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G. Ratna Raj (Dead) by LRs. v. Sri Muthukumarasamy Permanent Fund Ltd. & Anr.

Civil Appeal · 2019 INSC 123Decided 1 Feb 2019
Civil Appeal Nos. 2582-2583 of 2011
Justice Abhay Manohar Sapre · Justice Dinesh Maheshwari

Background

In a mortgage redemption suit, the plaintiff finished giving his evidence, but when the case was later listed for the defendants to lead their evidence, the defendants failed to appear and were proceeded against ex parte, resulting in a preliminary decree against them. The defendants then sought to have that decree set aside under Order 9 Rule 13 CPC, but the Trial Court rejected their application, holding the decree was not truly an "ex parte decree" since they had already filed a written statement and participated earlier in the case. The High Court reversed this and treated it as an ex parte decree that could be reopened.

Decision Breakdown

The Supreme Court examined Order 9 Rule 6 and Order 17 Rules 2 and 3 of the CPC and held that because the defendants had not led any evidence of their own before being set ex parte, the "Explanation" that can treat an absent party as "present" (available only when that party had already substantially led its evidence) did not apply. Since the defendants' absence meant no evidence was led on their behalf at all, the decree passed was correctly characterised as an ex parte decree capable of being set aside under Order 9 Rule 13. The Supreme Court upheld the High Court's view, dismissed the appeal, and directed the trial court to decide the original suit on its merits within a year.

Lesson Learnt

Whether a decree counts as "ex parte" (and can therefore be reopened) depends on whether the absent party had already led substantial evidence before being set ex parte: merely having filed a written statement earlier in the case is not enough to prevent the decree from being treated as ex parte.

Official source (sci.gov.in)View Judgment (PDF)

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