Generally, Courts attempt to understand the stance of both parties before announcing decisions. The maxim, 'Audi Alteram Partem', meaning "listen to both sides" encompasses this duty of the court. Both parties have a right to fair trial and can make their standpoint recognised by the Court according to the principles of natural justice. However, there are times where one of the parties is not present for the trial and the Court issues an ex parte decree (the Latin term 'ex parte' means "from one party"). In the Code of Civil Procedure (CPC), the procedure for ex parte trial and granting of an ex parte decree is provided by Order IX Rule 6.

When is an Ex Parte Decree Issued?

If during the civil proceedings the plaintiff appears before the court, and the defendant does not, the CPC provides a list of possible courses of action in Order IX Rule 6. When the summons (as governed by Order V) are duly served, and yet, the defendant does not appear to Court, the suit is heard ex parte, and an ex parte decree is issued. If, however, it is found that the summons were not duly served, the Court will direct a second summons to be served to the defendant.

Instead, if summons were served but were not served in sufficient time before the next date of hearing, then the hearing of the suit will be postponed to another date and the Court will direct the officials to notify the defendant of the new date of hearing. In another scenario, if it is due to the default of the plaintiff that summons were not duly served to the defendant then the Court will order the plaintiff to pay costs for the postponement of date. The plaintiff in many cases may default by not providing the correct address or contact of the defendant to the court, or by providing no details at all.

Additionally, as per Order VIII Rule 10, the Court has the discretion to pass an ex parte decree if the written statement is not submitted by the defendant on time. Under Order VIII Rule 1, it is clear that the defendant has a time limit of 30 days from the date of service of summons within which, he/she has to submit the written statement. This deadline can be extended, but not more than 90 days. If the defendant still fails to file the written statement, the Court may pass an ex-parte decree.

What Remedies are Available to the Defendant?

Once the Court issues an ex parte decree, the defendant has a number of remedies against such a decree. As per Order IX Rule 13, the defendant can apply to the Court to set aside the decree passed in his absence. For this, he/she needs to prove that summons were not duly served, or that there was a sufficient cause due to which he/she could not appear in Court on the fixed date of hearing. It was clarified by the Apex Court in the case of Parimal v. Veena @ Bharti[1], that 'sufficient cause' means that the party did not act negligently, and he/she had a bona fide will to be present for the case.

This judged based on the facts and circumstances of the case. If the justification of the defendant seems valid to the Court, then the ex parte decree can be set aside with conditions like costs or payment to the Court. It must be noted that an ex parte decree cannot be set aside due to a mere irregularity in the service of summons if it is known that the defendant was aware about the date of hearing and had sufficient time to appear. Furthermore, as per Order IX Rule 14, it is compulsory for the Court to serve notice to the opposite party if an ex parte decree is set aside.

Generally, the aggrieved party in a case also has the option to apply for review, revision and appeal. Section 96(2) of the CPC explicitly states that ex parte decrees can be appealed against in any court competent to hear appeals. Generally, such cases are heard in a special bench of the High Court. In the case of Bhivchandra Shankar More v. Balu Gangaram More[2], the court established that the right to appeal is the statutory right of parties and therefore, a defendant can use both the right to appeal and an application against Order IX Rule 13 at the same time.

The defendant can also apply for the revision of the case as per Section 115 of CPC. This is in cases where an appeal is not possible, and the Court that passed the decree has, or has failed to, exercise powers under its jurisdiction or has acted illegally or with material irregularity. Accordingly, the High Court can revise the case by studying the matter through case files and rectifying any jurisdictional errors by the subordinate Courts.

Besides, the defendant has the right to file a review application under Order XLIV Rule 1 and Section 114. This recourse is available to an aggrieved party when no appeal has been preferred. In this case, the same court relooks the case and attempts to provide an extra layer of protection against a wrongful decree. The application for review must be filed within 30 days after the decree is passed. The Court in Chajju Ram v. Neki[3] specified that a review application can be filed if there is newfound materials, a mistake or error by the Court or any other similar sufficient grounds.

Conclusion
The procedure for ex parte decree is an exception to the general rule of allowing both sides to present their case. In order to avoid any infringement of basic rights, the process provides for sufficient time to the defendant to be present for the hearings. In case of error, there are also maximum safeguards allowing for the defendant to remedy against the decree. The ex parte hearing and decree format is an appropriate balance of rights for both parties. It allows for speedy delivery of justice for the plaintiff and also prevents any harm to the defendant's case. With clarifications from Courts, this procedure under the CPC has become productive and well-grounded in theory and in practice.

References:

1. https://bnblegal.com/article/decree-judgment-and-order-under-code-of-civil-procedure-1908/
2. https://www.livelaw.in/top-stories/supreme-court-ex-parte-proceedings-order-ix-rule-13-cpc-gnr-babu-sn-babu-vs-dr-bc-muthappa-2022-livelaw-sc-748-208895

End Notes:

1. Parimal v. Veena @ Bharti, AIR 2011 SUPREME COURT 1150
2. Bhivchandra Shankar More v. Balu Gangaram More, 2019 (6) SCC 387
3. Chajju Ram v. Neki, (1922) 24 BOMLR 1238