Ex-Parte Decree And "Sufficient Cause" For Non-Appearance

The Supreme Court in Arjun Singh v. Mohindra Kumar & Ors, observed "every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause"."

The Supreme court in Parimal v. Veena@ Bharti observed, "9. "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously."

While applying its discretion the court has to see that the defendant made the honest and sincere efforts to be present at the time of the hearing and the applicant must approach the court with reasonable defence.

Recently in M/S. Hira Sweets & Confectionary PVT. LTD. And Others v. Hira Confectioners, the Delhi High Court, while discussing the scope of application under Order IX Rule 13 CPC 1908,.observed that "sufficient cause" is a flexible expression and there cannot be a straitjacket formula to determine its scope. The High Court relied on the judgment of Parimal v. Veena@ Bharti and held that the court has to consider the facts and circumstances of each case and use its discretion accordingly. The defendant in Hira Sweets submitted that his counsel had wrongfully assured him that he had been appearing regularly in the matter. The Court rejected the application and observed that the decree was passed on merit and the defendant herself had applied for a certified copy of the decree, which was later received by her.

The High Court of Delhi in Pushpa Fabrics Private Limited v. Naveen Kochhar Proprietor M/S Naveen Enterprises held that the presumption about the service of summons based on the postal department is rebuttable; however, the burden lies on the party who seeks to rebut the presumption. The High Court relied on the judgment of Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani, which was also followed in Parimal v. Veena@ Bharti.

From the above-mentioned judgments, it can be inferred that there cannot be hard and fast rules to determine what constitutes a "sufficient cause" and what does not. One has to establish the fact that they have not acted in a negligent manner which resulted in their non-appearance at the time of the hearing. Furthermore, the court's main objective should be to do justice to all parties involved.

Simultaneous relief after an ex parte decree:

In Bhanu Kumar Jain v. Archana Kumar & Anr., the Supreme Court held that once the ex-parte decree is passed the defendant has two choices, either to file an application under Order IX Rule 13 or to file an appeal under Section 96(2) of CPC 1908. The defendant can take recourse to both proceedings simultaneously. If the appeal under Section 96(2) is dismissed then the application under Order IX Rule 13 of CPC 1908 would not be applicable because the ex-parte decree merges with the order of the appellate court. The court further held that there is no statutory bar to avail both the remedies simultaneously and consecutively. The right of appeal is conferred upon the defendant under a statute that cannot be taken away unless the same is contrary to any other statute. However, when an application under Order IX Rule 13 is dismissed and the defendant files an appeal under Order XLIII Rule 1 (C) which is also dismissed, the defendant cannot raise the same contention in the first appeal under Section 96 of CPC 1908.

In Bhivchandra Shankar More v. Balu Gangaram More & Ors., it was observed that the scope of enquiries under Order IX Rule 13 and Section 96(2) of CPC 1908 are completely different. "Merely because the defendant pursued the remedy under Order IX Rule 13 CPC, it does not prohibit the defendant from filing the appeal if his application under Order IX Rule 13 CPC is dismissed." The court further held that the right of appeal under Section 96(2) CPC is a statutory right. The defendant cannot be deprived of his statutory right and upheld its judgment of Bhanu Kumar Jain. Finally, the court held that the time spent in pursuing the application under Order IX Rule 13 is to be taken as "sufficient cause" under Section 5 of the Limitation Act for the condonation of delay.

To succeed under Order IX Rule 13 the defendant has to establish the fact that he was not summoned for the appearance before the court, or that he was prevented by a "sufficient cause". If the application under Order IX Rule 13 is dismissed, then an appeal under Section 96(2) is the second remedy. One can avail both the remedies simultaneously and there is no statutory bar on availing both the remedies simultaneously. However, if an appeal under Section 96(2) is filed before an application under Order IX Rule 13, the appellate court order on appeal merges with the decree.

Views are personal.

The Author is an Advocate.