Summary
A preliminary decree passed after the defendants failed to appear before leading any evidence was an ex parte decree susceptible to Order IX Rule 13 CPC. The fact that the plaintiff had already given evidence did not activate the Explanation to Order XVII Rule 2 against the absent defendants. Setting aside the decree on sufficient cause and costs was upheld, with the restored mortgage-redemption suit to be decided on merits.
Issues
- Whether a decree passed after defendants’ absence, following completion of the plaintiff’s evidence but before any defence evidence, was ex parte.
Provisions considered
- Order XVII Rules 2 and 3; Order IX Rule 6(1)(a), Code of Civil Procedure, 1908The Explanation permitting an absent party to be treated as present depended on evidence having been led by that absent party, not merely its opponent. (¶ 16–29)
- Order IX Rule 13, Code of Civil Procedure, 1908The resulting preliminary decree was ex parte and could be set aside on sufficient ground; the Division Bench’s factual finding and costs condition were left undisturbed. (¶ 29–31)
Held
- The Explanation to Rule 2 operated where the absent party had led evidence or a substantial portion of it. Here the defendants had led none; the plaintiff’s completed evidence and continued presence did not satisfy that requirement for the defendants. (¶ 18–28)
- The trial court therefore proceeded under Order XVII Rule 3(b), Rule 2 and the ex parte mode in Order IX. Its preliminary decree was an ex parte decree notwithstanding the earlier appearance and cross-examination by the defendants. (¶¶ 6–8, 23–30)
- The Division Bench properly entertained and allowed the application to set aside. Its finding of sufficient ground did not warrant interference; the ₹10,000 costs condition remained enforceable. (¶ 30–31)
- The suit was restored for adjudication on merits, with substitution of the deceased plaintiff’s legal representatives in its cause title. (¶ 32–33)
Result
Appeals dismissed; setting aside of the ex parte preliminary decree upheld subject to defendant No.1 paying ₹10,000 costs. Trial court to decide the restored suit on merits, preferably within one year, permitting the legal representatives to be brought on record.