Code of Civil Procedure, 1908 , Order 9 Rule 13, Order 9 Rule 6 (a) and Order 17 Rules 2 and 3 - Application for setting aside of the preliminary decree where the defendant was proceeded exparte at the stage of defendants evidence - Such de-cree was an "ex parte decree" within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13.
Plaintiff's evidence was recorded and his case was closed and defendants were placed ex parte on the date when the case was fixed for recording defendants' evidence but the same was not recorded due to the defendants' absence – Court proceeded ex parte against them and proceedings in the suit continued as ex parte against the defen-dants - Plaintiff got himself re-examined in the proceedings, however, was not re-cross examined - Trial Court passed a preliminary decree against the defendants – Application filed under Order 9 Rule 13 of the Code, for setting aside of the preliminary decree - Since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Order 17 Rule 3 (b) read with Order 17 Rule 2 of the Code for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order 9 of the Code or could have made any other order as it thinks fit - Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree - Such decree was an "ex parte decree" within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants. 2019 SCeJournal 398
CPC Order 9, Rule 13 – Ex-parte decree passed – Party has two options:
a. The first is to file an appeal
b. The second is to file an application under Order IX Rule 13
Defendant can take recourse to both the proceedings simultaneously - The right of appeal is not taken away by filing an application under Order IX Rule 13 - But if the appeal is dismissed as a result of which the ex-parte decree merges with the order of the Appellate Court, a petition under Order IX Rule 13 would not be maintainable - When an application under Order IX Rule 13 is dismissed, the remedy of the defendant is under Order XLIII Rule 1 - However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal under Section 96.
(2018-4)192 *PUNJAB LAW REPORTER* 71
EX PARTE ORDER – RIGHT TO PARTICIPATE
(2018-4) PUNJAB LAW REPORTER 320 (P&H)
CPC O. 9, R. 7 – Application for setting aside of ex parte order as also revision petition dismissed- Petitioner would still be entitled to participate in the proceedings from the stage at which the appearance was entered - He has the right to participate in the proceedings, to cross-examine and if necessary, to lead evidence in rebuttal.
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