sufficient time for defendant to appear and answer.

(2) When summons not duly served by fault of plaintiff, the Court shall order the plaintiff to
pay the cost of such postponement.

In Sangram Singh v. Election Tribunal[19], Supreme Court discussed the scope of Rule
6(1)(a) and observed that it is ‘confined to the first hearing in the suit and doesn’t per say
apply to subsequent hearings’.

EX PARTE DECREE: The court may proceed ex parte if the summon is duly served and
the defendant does not appear. The court may pass a decree for the plaintiff if he is able to
make a prima facie case. The mere absence of the defendant does not justify that the
plaintiff’s case is true. The amendment of 1976 added a provision that the court has no power
to pass an ex parte decree before the returnable date mentioned in the summons.

In Pattabirama v. Neli[20], Madras High Court held that where a defendant does not appear
after he files the written statement and is declared ex parte, he should not be prevented from
appearing at a later stage when the case is still pending.

18. (1957) ILR 2 Cal 877

19. AIR 1955 425
20. 1927 Mad 1197

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[ O 9, R 7 ] If Court gets adjourned due to ex parte and defendant assigns good cause for
previous nonappearance, he may, upon terms the court directs as to cost or otherwise, be
heard as if he appeared on the original day.

COUNSEL’S AFFIDAVIT: In Delhi Development Authority v. Shanti Devi[21], the

defendant’s counsel filed his own affidavit with an application under Order 9, Rule 7 that he
was busy in his personal matter could not attend the court when called out. This was held to
be a good cause for absence.

LIMITATION: Article 137 of the Limitation Act 1963 applies to application under Rule 7
of Order 9.

In Delhi Development Authority v. Shanti Devi, an ex parte order was made on a certain day,
and on next hearing an application for setting aside that order was made. Held that
application couldn’t be dismissed as it was not filed within 30 days, as no limitation period is
prescribed for such application.

APPEAL AND RES JUDICATA: In Badimeri Pochaiah v. Gatla Akkapalli[22], it was held
that the order of court to refuse to set aside ex parte decree was not appealable. But the fact
that defendant does not arrive at later proceedings does not operate as res judicata to prevent
him from appealing against the main decree.

[ O 9, R 8 ] When only defendant appears, the court may dismiss the suit unless the
defendant admits the claim or part of it, in which case the court shall pass a decree against the
defendant and where part is claimed, the remainder shall be dismissed.

This rule does not apply to case of nonappearance due to death. It is them for the legal
representative of the plaintiff to apply to be bought on record under O 22, R 3.

Similarly the rule does not apply when if the plaintiff is adjudged insolvent before the
hearing, for there is no person who has right to appear, the court should not dismiss the suit,
but should, under O22, R 8 fix a time within which the official assignee may decide to
continue the suit.

21. AIR 1951 1982 Del 159.

22. AIR 1992 AP 42

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When defendant appears nut applies for time, and court dismisses suit for default, the order
falls under this rule and not rule 4.

MORE PLAINTIFFS THAN ONE: This rule provides for a situation where none of the
one or many plaintiffs appear. Rule 10 provides for a situation where some of the plaintiffs
appear and some do not.

EFFECT: Dismissal for default falls under O 9, Rule 8 and not O 17, R 3.

[ O 9, R 9 ] (1)When suit is partly or wholly dismissed under Rule 8 the plaintiff shall be
prevented from bringing a fresh suit. But he may apply for an order to set the dismissal aside
providing sufficient cause for the court to take into consideration upon terms of costs or
otherwise, and appoint another day.

(2) Application has to be served under this rule unless notice has been served to the party.

OBJECT: It is based on well-established jurist principle that no person shall be vexed twice
for the same cause. This provides for restoration of suits dismissed under R 8 for
nonappearance.

ELECTION PETITION: In P Nalla Thampy v. BL Shanker[23], the Supreme Court held

that an application for restoring an election petition which was defaulted would be
maintainable, but it can only be filed by the election petitioner, and not by any respondent.

DIFFERENCE BETWEEN R 4 AND R 9:

a) When suit is dismissed under O 9, R 2 or R 3, a fresh suit can be instituted under R 4.

When suit is dismissed under O 9, R 8 no fresh suit can be instituted due to R 9.
b) No notice is provided to the defendant under O 9, R 4 but for restoration under R 9
notice is must.

