Supreme Court: Ex Parte Suit Cannot Be Dismissed on Ground of No Title in Absence of Pleading Contesting Title

As laid down in Man Kaur (dead) by LRs v.

Hartar Singh Sangha (2010) 10 SCC 512, there must be a valid

contract; that defendant committed breach of

and readiness and willingness of the plaintiff to

perform his part of contract. {Para 30}

31. In present case, all the three essentials are

present. However, the suit was dismissed for

lack of title in favour of the Respondent. No

issues or points for determination were framed

for the same. Appellant at no point was given an

opportunity to lead evidence on the same. In the

absence of any issues, and especially in the

absence of any pleading contesting title of the

Respondent, the Appellant could not be

expected to prove such title in a suit for specific

performance of Agreement to sell. Therefore,

omission to frame issues has caused prejudice

to the Appellant.

32. Hence, the judgment and decree passed by the

trial court does not fulfil the requirements of a

judgment as provided for under the Code of Civil

Procedure, 1908. The judgments and decree of

both the courts below are, therefore, not in

accordance with law and thus, set-aside. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2026

PRAMOD SHROFF  Vs MOHAN SINGH CHOPRA 

AUGUSTINE GEORGE MASIH, J.

Citation: 2026 INSC 378

Print Page

Bombay HC: Casual Absence Of Defendant On Insignificant Date Would Not Make Court Order Ex-Parte

  The term ‘ex-parte’ means in absence of party. Order IX of

the Code provides consequences of non-appearance of the party.

Particularly, Rule 6 to Order IX prescribes a procedure in the

contingency when only plaintiff appears. In case when summons was duly served but the defendant does not appear then the Court may make an order that the suit be heard ex-parte in terms of Sub-clause (a) of Clause (1) to Rule 6 of Order IX of the Code. Basically, when defendant fails to appear and consequently no evidence could be recorded on his behalf and defendant’s case is closed, then the Court is bound to proceed under Rule 2 of Order XVII of the Code. The basic requirement is the absence of defendant when the suit was called on for hearing resulting into deciding case without defendant’s presence. {Para 35}

36. The provisions of Order IX Rule 13 of the Code have beenintroduced to remedied the situation where the defendant is absent meaning thereby the cause was decided in his absence. It is for the reason that, there is no contest due to absence of defendant at the time of hearing. Even if written statement is filed but the defendant remains absent throughout till adjudication then certainly the decision can be termed as an ‘ex-parte’, however a casual absence of defendant on any intermediate date would not suffice to treat the decision ex-parte. The defendant cannot take disadvantage of his isolated absence on insignificant date to state that the order was ex-parte. In order to assume the character of ex-parte, there must be absence of defendantat the time of hearing, meaning thereby in his absence the Court has proceeded in passing the decree. In short, defendant’s voluntary act of not cross examining the party and not advancing arguments, is not capable enough to term the order as ‘ex-parte’.

37. In sum and substance, the order passed by the First

Authority after considering the rival contentions was purely on merit. The respondent was throughout present in the proceeding as well as participated till fag end. The First Authority has taken into account written statement of the respondent as well as his evidence affidavit was on record. The First Authority has heard submissions of the claimants in presence of the respondent and as per record also heard submissions of respondent too. It is not a case that on the date of hearing, the respondent was absent to claim the benefit. The factual position in all petitions is one and the same. The Second Authority fell in serious error in holding that the orders were ex-parte decision amenable to set aside in  terms of Order IX Rule 13 of the Code. In absence of the applicability of Order IX Rule 13 of the Code, the sameAuthority has no power to set aside its own order. Though submissionsare made on merits that the First Authority went wrong in assessingcompensation, however said challenge would squarely fall within thecompetence of the Appellate Forum and not to the same Authority. In short, the impugned orders passed in all petition are unsustainable in the eyes of law.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO S . 1667 OF 20 22

Jyoti  Mahesh Agrawal Vs Deputy Chief EngineerConstruction) Central Railway

CORAM : VINAY JOSHI, J.

Dated : 19.12.20222.

Print Page

Whether Judgment delivered by the court without hearing another side/ exparte is binding as precedent?

Also, in Municipal Corpn. of Delhi v. Gurnam Kaur,

(1989) 1 SCC 101 at 110, this Court stated:

“11. Pronouncements of law, which are not

part of the ratio decidendi are classed as

obiter dicta and are not authoritative. With all

respect to the learned Judge who passed the

order in Jamna Das case [Writ Petitions Nos.

981-82 of 1984] and to the learned Judge who

agreed with him, we cannot concede that this

Court is bound to follow it. It was delivered

without argument, without reference to the

relevant provisions of the Act conferring

express power on the Municipal Corporation

to direct removal of encroachments from any

public place like pavements or public streets,

and without any citation of authority.

Accordingly, we do not propose to uphold the

decision of the High Court because, it seems

to us that it is wrong in principle and cannot be

justified by the terms of the relevant

provisions. A decision should be treated as

given per incuriam when it is given in

ignorance of the terms of a statute or of a rule

having the force of a statute. So far as the

order shows, no argument was addressed to

the court on the question whether or not any

direction could properly be made compelling

the Municipal Corporation to construct a stall

at the pitching site of a pavement squatter.”

