1984 Supreme(Cal) 142

High Court of Calcutta
Mukerji, M.G. Mukherji, JJ.
Tapati Naskar – Appellant
Versus
Lakshmi Kanto Naskar – Respondent
Decided On : Apr 16, 1984

An application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside an ex parte decree is maintainable even if the decree was passed under Order 17 Rule 3 of the Code, provided that the party against whom the decree was passed was not present when the decree was passed.

Headnote:

ORDER 9 RULE 13 - EX PARTE DECREE - SETTING ASIDE - APPEARANCE - AMENDMENT TO RULES 2 AND 3 OF ORDER 17 - INTERPRETATION - SUFFICIENCY OF CAUSE - DELAY IN FILING APPLICATION - DISMISSAL OF APPEAL - MAINTENANCE OF WIFE - SCOPE OF APPEAL: 1. An application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside an ex parte decree is maintainable even if the decree was passed under Order 17 Rule 3 of the Code, provided that the party against whom the decree was passed was not present when the decree was passed. 2. The amendment to Rules 2 and 3 of Order 17 of the Code of Civil Procedure in 1976 clarified the procedure to be followed by the court when a party fails to appear or to produce evidence. Under the amended Rule 3, the court can proceed to decide the suit forthwith only if both parties are present, notwithstanding the default of a party to produce evidence. If one or both parties are absent, the court must proceed under Rule 2, which allows the court to dispose of the suit in one of the modes prescribed by Order 9 of the Code or to make such other order as it thinks fit. 3. The Explanation to Rule 2 of Order 17 of the Code of Civil Procedure provides that the court may proceed to decide the suit on merits as a contested one even if one party is absent on an adjourned date of hearing, provided that evidence or a substantial part of the evidence of that party has already been recorded. However, if the party has not yet adduced any evidence and is absent on an adjourned date of hearing, the court may proceed to dispose of the suit in any of the modes prescribed by Order 9 of the Code. 4. The court has the discretion to make 'such other order as it thinks fit' under Rule 2 of Order 17 of the Code of Civil Procedure, but this discretion must be exercised in light of the Explanation to Rule 2 and the provisions of Rule 3(a) of Order 17. Therefore, the court can dispose of a suit as a contested one only when both parties are present, notwithstanding the default of a party to adduce evidence, or when evidence or a substantial portion thereof on behalf of a party has been already recorded but such party is absent on an adjourned date of hearing. 5. When a party is absent on the adjourned date of hearing and the court proceeds to dispose of the suit under Order 17 Rule 3(b) read with Rule 2 of the Code of Civil Procedure, an application under Order 9 Rule 13 of the Code for setting aside the ex parte decree is maintainable. 6. In the present case, the appellant wife failed to appear on the date fixed for hearing of the matrimonial suit, and the court below proceeded to dispose of the suit under Order 17 Rule 3(b) read with Rule 2 of the Code of Civil Procedure. The appellant's application under Order 9 Rule 13 of the Code for setting aside the ex parte decree was therefore maintainable. 7. However, the appellant failed to make out a sufficient cause for her absence on the date of hearing. She alleged that the court below was biased and that some questions put and answers given by the plaintiff's witness had not been recorded, but she did not provide any specific details or evidence to support these allegations. She also failed to obtain a stay order from the learned District Judge despite being granted adjournments for this purpose. 8. The appellant's application under Order 9 Rule 13 of the Code was therefore dismissed without any order as to costs. The order disposing of the appeal was without prejudice to the rights and contentions of both parties regarding the appellant's alleged claim for permanent alimony etc.

Fact of the Case:

The appellant wife filed an application under Order 9 Rule 13 of the Code of Civil Procedure to set aside an ex parte decree passed against her in a matrimonial suit filed by her husband. The court below dismissed the application on the ground that it was not maintainable as the decree had been passed under Order 17 Rule 3 of the Code. The appellant challenged the order of the court below in appeal.

Finding of the Court:

The court held that the application under Order 9 Rule 13 of the Code of Civil Procedure was maintainable as the appellant wife was not present when the ex parte decree was passed. The court further held that the appellant had failed to make out a sufficient cause for her absence on the date of hearing and therefore dismissed her application.

Issues: 1. Whether an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside an ex parte decree is maintainable even if the decree was passed under Order 17 Rule 3 of the Code? 2. Whether the appellant had made out a sufficient cause for her absence on the date of hearing?

Ratio Decidendi: 1. The court held that an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside an ex parte decree is maintainable even if the decree was passed under Order 17 Rule 3 of the Code, provided that the party against whom the decree was passed was not present when the decree was passed. 2. The court held that the appellant had failed to make out a sufficient cause for her absence on the date of hearing as she did not provide any specific details or evidence to support her allegations of bias on the part of the court below and her claim that some questions put and answers given by the plaintiff's witness had not been recorded.

Final Decision: The court dismissed the appeal without any order as to costs. The order disposing of the appeal was without prejudice to the rights and contentions of both parties regarding the appellant's alleged claim for permanent alimony etc.