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Order setting the defendant ex parte is not sine qua non for entertaining an application under Order IX Rule 13 C.P.C – Orrisa HC

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A Single Judge Bench of Justice K.R. Mohapatra held that if any party fails to appear for hearing, the Court has the discretion to dispose of the suit in any of the modes provided under Order IX. There is no impediment for the Court to proceed with the hearing of the suit without recording a formal order setting the Petitioner ex parte.

The Petitioner in the writ petition seeks to assail the order of August 2019 passed by Addl. District Judge- II, where she confirmed the order of October 2015 passed by Civil Judge, dismissing an application under Order IX Rule 13 C.P.C. filed by him.

The Petitioner submitted that he, as Defendant No. 1 could not appear on the date of hearing of the suit due to his illness for which the suit for partition proceeded in his absence. Ex parte judgment was also passed on the very same day, i.e., on 26th June, 2013 and the decree was passed on 5th July, 2013 by Civil Judge. The Petitioner filed under Order IX Rule 13 C.P.C. for setting aside the ex parte decree, which was rejected on the ground that since the Petitioner was never set ex parte, the provision of Order IX Rule 13 C.P.C. is not applicable.

The trial court held that the medical certificate filed by the Petitioner in support of his illness was not proved by the treating physician. Accordingly, she dismissed the petition under Order IX Rule 13 C.P.C. Assailing the same, the Petitioner preferred FAO, which was also dismissed holding that since the Petitioner was never set ex parte, the question of exercising power under Order IX Rule 13 C.P.C. does not arise.

Mr. Mishra, counsel for the Petitioner further submitted that since the judgment was passed ex parte against the Petitioner, the petition under Order IX Rule 13 C.P.C. is maintainable and in order to maintain a petition under Order IX Rule 13 C.P.C., a specific order setting the Petitioner ex parte is not required to be passed.

In support of his case, he relied upon the decision of Orrisa Court in the case of Murali Patra v Sunaram Singh, where it has been held as follows:

“As indicated, at the outset the scope and ambit of Order 17, Rules 2 and 3 falls for consideration in this case. If on a date fixed one of the parties to the suit remains absent and for that party no evidence has been led up to that date, the Court has no option but to dispose of the matter in accordance with Order 17, Rule 2 in any one of the modes prescribed under Order 9 of the Code. After the amendment in 1976 to Order 17, Rules 2 and 3, in a case where the party is absent, the only course available is to proceed under Rule 2 in the manner prescribed in Order 17, Rule 3(b).

Therefore, in the absence of defendant, the Court had no option but to proceed under Rule 2. The language of Rule 2 as stands presently clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes prescribed under Order 9. The explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3, even if a party is absent; but the same discretion is conditional, and is applicable in a case where a party which is absent has led some evidence or part of its evidence. In such a case the Court has to proceed to dispose of the suit on merits in one of the modes under Order 9.”

Petitioner prayed for setting aside the impugned judgments.

The court after perusal of the materials record observed that it is apparent that although the Petitioner appeared in 2007, he had neither filed a written statement nor entered into the witness box to lead evidence. The judgment was also passed ex parte against the defendants allotting 1/3rd share to each of the parties to the suit. The ratio in the case of Murali Patra makes it clear that when on the date to which the suit is adjourned, any of the parties fail to appear the Court has the discretion to dispose of the suit in any of the modes under Order IX. Thus, there is no impediment for the Court to proceed with the hearing of the suit without recording a formal order setting the Petitioner ex parte.

In other words, an order setting the defendant ex parte is not sine qua non for entertaining an application under Order IX Rule 13 C.P.C. The nature of the judgment and decree is determinative in taking a decision with regard to maintainability of a petition under Order IX Rule 13 C.P.C.

In view of the language and tenor of Order XVII Rule 2 C.P.C., it can be safely said that the Court can dispose of the suit ex parte when the Defendant fails to appear on the date of hearing of the suit. In the case at hand, the Court, in fact, proceeded ex parte and passed the impugned judgment in ex parte. Thus, a petition under Order IX Rule 13 C.P.C. is maintainable.

In the case of Prakash Chander Manchanda and another v Smt. Janki Manchanda, the Supreme Court has made it clear that if the Defendant fails to appear on the date of hearing and no evidence is led on its behalf, the Court can proceed ex parte under Order IX C.P.C. When an ex parte judgment and decree is passed, it hardly makes any difference, if a formal order setting the Petitioner ex parte has been passed or not. Rule 13 of Order IX C.P.C. relates to an ex parte decree and not an order.

Therefore, it was held that the impugned judgments were not sustainable in law. The same was set aside.

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