Ex Parte Commissioner, Ex Parte Decree: Can the Defendant Challenge It in Appeal?

 Q :- Lower court has appointed court commissioner without hearing defendant as he was proceeded exparte before trial court. Whether he can challenge that order before appellate court? what order the appellate court should pass in such circumstances?  

Ans:- Civil procedure does not permit justice to become one-sided merely because the defendant has been proceeded ex parte. A recurring question arises where, after setting the defendant ex parte, the trial court appoints a Court Commissioner without hearing him. Can that order be challenged before the appellate court, and if yes, what should the appellate court do? The answer lies in a careful reading of Section 96(2), Section 105 and Order XXVI Rule 18 of the Code of Civil Procedure, 1908.

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Supreme Court: Courts Cannot Prepone Date Of Hearing Without Giving Notice To Other Party

  When the defendants had appeared in the suit, the act of preponing the date without notice to them or their advocate was completely illegal and contrary to elementary principles of natural justice. Therefore, it follows that the order striking out the defendants' defence is completely illegal, and the said order deserves to be set aside. {Para 5}

 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2394/2023

RANJIT SINGH & ANR. Vs  STATE OF UTTARAKHAND & ORS. 

Author: ABHAY S OKA, J.

Citation: 2024 INSC 724.

Dated: SEPTEMBER 12, 2024.

Read full Judgment here: Click here.

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Supreme court: Defendant Can Cross-Examine Plaintiff Even If Suit Is Proceeding Ex-Parte Against Him & Written Statement Isn't Filed

On 1st July, 2002, the defendants applied for setting aside theorder dated 3rd May, 2002 by which their defence was struck out. The application proceeds on the allegation that on 3rd May, 2002, the Court proceeded to strike out the defendants' defence without giving them an opportunity of being heard and the hearing was conducted ex parte. Very interestingly, a reply was filed to the said application by the plaintiffs in which a stand has been taken that as the suit was directed to proceed ex parte, there was no occasion to give an intimation to the defendants or their counsel that the application will be taken up on 3rd May, 2002. Therefore, it is an accepted position that the application for striking out the defence of the defendants was taken up on the cause list on 3rd May 2002 without issuing notice to the defendants, though on 22nd April, 2002, the next date was already fixed as 30th May 2002.

The application for setting aside the order dated 3rd May, 2002 was rejected. At this stage, we must clarify the legal position. Even if a defendant does not file a written statement and the suit isordered to proceed ex parte against him, the limited defence

available to the defendant is not foreclosed. A defendant can

always cross-examine the witnesses examined by the plaintiff to

prove the falsity of the plaintiff's case. A defendant can always

urge, based on the plaint and the evidence of the plaintiff, that

the suit was barred by a statute such as the law of limitation.

Therefore, notwithstanding an order passed earlier to proceed ex

parte, while deciding an application for striking out the defence,

it was the duty of the Court to give an opportunity of being heard to the defendants. However, that was not done. As the suit was fixed on 30th May, 2002, the defendants were entitled to a notice that the suit would be taken up on an earlier date for hearing the application for striking out the defence. When the defendants had appeared in the suit, the act of preponing the date without notice to them or their advocate was completely illegal and contrary to elementary principles of natural justice. Therefore, it follows that the order striking out the defendants' defence is completely illegal, and the said order deserves to be set aside. {Para 5}

 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2394/2023

RANJIT SINGH & ANR. Vs  STATE OF UTTARAKHAND & ORS. 

Author: ABHAY S OKA, J.

Citation: 2024 INSC 724.

Dated: SEPTEMBER 12, 2024.

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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.

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What is duty of a litigant who is seeking exparte relief?

  The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commissioners, (1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136 in the following words:

"[I]t has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts- it says facts, not law. He must not misstate the law if he can help it; the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it the Court will set aside any action which it has taken on the faith of the imperfect statement".

(emphasis supplied)

REPORTABLE  

Supreme Court of India

K.D.Sharma vs Steel Authorities Of India Ltd.& ... on 9 July, 2008

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Whether the court must record evidence if defendant is exparte?

In view of the non-appearance on behalf of the Defendant despite

service, this Court is of the opinion that no ex parte evidence would be required in this matter, in view of the decision of the ld. Single Judge of this Court in Disney Enterprises Inc. & Anr. v. Balraj Muttneja &Ors. [CS (OS) 3466/2012 decided on 20th February, 2014]. The same has been reiterated by the Court in S. Oliver Bernd Freier GMBH & CO. KG v. Jaikara Apparels and Ors. [210 (2014) DLT 381], as also, in United Coffee House v. Raghav Kalra and Ors. [2013 (55) PTC 414 (Del)]. The relevant observations from the judgment in Disney Enterprises Inc. (supra), are as under:

“3. Though the defendants entered appearance

through their counsel on 01.02.2013 but remained

unrepresented thereafter and failed to file a written

statement as well. The defendants were thus directed to

be proceeded ex-parte vide order dated 04.10.2013and

the plaintiffs permitted to file affidavits by way of

exparte evidence.