(Emphasis Supplied)

It is clear, therefore, that where a matter is not argued at

all by the respondent, and the judgment is one of

reversal, it would be hazardous to state that the law can

be declared on an ex parte appraisal of the facts and the

law, as demonstrated before the Court by the appellant’s

counsel alone. That apart, where there is a detailed

judgment of the High Court dealing with several

authorities, and it is reversed in a cryptic fashion without

dealing with any of them, the per incuriam doctrine kicks

in, and the judgment loses binding force, because of the

manner in which it deals with the proposition of law in

question. Also, the ratio decidendi of a judgment is the

principle of law adopted having regard to the line of

reasoning of the Judge which alone binds in future cases.

Such principle can only be laid down after a discussion of

the relevant provisions and the case law on the subject. If

only one side is heard and a judgment is reversed,

without any line of reasoning, and certain conclusions

alone are arrived at, without any reference to any case

law, it would be difficult to hold that such a judgment

would be binding upon us and that we would have to

follow it. In the circumstances, we are of the opinion that

the judgment in Yasangi Venkateswara Rao (supra)

cannot deter us in our task of laying down the law on the

subject. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 134 OF 2013

JAYANT VERMA Vs  UNION OF INDIA 

Author: R.F. NARIMAN, J.

Dated: February 16, 2018.

Citation: 2018(4) SCC 743

Print Page

Duty of court while deciding suit exparte or without written statement

 Even if the suit proceeds ex-parte and in the absence of a written statement, unless the applicability of Order VIII Rule 10 of the CPC is attracted and the Court acts thereunder, the necessity of proof by the plaintiff of his case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the Court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex-parte the Court is not bound to frame issues under Order XIV and deliver the judgment on every issue as required by Order XX Rule 5. Yet the Trial Court would scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the 'point for determination' and proceed to construct the ex-parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence.

Supreme Court of India

Ramesh Chand Ardawatiya vs Anil Panjwani on 5 May, 2003

Equivalent citations: AIR 2003 SC 2508, 2003 (4) ALD 10 SC, 2003 (3) AWC 2511 SC, JT 2003 (4) SC 450, 2003 (4) MhLj 579, (2003) 3 MLJ 26 SC, (2003) 134 PLR 636, 2003 (4) SCALE 652, (2003) 7 SCC 350, 2003 3 SCR 1149, 2003 (2) UJ 1210 SC

Bench: R Lahoti, B Kumar

Read full judgment here; click here

Print Page

Precaution to be taken by court while deciding suit exparte

It is not the law that if a defendant fails to appear in response to the notice of summons of the Court, a Court is bound to pass a decree at once or on the evidence adduced by the plaintiff. In an ex parte case also, a plaintiff has to prove his case by producing legal evidence for passing a decree as it is settled that a Court must act on admissible and legal evidence. While considering the evidence, the Court will not be bound to accept the statement of witnesses only because they have not been effectively cross-examined or evidence in rebuttal has not been adduced. A Judge is not a computer. In Civil cases, while assessing the value attached to oral evidence, a Judge has to test the evidence placed before him on the basis of probabilities. See, Chaturbhuj Pande v. Collector Raigarh (AIR 1969 SC 255 : 1969 All LJ 159; Modi P.R. v. Collector, Durg (1975 JLJ 595).1

Madhya Pradesh High Court

Smt. Laxmibai vs Keshrimal Jain on 7 September, 1994

Equivalent citations: AIR 1995 MP 178, 1995 (0) MPLJ 105

Print Page

Whether court is supposed to give reasons in exparte judgment?

"Judgment" as defined in Section 2(9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20, Rule 4 (2) which says that a judgment :

"shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision."

It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court and in what manner. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment.

In an old case, namely, Nanhe vs. Saiyad Tasadduq Husain (1912) 15 Oudh Cases 78, it was held that passing of a mere decree was material irregularity within the meaning of Section 115 of the Code and that even if the judgment was passed on the basis of the admission made by the defendant, other requirements which go to constitute "judgment" should be complied with.

In Thippaiah and others vs. Kuri Obaiah, ILR 1980 (2) Karnataka 1028, it was laid down that the Court must state the grounds for its conclusion in the judgment and the judgment should be in confirmity with the provisions of Section 2(9) of the Code of Civil Procedure. In Dineshwar Prasad Bakshi vs. Parmeshwar Prasad Sinha, AIR 1989 Patna 139, it was held that the judgment pronounced under Order 8 Rule 10 must satisfy the requirements of "judgment" as defined in Section 2(9) of the Code.

Learned counsel for respondent No. 1 contended that the provisions of Order 20, Rule 1 (2) would apply only to contested cases as it is only in those cases that "the points for determination" as mentioned in this Rule will have to be indicated, and not in a case in which the written statement has not been filed by the defendants and the facts set out in the plaint are deemed to have been admitted. We do not agree. Whether it is a case which is contested by the defendants by filing a written statement, or a case which proceeds ex-parte and is ultimately decided as an ex-parte case, or is a case in which the written statement is not filed and the case is decided under Order 8 Rule 10, the Court has to write a judgment which must be in conformity with the provisions of the Code or at least set out the reasoning by which the controversy is resolved.

Supreme Court of India

Balraj Taneja & Anr vs Sunil Madan & Anr on 8 September, 1999

Print Page