IMPORTANT POINT
A defendant may set aside an ex-parte decree if sufficient cause for absence is shown, as per Order 9 Rule 13 of the CPC.

JUDGMENT :

RAVI NATH TILHARI, J.

1. Heard Sri M.V. Suresh, learned counsel, who appears for the petitioner through virtual mode.

2. Perused the material on record.

3. Petitioner is the plaintiff in the suit O.S. No. 225 of 2014 on the file of the IV Additional District Judge, Kakinada, East Godavari District, which was filed for recovery of money. The said suit was decreed on 18.06.2019. the respondent/defendant filed application under Order 9 Rule 13 of the Code of Civil Procedure (in short ‘CPC’) to set aside the decree on the ground that the same was ex-parte and on the date 18.06.2019 the defendant could not appear due to serious medical condition of his wife who was admitted in the hospital. The medical certificates were also filed to prove that contention. The petitioner filed the objections/counter denying the correctness and that those were not the tenable grounds.

4. Considering the submissions and finding that the cause shown was sufficient, supported by medical certificate/records, which indicated that the respondent’s wife was admitted in hospital, the Court did not find any reason to discard such medical record, the decree has been set aside and that the suit has been restored vide impugned Order dated 11.03.2024.

5. Learned counsel for the petitioner while challenging the impugned order submits that the decree dated 18.06.2019 could not be said to be an ex-parte decree. Consequently, the application under Order 9 Rule 13 CPC was not maintainable.

6. The learned trial Court dealt with the said objection, also raised before it, and observed that on 18.06.2019 the defendant was absent and on his behalf no evidence had been led in the suit. Placing reliance on Order 17 Rule 2 CPC, it observed that when there was no evidence led, the question of leading substantial portion of evidence also did not arise. Consequently, the Court on that date had to proceed under Order 9 CPC and not as if the defendant was present or taken to be present under Order 17 Rule 2 CPC. In other words, the learned trial Court held that the defendant was absent and his presence could not be presumed or deemed. The decree was ex-parte. The cause shown being sufficient, the ex-parte decree was thus set aside.

7. It has not been disputed that on 18.06.2019 when the decree was passed, the defendant was absent.

8. It has also not been disputed that the evidence of the defendant or substantial portion of it had already not been led.

9. Order 9 Rule 13 CPC reads as under:

“13. Setting aside decree ex-parte against defendant - In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set aside and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for Proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

Provided further that no court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.

Explanation: Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex-parte decree.”

10. Order 9 Rule 13 CPC provides for setting aside of a decree passed ex-parte against a defendant, if he satisfies the Court that there was sufficient cause by which h