 4. The plaintiffs, despite having been

granted sufficient time and several opportunities, have

failed to get their affidavits for leading ex-parte

evidence on record. However, it is not deemed

expedient to further await the same and allow this

matter to languish, for the reason that I have in

Indian Performing Rights Society Ltd. Vs. Gauhati

Town Club MANU/DE/0582/2013 held that where the

defendant is ex parte and the material before the

Court is sufficient to allow the claim of the plaintiff,

the time of the Court should not be wasted in

directing ex parte evidence to be recorded and which

mostly is nothing but a repetition of the contents of the

plaint.” {Para 13}

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 CS (COMM) 78/2021 & I.As. 2346/2021, 9196/2021

TM 25 HOLDING BV  Vs UMA MANJA SHIVAPPA 

CORAM:

JUSTICE PRATHIBA M. SINGH

Dated : 28th April, 2022

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Whether the court can proceed ex parte against the accused in cheque dishonour case and give exparte decision regarding his guilt or otherwise of the matter?

Indisputably the provisions contained in Section 138 of the Negotiable Instruments Act is a substantive offence which deals with the conviction of the accused on being found guilty of such offence and the imposition of sentence on him on being so convicted thereunder. It is a criminal offence and not merely a recovery proceeding as sought to be argued on behalf of the petitioner and hence the proceedings instituted under Section 200 of Cr.P.C for the alleged offence under Section 138 of the Negotiable Instruments Act like any other criminal trial has to be held in the presence of the accused. It is no doubt true that the trial for such offence should be a summary trial. But summary trial does not mean that the trial could be proceeded in the absence of an accused. Section 143 of the Negotiable Instruments Act does not direct the Court to follow the procedure prescribed for trials under the Civil Procedure Code and on the contrary, it directs the Court to follow the procedure prescribed for trials under the Cr.P.C. Hence it is a criminal trial. Even in the case of summary trials, the plea of the accused has to be recorded and if the accused is found guilty after a regular trial, the accused will have to be convicted and substantive sentence of imprisonment or fine has to be imposed. That apart the evidence has to be taken in the presence of the accused. It is equally true that under Section 144 of the Negotiable Instruments Act, the evidence could be adduced in the form of an affidavit. But then that affidavit has to be countered by the other side in order to hold the accused guilty in case if the substance of the accusations made against the accused are found true and also he will have to be convicted of the substantive sentence for the offence under Section 138 of the Negotiable Instruments Act. All these cannot be done in the absence of an accused. Therefore having regard to the nature of procedure to be undergone in a criminal trial, the presence of the accused is a must. However one exception can be made in the case of an accused which is a company which cannot be convicted with a substantive sentence of imprisonment and could be sentenced with fine only in case if it is found guilty of the offence under Section 138 of the Negotiable Instruments Act. But normally a criminal trial whether it be for the offence under the IPC or under the Negotiable Instruments Act, cannot be held in the absence of an accused as the evidence at the trial has to be taken either in his presence or in the presence of his counsel in case if the personal presence of the accused is dispensed with in accordance with law. It is apparent from Section 4 that the provisions of the Cr.P.C are applicable where an offence under the Penal Code or under any other law is being investigated, inquired into, tried or otherwise dealt with. Section 273 of Cr.P.C makes it obligatory that the evidence for the prosecution and defence should be taken in the presence of the accused. The Rule enacted in this Section makes it imperative that all evidence in an inquiry or trial shall be taken in the presence of the accused. That being so, no ex parte decision regarding the guilt or otherwise of the accused can be recorded in the absence of the accused. This being the clear position of law in case of criminal trials, it is to be held that no criminal trial where the plea of the accused has to be recorded, the evidence has to be taken at a trial and the accused if found guilty will have to be convicted and sentenced either with imprisonment or fine, could be effectively held in the absence of the accused. In other words, the ex parte procedure as prescribed under the civil law is unknown to criminal law. In this view of the matter, our answer to Question No. 3 must necessarily be in the negative.

IN THE HIGH COURT OF KARNATAKA

Reference in Criminal Petition No. 778/2005

Decided On: 30.06.2005

 Mac Charles (I) Ltd.  Vs.  Chandrashekar and Ors.

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