IMPORTANT POINT
An ex-parte decree can only be set aside if sufficient cause for non-appearance is demonstrated, which was not established in this case.

JUDGMENT :

Ravi Nath Tilhari, J.

1. Heard Sri K. Satyanandam, learned counsel representing Sri T.V. Jaggi Reddy, learned counsel for the appellant and learned counsel for the respondent appearing through virtual mode.

2. The appellant is of the husband the respondent-wife.

3. The respondent filed H.M.O.P. No. 76 of 2022 seeking divorce under Section 13(1)(ia) of Hindu Marriage Act, 1955. The appellant was set ex-parte by an order dated 06.02.2023. The respondent's (wife) evidence was completed and the matter was posted for orders on 27.02.2023. On 27.02.2023 i.e. the date fixed for delivering of judgment, the appellant filed an application under Order 9 Rule 7 r/w Section 151 CPC which was dismissed and the judgment was pronounced. The appellant thereafter on 29.03.2023 filed an application vide I.A. No. 1 of 2023 under Order 9 Rule 13 CPC to set aside the ex-parte decree dated 27.02.2023, which has been rejected by an order dated 05.02.2024.

4. Challenging the order dated 05.02.2024, the present appeal has been filed.

5. The learned Civil Judge (Senior Division), Tanuku rejected I.A. No. 1 of 2023 under Order 9 Rule 13 CPC, observing that there was no sufficient cause shown in the petition for the non appearance and unless sufficient cause was shown, ex-parte decree could not be set aside.

6. 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 it 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 than 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 an 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.

7. Under Order 9 Rule 13 CPC, it is evident that an ex-parte order/decree can be set aside if the cause for non-appearance is shown to be sufficient. In Subodh Kumar v. Shamim Ahmed, (2021) 15 SCC 105, the Hon'ble Apex Court held that the application under Order 9 Rule 13 can be allowed only when the sufficient cause is made out to set aside the ex-parte decree. In that case no sufficient cause was made out to set aside the ex-parte decree.

8. Learned counsel for the appellant, before us also could not show from the petition under Order 9 Rule 13 CPC as to in which para, the sufficient cause was stated for absence, for setting aside the ex-parte decree.

9. In the present case, learned Trial Court has specifically recorded that no cause was mentioned much less satisfactory cause and therefore ex-parte decree deserves not to be set aside.

10. We do not find any illegality in the order.

11. Learned counsel for the appellant submits that the rejection of the application under Order 9 Rule 7 on 27.02.2023 was not justified.

12. We are not satisfied for the reason that the application under Order 9 Rule 7 CPC was filed on the date when the case was fixed for delivering the judgment. Such an application would not be maintainable on such date. In such cases, the remedy is to wait for delivery of j