As a rule of procedure, if the defendant does not appear on the day fixed for hearing, the court can order to proceed ex parte. In other words, the trial will continue on merits at the option of the plaintiff even though there is no defendant to put his defence. This is the scenario when in a suit there is only one defendant. 

Supposedly, there are more defendants than one and out of them some defendants make an appearance while others do not. In such a scenario, the rule of procedure mentions that those defendants who did not make an appearance will be put ex parte and the trial will proceed at the option of plaintiff and contesting defendants. The difficulty however arises when a decree follows such ex parte trial and the non-contesting defendant is aggrieved by such decree.

Amongst few other remedies available, one of the remedies is to file an application under order IX Rule 13 to set aside such ex parte order. Supposedly, the prayer is accepted and further the decree is of such a nature that it is required to be set aside against all the defendants and not just the defendants who were ex parte. Then in such a scenario, the case would be again taken up on the file and the process will be repeated. This will affect the time of the litigation, cost to the parties and will be a big win for the party who intentionally adopts this strategy of hide & seek and takes the court for a ride as a part of delay tactics.

This can be a possible way to play with the procedure but is this the objective that the Rule envisages? Does in every case, where there are more defendants than one and some of them appear while others do not, the ex parte defendants can take the advantage of proviso to Rule 13 of Order IX and in effect, press the repeat button every time the case comes to an end?

In Kamlesh Kohli and Ors. v. Escotrac Finance andInvestment Ltd & Ors, the Supreme Court observed that, “Civil Procedure Code nowhere prescribes that decree against some of the defendants to a suit cannot be passed or that if the suit is dismissed as against one defendant it is required to be dismissed against other defendants too.”

Order IX of the Code of Civil Procedure 1908 deals with the appearance of parties before the court on the date fixed for such appearance. It further also mentions the consequences when either party or both of them do not appear. The said order provides for detailed rules encompassing several contingencies such as when the plaintiff appears but defendant does not appear (Rule 6), when defendant appears but plaintiff does not appear (Rule 8), when neither plaintiff nor defendant appears (Rule 3), when plaintiff fails to pay the cost of service of summons (Rule 2) or when plaintiff fails to apply for fresh summons after the earlier summons was returned unserved (Rule 5), when a party-in-person so ordered does not appear (Rule 12). But one of the very interesting features of Order IX is the scheme, structure and language in which Rules 10 and 11 are drafted depicting a very mature legislative exercise.

Rule 10 provides that when one or more of several plaintiffs do not appear then the court may permit the suit to proceed, at the instance of those plaintiff(s) appearing, in following ways:

1. As if all the plaintiffs had appeared; Or
2. Make such orders as it thinks fit.

While Rule 11 provides that when one or more of the several defendants do not appear then the suit shall proceed, and the court shall, at the time of pronouncing judgement, make such order as it thinks fit with respect to the defendants who did not appear.

The distinction in the language used in Rule 10 as against the language of Rule 11 of Order IX was appreciated by the Madras High Court in the case of K.Maheshwari & Anr v. Mubarak Ali & Anr. Therefore, where under Rule 10, the code provides the discretion to the court; such is not the objective of Rule 11. Under Rule 11 the court is mandated to proceed with the trial and is required to make a “fit order” at the time of pronouncing judgement. Such fit order means the order of the court as to whether the decision of the case on merits will affect the ex parte defendants or not.

In Veena Monga v. Hari Mohan Monga & Others, the Punjab & Haryana High Court held that by virtue of Order IX Rule 11, the court at the time of pronouncing a judgement can pass an ex parte decree against a non contesting defendant either without reference to merits or on merits. It can also adopt the procedure set out in Order XVII Rule 3 if the conditions therein are met. The court observed that not all times the defendant who has remained absent gets an ex parte decree without merit. It further observed that, “The Court is not without power to pass a judgement on merits that can affect all parties when only some of the defendants remained ex parte in terms of Order 9 Rule 11 CPC.”

In Reena Sadh v. Anjana Enterprises, the appellant was aggrieved by the ex parte decree passed against her and it was her contention that the said ex parte decree was passed without any service to her. The Delhi High Court refused the contention and dismissed the appeal by referring to Order IX Rule 11 as of “infinite importance”. Looking at the circumstances of the case, the court opined that it was not incumbent upon the Trial Court to mention that she was being proceeded against ex-parte or her defence was struck off. The approach of the appellant to misuse the procedure was criticised by the court.

Order IX Rule 13 provides for setting aside the decree which has been passed ex parte and the proviso to Rule 13 provides, inter alia, "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". Therefore, a decree passed under Order IX Rule 11 is also sought to set aside under Rule 13. In this way, sometimes the rules of procedure are misused. Taking a note of this,  Calcutta High Court in Smt. Utpala Deb & Ors v. Smt Sita DeviLohia & Ors observed that “where after appearance and filing of written statement some of the defendants fail to appear before Court while the suit is proceeded against contesting defendants and decided on merit and decreed on contest against some and dismissed ex parte against others, action taken by the Court will come under the purview of Order 9 Rule 11 CPC to be read with Order 17 Rules 2 and 3 and remedy to set aside such order based on common defence cannot be sought for under Order 9 Rule 13 CPC but appeal shall lie under Order 41 Rule 4 CPC.”

The beauty of a procedural law is that a minor error can have a major effect; likewise, a minor care can also save us a major delay. Rule 11 of Order IX is one such provision. If while proceeding against some of the defendants ex parte, the court passes a fit order to that effect, then a lot of procedural delays could be avoided. If the Court wishes to proceed against some of the ex parte defendants on merits then too Rule 11 of Order IX renders such powers. The true legislative intent behind rule 11 of Order IX can only be achieved if the court at the time of pronouncing judgement passes a fit order to that effect mentioning as to whether the decision on merits affects the ex parte defendants or not. When the interests of the defendants are same and not in conflict, then there is no harm in extending the contentions of defendants present to those who remained ex parte and thereafter passing a judgement against them all, ofcourse, on merits. In case of grievance, they have the option to appeal against the order under Order XLI. It will also ensure that there are no parallel proceedings against the same decree wherein one set of defendants is appealing against it to the appellate court and another set of defendants is before the same court contending for setting it aside. A simple care in passing a fit order under Order IX Rule 11 can thereby ensure saving a lot of court’s time and cost of the party and further also ensuring that an effective decree on merit is passed.

The author is an Advocate practising at Gujarat , views are personal.