In an eviction proceeding, 27-5-1989 was fixed for the evidence of the landlord and 2.6.1989 for the evidence of the tenant… He filed his own affidavit but did not file a medical certificate, diary and affidavit of counsel. The landlord rebutted his allegation on affidavit. Decide

Question: In an eviction proceeding, 27-5-1989 was fixed for the evidence of the landlord and 2.6.1989 for the evidence of the tenant. On 27.5.1989 neither the tenant nor his counsel appeared at hearing. The Court recorded evidence of landlord and passed ex-parte eviction order.

Same day tenant applied for setting aside the ex-parte order alleging that he was ill and his counsel had forgotten mentioning the case in his diary. He filed his own affidavit but did not file a medical certificate, diary and affidavit of counsel. The landlord rebutted his allegation on affidavit. Decide

Find the answer to the mains question only on Legal Bites. [In an eviction proceeding, 27-5-1989 was fixed for the evidence of the landlord and 2.6.1989 for the evidence of the tenant… He filed his own affidavit but did not file a medical certificate, diary and affidavit of counsel. The landlord rebutted his allegation on affidavit. Decide]

Answer

Order 9 Rule 6 of Civil Procedure Code provides regarding ex-parte proceedings and lays down that 'Where plaintiff appears and defendant does not appear the plaintiff has to prove service of summons on defendant. If service of summons is proved, the court may proceed ex-parte against defendant and may pass decree in favour of plaintiff, if the plaintiff proves his case.”

Thus, when a defendant fails to appear on the date of hearing and the plaintiff appears and proves the service of summons on defendant, then the court can proceed with the case ex-parte and pass a decree in favour of the plaintiff if he proves his case. The defendant against whom an ex-parte decree has been passed has the following legal remedies under CPC:

1. He can apply to court by which such decree is passed to set it aside (Order 9 Rule 13).
2. Prefer appeal against such decree (Section 96(2)).
3. Apply for review (Order 47 and Section 114).
4. File suit on ground of fraud.

These are the legal provisions available to the defendant for setting aside an exparte decree.

The facts of the present case at hand suggest that in tenant has applied for setting aside the above said ex-parte eviction decree under Rule 13 Order 9 on the ground that he was ill and his counsel had forgotten to mention the case in his diary.

In this regard, Order 9 Rule 13 C.P.C. provides that if defendant satisfies the court that he was prevented by “sufficient cause” from appearing on the date of hearing of the case, the court will set aside decree passed against him. However, expression “sufficient cause” has not been defined. Thus every case has to be seen in the light of peculiar facts of the case.

In the case of G.P. Srivastva v. R.K. Raizada, AIR 2000 SC 1221, the Hon’ble Supreme Court has made the following observations:

“Under Order 9 Rule 13 C.P.C., an ex-parte decree passed against defendant can be set aside upon the satisfaction of court that either summons were not duly served upon defendant or he was prevented by “sufficient cause” from appearing when suit was called for hearing. Words “was prevented by sufficient cause from appearing” must be liberally construed to enable the court to do complete justice between parties. “Sufficient cause” for the purpose of O. 9 R. 13 CPC has to be construed as elastic expression for which no hard and fast Rule can be laid down.”

Thus, if we apply the above observation to the present case at hand, the tenant (defendant) took the plea that he was lying ill on the date of hearing of suit for which he has filed an Affidavit as well through Medical Certificates were not produced which could substantiate his plea. The next reason for the defendant was that his counsel forgot to mention the case in Diary and his counsel also failed to appear. To substantiate this claim, the defendant filed an Affidavit of counsel and a diary is produced. Thus, it can be said that the defendant had a “sufficient cause” which prevented him from appearing in court on the relevant date.

No strict proof of the fact of illness is to be shown from the defendant side and taking the liberal view of the term “sufficient case” the application of the defendant should be allowed to be made under Order 9 Rule 13 of C.P.C. and ex-parte eviction decree should be set aside.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. CPC Mains Questions Series: Important Questions Part – I of X
2. CPC Mains Questions Series: Important Questions Part – II of X
3. CPC Mains Questions Series: Important Questions Part – III of X
4. CPC Mains Questions Series: Important Questions Part – IV of X
5. CPC Mains Questions Series: Important Questions Part – V of X
6. CPC Mains Questions Series: Important Questions Part – VI of X
7. CPC Mains Questions Series: Important Questions Part – VII of X
8. CPC Mains Questions Series: Important Questions Part – VIII of X
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