SUFFICIENT CAUSE: Must be decided according to question of fact and must be decided
while taking into account its circumstances.

1) Where it was the duty of an attorney’s clerk to examine the board and inform his
master what cases were up for hearing, the clerk neglecting his duty, did not inform
his master, and no one appeared for plaintiff, suit was dismissed; it was held to be a

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 bona fide mistake on the part of clerk and suit was restored on payment by the
attorney of the costs of the hearing: The Orient Corpn v. The Mercantile Corpn
Ltd[24].
2) In two cases the Bombay High Court said that when a party arrives late and finds suit
dismissed before his arrival, he is entitled to have it restored, though there may be no
sufficient cause as long as payment of such cost incurred by reason of his default by
the defendant: Chhota Lal Ambani v. Ambalal[25], Sorabji v. Ramjilal[26].
In a later case it was held that this was solely on the discretion of the Court and there
is no such rule: Currimbhoy v. Moos[27].

EFFECT OF RESTORATION: In Ranjit Singh v. Sarda Ranjan Prasad Sinha(Dr)[28], it

was held that restoration revives all ancillary orders, including the order striking off the
written statement for non-deposit of rent in an eviction suit.

[ O 9, R 10 ]When only some of the plaintiffs appear, the court may permit the suit to
proceed in the same manner if all had appeared, or make an order it thinks fit.

[ O 9, R 11] When only some of the defendants appear, the suit shall proceed, and the court
shall make an order it thinks fit for the non-present defendants.

In Hakim v. Gobind[29], it was held that O 9, R 11 provides for passing of decree against
absent defendants, be it a minor defendant whose guardian does not appear.

23. AIR 1984 SC 135.

24. (1866) 2 BHC 267.
25. AIR 1923 Bom 423.
26. AIR 1924 Bom 392.
27. AIR 1929 Bom 250.
28. AIR 1981 Pat 102.
29. AIR 1948 All 117.

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[ O 9, R 12 ] When there is no sufficient cause for nonappearance of plaintiff or defendant,
he shall fall under rules applicable to plaintiffs and defendants who do not appear.

WHERE PARTY ORDERED TO APPEAR IN PERSON: This rule applies to all cases
where a party has been ordered to appear in person and fails to do so. The court has power to
strike down defence of defendant for nonappearance under O 3, R 1 but this is a highly penal
procedure which cannot be adopted if the defendant disobeys a witness summons.

The court has no power to dismiss the suit of a minor on the ground that his summoned friend
did not appear, but where the guardian of the defendant does not appear, this defence can be
taken down.

[ O 9, R 13 ] When ex parte decree is passed against the defendant, he may apply for an
order to set it aside, and if he proves the court either that the summons was not duly served or
that there was sufficient cause for such delay, the court shall pass an order to set the ex parte
decree aside on terms of costs, payment to court or as it thinks fit, and appoint a future day.

Provided that when decree cannot be set aside such defendant only, it may be set aside for all
defendants or any of them.

Provided that ex parte should not be passed solely on the fact of irregularity of summons, if
satisfied that defendant had notice of date of hearing and sufficient time to appear.

AMENDMENT: Second proviso and Explanation were added by Amendment of 1976.

EX PARTE DECREE- MEANING AND NATURE: Decree passed against a defendant in

abstentia, the decree so passed is legal, valid, operative and enforceable like a bi-parte decree.

In Ganga Ram v. NSIC Ltd[30] it was held that where the defendant resides at a different
place different than the place the newspaper thought through which the service is ordered,
the ex parte decree shall be set aside.

The any case of ex parte decree, the provisions of O 9, R 13 can be invoked.

30. AIR 1996 Del 259 (DB)

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In Gujarat Co-op Oil Seed Grower Federation v. Ramesh Kanta Jain[31] it was held that a
decree, passed at the stage where the statement was no filed under O 8, R 10, amounts to an
ex parte decree and provisions of O 9, R 13.

REMEDIES: In Pragilal Karamsingh v. Khilwansingh[32] it was held that the following

remedies are available in case of an ex parte decree-

1) Appeal from an ex parte decree under S 96.

2) Apply for review of judgement under O 47, R 1.
3) Bring s suit on ground of fraud.
4) Apply to the court by which such decree is passed to set it aside: Order 9 Rule 13.

