§ Order IX Rule 6(1), CPC 1908 (in substance)

Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then —

(a) when summons is duly served, the Court may make an order that the suit be heard ex parte;

(b) when summons is not duly served, the Court shall direct a second summons to be issued and served on the defendant;

(c) when summons is served but not in sufficient time to enable him to appear and answer on the day fixed, the Court shall postpone the hearing to a future day to be fixed by the Court and shall direct notice of that day to be given to the defendant.

§ Three points on the ex parte hearing

• It is not a judgment by default. The plaintiff must still prove his case. The court hears his evidence and decides whether he has made out his claim; an absent defendant does not mean an automatic decree.

• It is a state, not a decision. No appeal lies from an order to proceed ex parte, because it decides nothing about the rights of the parties.

• The first condition is due service. Where the summons was not duly served, clause (b) requires a second summons, and a decree passed without due service is liable to be set aside as of course under the first ground in Rule 13.

§ Order IX Rule 7, CPC 1908

Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

§ What Rule 7 does and does not give

• It lets him in for the future. He is heard in answer to the suit from that stage onwards, as if he had appeared on the day fixed.

• It does not undo the past. Evidence already recorded in his absence is not wiped out, and the proceedings do not begin again. The settled view is that he cannot claim a right to have the earlier evidence retaken.

• Good cause, and terms. He must assign good cause for his previous non-appearance, and the court may impose terms as to costs or otherwise.

• The window closes with the decree. Rule 7 operates only while the suit is pending; once the decree is passed, the route is Rule 13.

§ Order IX Rule 13, CPC 1908 (in substance)

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 that no decree shall be set aside on any such application unless notice thereof has been served on the opposite party.

Explanation. Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than that the appellant has withdrawn it, no application shall lie under this rule for setting aside that ex parte decree.*

📖 Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787

The Supreme Court considered the relationship between an application under Order IX Rule 13 and an appeal under Section 96(2) against the same ex parte decree. It held that the two remedies are concurrent, and a defendant may pursue either. But once an application under Rule 13 has been dismissed, the question of the sufficiency of the cause for his non-appearance stands concluded, and he cannot re-agitate it in the appeal. What remains open to him in the appeal is a challenge to the decree on the merits: he may contend that the material on record did not justify the decree, or that it is otherwise bad in law. The Court also explained the distinction between the right of the defendant to participate after an order under Rule 7 and his position after a decree.

Rule: the leading authority on the concurrent remedies, and on what survives in appeal after a Rule 13 application fails.

What it is

A state of the proceeding: the suit is heard in the defendant's absence

An outcome: a decree passed after hearing the plaintiff alone

Provision

Order IX Rule 6(1)(a)

Passed in the ordinary way after the ex parte hearing

Is it a decision?

No; it decides nothing about the rights of the parties

Yes; it is a decree within Section 2(2)

Appeal

None lies from the order to proceed ex parte

An appeal lies under Section 96(2)

The defendant's route back

Order IX Rule 7: on assigning good cause, he is heard from that stage onwards

Order IX Rule 13: an application to set the decree aside, or an appeal

What must be shown

GOOD CAUSE for the previous non-appearance

That summons was NOT DULY SERVED, or SUFFICIENT CAUSE for non-appearance

Time

At or before the adjourned hearing

Thirty days from the date of the decree, or from knowledge of it where summons was not duly served: Article 123

Effect of success

He participates from that point; earlier evidence is not retaken

The decree is set aside and a day is appointed for proceeding with the suit