This study is done by Meghna Mishra, pursuing BA LLB at Christ Academy Institute of Law, during her internship at LeDroit India.
KEYWORDS
Ex-Parte-fairness-natural justice-parties-delay-default-benefit-principle-doctorine
ABSTRACT
“Nullus commodum capere potest de injuria sua propria”
This maxim has a huge impact in the legal world and it literally translates to : “No one should benefit from a default”, especially when it is their own.
This axiom forms the basis for the legal principle of ex-parte decrees in the Civil Procedure Code, that reflects on the deeper constitutional values, particularly the principles of natural justice, fairness, and the right to be heard.
Judicial interpretations have further shaped the balance between procedural discipline and equitable treatment, emphasising both on the need to curb dilatory tactics and the duty to ensure that no party suffers because of circumstances beyond their control.
However the practical challenges remain, ranging from unreliable service mechanisms to inconsistent judicial scrutiny of evidence highlighting the gaps that require reforms. Strengthening service processes, reducing delays in recall proceedings, ensuring careful examination of the plaintiff’s case even in the defendant’s absence, and expanding legal awareness are essential steps for improving transparency, preventing misuse, and promoting meaningful access to justice.
INTRODUCTION
Civil justice relies on participation, dialogue, and the adversarial process, where each party presents its case and the court reaches a decision. Yet, the realities of litigation often challenge this ideal. Parties may deliberately avoid proceedings, fail to respond to summons, engage in delay tactics, or simply remain unaware of ongoing litigation due to administrative lapses. To prevent justice from coming to a standstill, courts are empowered to proceed ex parte, ensuring that a case does not collapse merely because one party is absent.
In cases as such, ex-parte proceedings act as a bridge that fills the gap that exists between the rigid procedure and the delivery of justice. Ex-Parte decree is a judicial remedy that enables the court to continue hearing a case even without the presence of the other party, despite serving proper notice to them.
The foundation of this aspect is rooted in the principle of audi alteram partem—the mandate that the other side must be heard—forming an essential component of natural justice. This principle ensures that no party is condemned unheard and that adjudication remains fair, participatory, and transparent. When one party appears and the other repeatedly fails to do so despite proper service, the balance between fairness and efficiency becomes delicate. Courts cannot allow the absent party’s conduct to indefinitely obstruct the proceedings, as such obstruction would not only delay justice but also prejudice the party who has dutifully appeared and is seeking lawful relief.
Ex-parte decrees therefore function as a procedural response designed to protect the integrity of the judicial process. They prevent the misuse of non-appearance as a delaying tactic while still respecting the foundational requirement of fairness through subsequent safeguards such as Order IX Rule 6.
By enabling courts to continue with the matter rather than remain paralysed by deliberate or unexplained absence, the mechanism upholds the rights of the appearing party and supports the broader objective of timely adjudication. At the same time, the availability of a recall procedure ensures that the spirit of audi alteram partem is not compromised, preserving the opportunity for the defaulting party to be heard upon showing sufficient cause. In this way, the ex-parte framework balances procedural discipline with constitutional fairness, ensuring that justice is neither denied through delay nor rendered arbitrary by rigid application.
EX-PARTE DECREE
An ex-parte decree is essentially a final decision given by a civil court when the defendant, despite being properly informed about the case, does not appear before the court. In such a situation, the court does not dismiss the case or postpone it endlessly. Instead,the court proceeds to examine whatever material the plaintiff has placed on record and decides the dispute on that basis alone. In simple words, the court moves forward even in the defendant’s absence, but only after assuring itself that the defendant had a fair opportunity to appear and chose not to.
It is important to understand that an ex-parte decree is not a default victory or a mechanical outcome in favour of the plaintiff. Courts do not hand out relief merely because the other side failed to attend. Before passing an ex-parte decree, the court must satisfy itself on several essential points.
First, the court must have proper jurisdiction—both territorial and subject-matter—because the absence of a defendant cannot enlarge or create jurisdiction where none exists. Second, the court must closely scrutinize the issue of service of summons. Only if it is convinced that the defendant was genuinely served, or that substituted service was correctly executed, can the court proceed ex-parte. If there is any doubt about service, the court is expected to direct fresh service rather than rush into a decree.
Even after clearing these procedural thresholds, the plaintiff does not automatically succeed. The plaintiff still carries the burden of proving a prima facie case. This means the court must examine the pleadings, documents, and evidence presented on behalf of the plaintiff and reach a judicial satisfaction that the claim has merit. The plaintiff must establish entitlement to relief in accordance with law, and courts frequently reject or modify claims even in ex-parte proceedings when the evidence is weak, incomplete, or legally insufficient. This requirement flows from a long-standing judicial principle that a decree must rest on proof, not on default.
In practice, therefore, an ex-parte decree reflects the court’s attempt to balance two competing concerns: the need to keep the wheels of justice turning even when one party is uncooperative, and the obligation to ensure that decisions are grounded in evidence and fairness, not procedural shortcuts. It is a recognition that litigation cannot be held hostage to absence or delay, but at the same time, justice cannot be sacrificed merely because one side has not participated.
Under the statutory framework that is governing ex-parte proceedings is located primarily in Order IX of the CPC majorly and there are certain provisions related to Ex-Parte Decrees in the Code of Civil Procedure, 1908, there are:
- Order IX Rule 6 — When Plaintiff Appears and Defendant Does Not : Under this provision it is given that, if the defendant does not appear despite due service, the court may proceed to pass an ex-parte decree.