GROUNS ON WHICH EX PARTE DECREE MAY BE SET ASIDE: Stated in the

second paragraph of the rule, that summons was not duly served or he had sufficient cause for
nonappearance.

Sufficient Cause: Code has not defined this expression. This expression must be liberally
construed and broad view must be taken so court may exercise powers ex debito justitiae.
Sufficient cause for O 9, R 13 has to be an elastic concept and there shall be no hard and fast
rule. Courts have wide discretion and every fact should be taken into consideration. However
absence should be intentional or mala fide.

What is sufficient cause must be decided with reference to facts and circumstances of every
case.

No Valid Guardian: In a suit against minor without a valid guardian, the notice served upon
the guardian is no notice at all, and can be aside on ground of O 9, R 13.

Medical Certificate: Own hospitalisation is a sufficient cause. Obtaining a medical

certificate from private doctor is not a basis for rejecting a claim of sickness of the defendant.

Different Language: In Syed Haisanull v. Ahmad Barq Ali[33] the summons was issued in
English and the defendant did not know English and was unable to understand its content and
remained absent on date of summons. Ex parte decree set aside.

31. AIR 1994 Del 367 (DB)

32. 1946 ILR Nag 586.
33. AIR 1988 Guj 34.

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Failure to file Written Statement: O 9, R 13 applies where disposal is under O 8, R 10.

FIRST PROVISO TO THE RULE: Cases under this fall in two classes-

1) Ex parte against all, but application to set aside decree by only some defendants.
2) Ex parte against some, but not against who appeared and defended the suit and
application to set aside decree by one or more defendant against who decree was
passed ex parte.

In both the cases the question is whether, if the decree is set aside as against the applicant, the
court can set aside as against the applicant, the court can set aside the decree as against the
other defendants also, so as to reopen the whole suit, and if so, in what cases. No provision
was made in the old section as to these cases. The first para of R 13 tells that where ex parte
is passed and court is satisfied about the delivery of summons etc. the court can make an
order to set the decree aside. This does not confer any right on the party. It only vets power in
the court. The proviso says that when decree cannot be set aside for such defendant only, it
shall be passed for all of defendants.

General Rule:

1) Where decree is one and indivisible.

2) Where suit would result in inconsistent decrees, if not set aside against other
defendants also.
3) Where the relief could not be given other than by setting the decree aside the other
defendants as well.
4) Where decree proceeds on a ground common to all defendants.

No Service: In Rampati Devi v. Chandrika Devi[34], it was held that under second proviso
inserted in 1976, a decree passed ex parte cannot be set aside merely on the ground of
irregularity in service of summons if defendant had notice of date of hearing and sufficient
time to prepare. This proviso does not apply when there is no summon as all, it only covers
irregularities. Person claiming benefit under this must satisfy all conditions.

34. AIR 1979 Pat 314, 316.

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Counsel’s Negligence: In Gloria Chemicals v. RK Labels [35], it was held that Counsel’s
negligence is not sufficient to set aside the decree.

Counsel’s Fraud: In Mohan Steel v. UP Financial Corp[36], it was held that ex parte decree
can be set aside if found that counsel had kept the client in dark about the date of hearing.

Appeal: Once availed remedy under this rule, appeal cannot be done on that decree. No
appeal lies from the order granting the application.

Decree for Divorce: in Yallawwa v. Shatavaa[37], Husband obtained decree for divorce ex
parte. Husband died. Wife moved application under R 13 to set aside the decree. Held, she
could apply. Cause of action survived, even after death of husband.

Limitation: Article 123 of Limitation Act governs the application for setting aside ex parte
decree, providing a limitation period of 30 days for the same. The requirements are:

1) Date of decree, or
2) Where the summons or the notice was not duly served, the date of knowledge
of decree.

When summons duly served, limitation period begins from date of decree. But where
summon served but not enough time for defendant to prepare, O 9, R 6(c) allows further
notice to be given, however, no such notice is given, the limitation period begins from date of
knowledge of party about the ex parte decree.

[ O 9, R 14 ] No ex parte decree shall be set aside without notice to opposite party.

35. AIR 1988 Del 213.

36. AIR 1986 All 15.
37. AIR 1997 SC 35.

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CONCLUSION:

1. Where a suit is dismissed under Order IX, Rule 2, or, under Order IX, Rule 3 of the Code,
the plaintiff can bring a fresh suit or else can apply for the setting aside of such an order
of dismissal of suit under Order IX, Rule 4 of the Code.

