A defendant's ex parte decree can be reversed under CPC if a sufficient cause for their absence is established, affirming the principle of fair trial.

JUDGMENT

Anil K. Narendran, J.

The appellant is the 1st defendant in O.S.No.123 of 2012 on the file of the Sub Court, Alappuzha, which was one filed by respondents 1 and 2 herein-plaintiffs against the appellant and two others, who are arrayed as respondents 3 and 4 herein, for realisation of Rs.92,48,453.50/- being the value of copper scrap allegedly misappropriated by the defendants and for other consequential reliefs. The defendants filed individual written statements raising various contentions. The suit was listed for trial on 03.10.2017. On the side of the plaintiffs, PWs.1 to 3 were examined and Exts.A1 to A14 were marked. Since the 1st defendant remained absent, he was set ex parte. Defendants 2 and 3 did not adduce any oral or documentary evidence. The Sub Court, by the judgment and decree dated 31.10.2017, decreed the suit against defendants 1 and 2 and they were directed to pay Rs.92,48,453.50/- to the 1st plaintiff within three months. The suit against the 3rd defendant was dismissed. Defendants 1 and 2 were held jointly and severally liable to pay the amount to the 1st plaintiff with costs. Seeking an order to set aside the ex parte decree dated 31.10.2017 in O.S.No.123 of 2012, the 1st defendant filed I.A.No.675 of 2017, an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 . The relief sought for in that application was opposed by the plaintiffs, by filing counter. After considering the rival contentions, the court below dismissed the said interlocutory application by the order dated 20.06.2018, which is under challenge in this appeal filed invoking the provisions under Order XLIII Rule 1(d) of the Code.

2. This appeal is one filed along with C.M. Application 1 of 2019 for condonation of delay of 243 days, which was condoned by the order dated 01.12.2022, on payment of a cost of Rs.1,000/- to the High Court Legal Services Committee. By the order dated 19.06.2023, the appellant was granted extension of time till that date to deposit the cost. Accordingly, the appellant deposited the cost of Rs.1,000/- on 19.06.2023 and a memo to that effect has also been filed by the learned counsel for the appellant.

3. Heard the learned counsel for the appellant-1st defendant and also the learned Standing Counsel for KSEB for respondents 1 and 2-plaintiffs. Despite service of notice, none appears for respondents 3 and 4-defendants 2 and 3.

4. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the order dated 20.06.2018 of the Sub Court, Alappuzha in I.A.No.675 of 2017 in O.S.No.123 of 2012, whereby the application filed by the appellant-1st defendant under Order IX Rule 13 of the Code to set aside the ex parte decree dated 31.10.2017 stands rejected. 5. Order IX, Rule 13 of the Code provides for setting aside decree ex parte against the defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed ex parte against a defendant, he may apply to the court 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. As per the first proviso to sub- rule (1), 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. As per the second proviso to sub-rule (1), 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. As per the Explanation, where there has b