- Order IX Rule 7 — Restoration of Hearing Before Ex-Parte Evidence; If the defendant appears at a subsequent stage before evidence is recorded, the court may permit participation on sufficient cause.
- Order IX Rule 13 — Setting Aside Ex-Parte Decrees; This is the principal remedial mechanism. A defendant may seek to have an ex-parte decree set aside on either of two grounds:
- Summons are not properly served
- Sufficient cause, i.e, A strong reasoning for not being able to attend the proceedings.
This means that even though there exists a provision in the CPC to uphold the rights of the parties who are present, however the right to be notified, just like the right to be heard exists in the principles of natural justice that’s why, for the cases where the default of the Respondent himself like instances where they fail to file the written statements even after issuance of multiple notices and summons, the parties chose to ignore the Court and fail to appear before the court in person or at least through any representatives. In Cases as such the Supreme Court is most likely not to allow the party to file written submissions after a point of time and the decree will be passed by the court in absence of the party if they fail to appear before the court even after several reminders, as stated in the case of Nanda Dulal Pradhan vs. Dibakar Pradhan (2022)
Further, in a 2021 case, the Supreme Court clarified that delay in seeking to set aside an ex-parte decree is not fatal when the applicant demonstrates sufficient cause and when reopening the matter does not unduly prejudice the opposing party.
SETTING ASIDE EX PARTE DECREES
An ex-parte decree is a judgment rendered by a civil court in favour of one party when the opposite party fails to appear before the court despite being duly served with summons. Although such a decree is perfectly valid and enforceable, the law recognises that non-appearance may sometimes occur for genuine and unavoidable reasons. To balance fairness with procedural discipline, the Code of Civil Procedure, 1908 provides a specific remedial mechanism under Order IX Rule 13 for setting aside an ex-parte decree. This provision reflects the judicial commitment to ensuring that adjudication takes place only after giving both parties a real and meaningful opportunity to present their case.
The remedy for setting aside an ex-parte decree is premised on the principle that courts must prefer deciding disputes on merits rather than allowing technical defaults to determine the outcome. Order IX Rule 13 empowers the defendant to apply for reopening the case by showing “sufficient cause” for absence on the date of hearing. The burden lies on the defendant to convincingly explain why they could not be present — whether due to non-service of summons, mis-service, mistake, illness, unavoidable circumstances, or other reasons that the court finds reasonable. The explanation need not be perfect, but it must be bona fide, prompt, and supported by some material.
While considering applications under Order IX Rule 13, courts do not merely scrutinise the length of delay but examine the overall conduct of the applicant. Indian courts consistently hold that delay alone is not fatal; what matters is whether the circumstances demonstrate genuine inability rather than indifference or wilful negligence. If the reasons appear honest and the defendant shows readiness to proceed with the case diligently, courts lean towards granting the relief, provided it does not prejudice the decree-holder.
The Supreme Court has repeatedly emphasised that the objective of Order IX Rule 13 is to promote substantive justice. The power under this provision is discretionary, but that discretion must be exercised judiciously. Courts must weigh two competing considerations: on the one hand, a plaintiff who has obtained a decree after due process should not be deprived of the fruits of litigation; on the other hand, denying the defendant a chance to be heard may result in irreversible injustice. This tension is resolved through a balanced approach that considers prejudice, delay, merits of the defence, and the bona fides of the applicant.
Importantly, the scope of inquiry in a Rule 13 application is limited. The court does not assess whether the ex-parte decree was correct on merits. The sole question is whether the defendant had adequate justification for absence. If the court finds that summons were not duly served, or that there existed sufficient cause preventing appearance, it must set aside the decree. In cases of long delay, courts may impose costs to compensate the plaintiff for inconvenience and to deter misuse of the provision.
Another significant aspect is that setting aside the ex-parte decree revives the original suit. The case returns to its pre-decree stage, allowing both parties to lead evidence, raise contentions, and proceed according to regular civil procedure. However, if only a part of the decree was passed ex-parte—for example, against one defendant—the court may set aside the decree only in relation to that party.
Judicial interpretation also clarifies what does not constitute sufficient cause. Casual conduct, repeated non-appearance, deliberate delay tactics, or avoidance of service cannot be excused. The remedy is meant to protect genuine hardships, not to enable abuse of process. Courts also refuse relief where the defendant had constructive knowledge of the proceedings but still chose not to participate.
Overall, the provision for setting aside an ex-parte decree seeks to uphold the foundational principle of natural justice: audi alteram partem—the right to be heard. By allowing a defendant a second opportunity while simultaneously safeguarding the plaintiff from undue prejudice, Order IX Rule 13 maintains the equilibrium between procedural efficiency and fairness. It ensures that no litigant suffers final adverse consequences without being given a fair chance to contest the case, thereby strengthening the legitimacy of the judicial process.
Furthermore, it is not that court is completely devoid of empathy and ignores reasoning, as seen there are cases where the Supreme Court has allowed the parties who have shown enough cause like falling seriously ill and were admitted to hospital and has been so ill that doctors recommended complete bedrest for them and in conditions like that the decree of Ex-Parte can be set aside.