2. To challenge the order of dismissal of suit under Order IX, Rule 5 of the Code, a revision
under Section 115 of the Code can be preferred[38].

3. When an application is preferred for setting aside an ex parte decree on the ground of
non-service of summons, then, it is obligatory upon the party preferring the application
for setting aside the ex parte decree to disclose the source of knowledge about the passing
of the ex parte[39].

4. Order IX, Rule 7 and Order IX, Rule 13 of the Code operate on varied grounds. Order IX,
Rule 13 of the Code on one hand provides for a mechanism to seek the cancellation of an
ex parte decree finally disposing of the suit, whereas, Order IX, Rule 7 of the Code on the
other hand provides for a mechanism to seek the cancellation of an ex parte.

5. The period of limitation for moving an application under Order IX, Rule 7 of the Code is
3 years; this period of limitation is provided for in Article 137 of the Limitation Act,
1963. This limitation period of 3 years begins to run from the date on which the ex parte
order is passed.

6. Where the suit has been dismissed under Order IX, Rule 8 of the Code, the plaintiff
cannot move in appeal, rather the plaintiff can seek the setting aside of the order passed
under Order IX, Rule 8 of the Code by moving an application before the same court
dismissing the suit under Order IX, Rule 9 of the Code.

7. In the case of, Onkar Singh Angrez Singh[40], it was categorically held that, non-
appearance of counsel on account of strike call is not a sufficient cause for restoration of
suit dismissed in default within the purport of Order IX, Rule 9 of the Code.

8. An order passed dismissing an application preferred under Order IX, Rule 9 of the Code
is appealable under Order XLIII, Rule 1(c) of the Code.

9. An application under Order IX, Rule 13, of the Code for setting aside an ex parte decree
is to be preferred within 30 days from the date of the decree passed ex parte.

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10. An order passed dismissing an application preferred under Order IX, Rule 13 of the Code
is appealable under Order XLIII, Rule 1(d) of the Code.

11. Where an ex parte decree is passed, that is, decree is passed in absence of the defendant,
then, the defendant has the following remedies available to him:

(a) To apply to the court this has passed the ex parte decree to set it aside under Order IX,
Rule 13 of the Code;

(b) To prefer an appeal against the ex parte decree under Section 96 (2) of the Code; and
(c) To prefer review of the ex parte decree under Order XLVII, Rule 1 of the Code.

12. The first proviso to Order IX, Rule 13 of the Code deals with the scenario where a decree
is of such a nature that it has to be set aside against all the defendants despite the fact that
only one applicant applies. These situations are:

(i) where the decree is one and is indivisible;

(ii) where the suit could result into inconsistent decree if the decree is not set aside against
the other defendants also. An example to illustrate situation (ii) is this: P alleges that, Q
and R are in joint possession of an immovable property and sues Q and R seeking a relief
of declaration, stating that, P is in joint possession with Q and R. Q is served with a copy
of summons but R remains un-served. Both, Q and R do not appear on the date of hearing
and an ex parte decree is passed against both, Q and R. R applies for setting aside of the
ex parte decree against him and the decree is accordingly set aside. Thereafter, R is able
to establish that, P has no title to the property and thus, is not entitled to the relief of
declaration sought by him. In such a scenario, there are bound to be two (2)
conflicting/incoherent decrees wherein, in one, P has a decree against Q declaring that, P
is in joint possession with Q and R, and the other, wherein R is able to establish that, P
has no title and that P is not in joint possession with Q and R. In such a scenario, the ex
parte decree obtained by P must be set aside against Q also.

38. Bank of Baroda v. Menubhai Jivanji Patel, AIR 2006 Guj 37

39. Firoz Khan v. Bibi Hasina Khanam, AIR 1994 Pat 103
40. AIR 1993 P&H 134.

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13. No application for setting aside an ex parte decree can be heard and decided without
notice being issued to the opposite party. Thus, the purport of Rule 14 of Order IX of the
Code is that, an application for setting aside an ex parte decree cannot be heard and
decided ex parte.

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BIBLIOGRAPHY:

Mulla- Code of Civil Procedure (Abridged)

Sukumar Ray- Textbook on Code of Civil Procedure

C. K. Takwani- Civil Procedure.

Jain MP- Civil Procedure Code.

W. W. Chitley- Limitation Act.

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