Whether court should proceed exparte even if there is no proper service of summons?

 In the present case, the notice was sent initially by RPAD and the envelope has returned with endorsement D/L 23-08-16 and 24-08-16. An intimation was given on 25-08-2016 and as the addressee did not visit the post office for collecting the registered post envelope, it was returned as unserved. The envelope nowhere shows that it was refused by the noticee i.e Appellant herein. Thereafter, summons was reissued through bailiff. That time the opponent was not there. The papers disclose that the notice was issued for the first time on 13-06-2016 and the first notice issued returned unserved as the bailiff did not get sufficient time for service.

8. This is a custody matter of a child before the Additional District Judge-5, Aurangabad, who was expected to be sensitive to the rights of the parties and was bound to verify the record before passing ex-parte order. In the first place, there was no attempt to serve the notice dated 14-08-2016 for want of time, still the Advocate for appellant filed false application dated 20-08-2016 (Exhibit-7) that the opponent No. 1 was avoiding to accept the notice. There was no material to accept the statement, still the Court proceeded with the application. Pertinently, the claim was filed at Jalgaon and the present appellant was residing with her father at Bhadgaon, District Jalgaon. As per Order V of the CPC, there is no provision of effecting service by mere RPAD. Still, the application was casually allowed. When there was no service by RPAD, still the ex-parte order was passed. The RPAD envelope does not bear the endorsement as not claimed, still the order shows that there was an endorsement as not claimed. Even if, it is assumed to be true, still such endorsement does not mean that it is endorsement of refusal to accept the service. Even if, there would have been refusal to accept the service as per Order V, Rule 17 of the CPC, service by pasting/affixing the copy of notice + plaint on the outer door or some other conspicuous part of the house was essential alongwith the report to that effect of the bailiff. No such efforts were made. Only one attempt was made through bailiff when the opponent was not found in house. This type of casual approach by a District Judge in the sensitive matter of child custody for proceeding exparte without application of mind was not expected. As there was no service of notice, the impugned ex-parte Order and Judgment is not tenable and deserves to be set-aside.

In the High Court of Bombay

(Before A.M Dhavale, J.)

 Jayshri Gajendra Mahajan,v. Gajendra Pandit Mahajan, 

First Appeal No. 2815 of 2017

With

CA/9798/2017 in FA/2815/2017

Decided on August 7, 2018

Citation: 2018 SCC OnLine Bom 2233

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Procedure to be followed by court if order of discovery of documents is not complied

 Even assuming that in certain circumstances the provisions of Order XI, Rule 21 must be strictly enforced, it does not follow that a suit can be lightly thrown out or a defence struck out, without adequate reasons. The test laid down is whether the default is wilful. In the case of a plaintiff, it entails in the dismissal of the suit and, therefore, an order for dismissal ought not be made under Order XI, Rule 21, unless the court is satisfied that the plaintiff was wilfully withholding information by refusing to answer interrogatories or by withholding the documents which he sought to discover. In such an event, the plaintiff must take the consequence of having his claim dismissed due to his default, i.e. by suppression of information which he was bound to give : Denvillier v. Myers. (1883) WN 58. In the case of the defendant, he is visited with the penalty that his defence is liable to be struck out and to be placed in the same position as if he had not defended the suit. The power for dismissal of a suit or striking out of the defence under Order XI, Rule 21, should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party.

16. It is well settled that the stringent provisions of Order XI, Rule 21 should be applied only in extreme cases, where there is contumacy on the part of the defendant or a wilful attempt to disregard the order of the court is established.

17. An order striking out the defence under Order XI, Rule 21 of the Code should, therefore, not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful attempt to disregard the order of the court. The rule must be worked with caution, and may be made use of as a last resort .

 It was further contended that the High Court was in error in observing that 'in view of the clear language of Order XI, Rule 21' the defendant has no right to cross-examine the plaintiff's witnesses. A perusal of Order XI, Rule 21 shows that where a defence is to be struck off in the circumstances mentioned therein, the order would be that the defendant 'be placed in the same position as if he has not defended'. This indicates that once the defence is struck off under Order XI, Rule 21, the position would be as if the defendant had not defended and accordingly the suit would proceed ex-parte. In Sangram Singh v. Election Tribunal MANU/SC/0044/1955 : [1955]2SCR1 it was held that if the court proceeds ex-parte against the defendant under Order IX, Rule 6(a), the defendant is still entitled to cross-examine the witnesses examined by the plaintiff. If the plaintiff makes out a prima facie case the court may pass a decree for the plaintiff. If the plaintiff fails to make out a prima facie case, the court may dismiss the plaintiff's suit. Every Judge in dealing with an ex-parte case has to take care that the plaintiff's case is, at least, prima facie proved.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2126 of 1978

Decided On: 07.08.1978

Babbar Sewing Machine Company Vs. Trilok Nath Mahajan

Hon'ble Judges/Coram:

A.N. Sen, D.A. Desai and Jaswant Singh, JJ.

citations: 1978 AIR 1436, 1979 SCR (1) 57

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Whether court can grant custody of child to father if mother is proceeded exparte in guardian and ward Act proceeding?

It is trite law that paramount consideration in such matters is
the welfare of the children.  In my opinion, it was the duty of the District
Judge to cause appearance of the child­Aryan before the Court and hold
interview of the child in­camera to know view of the child  supposedly
with   sufficient understanding.   Had the District Judge held interview
with the child, I think, he would have known several things which have
come to the surface due to the ex parte judgment.    There is a failure to
find out whether the welfare of the children could be found out at the
present place of residence of the wife.  It is difficult to understand as to

how the learned District Judge could record a finding in para 10 that
merely because the written statement was not filed and the husband was
not cross­examined, he has no reason to disbelieve the allegations of the
respondent­husband   It is not possible for me to agree with such kind of
approach since in a case under the Guardian and Wards Act, the District
Judge was bound to make thorough enquiry, keeping in mind that the
paramount consideration is welfare of the children.  In my opinion, there
is a failure on the part of learned District Judge in adverting to the above
aspects.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Appeal From Order No.100/2013
Smt. Kiran Amol Ambhore, 

V 
Amol Ramdas Ambhore, 

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM:­ A. B. CHAUDHARI, J.
DATED :­ 04.04.2014
Citation; 2015(7) ALLMR264

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Whether judge should write reasoned judgment when deft was proceeded exparte?

This Court in Balraj Taneja & Anr. V. Sunil Madan & Anr., AIR 1999 SC 3381 dealt with the issue and held that even in such fact- situation, the court should not act blindly on the averments made in the plaint merely because the written statement has not been filed by the defendant traversing the facts set out by the plaintiff therein. Where a written statement has not been filed by the defendant, the court should be little cautious in proceeding under Order VIII, Rule 10, CPC. Before passing the judgment against the defendant it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly by passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court’s satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who failed to file the written statement. However, if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. The power of the court to proceed under Order VIII, Rule 10 CPC is discretionary. The court further held that judgment as defined in Section 2(9) CPC means the statement given by the Judge of the grounds for a decree or order. Therefore, the judgment should be 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. The court further held as under:-

“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.” (Emphasis added)

Supreme Court of India

Shantilal Gulabchand Mutha vs Tata Engineerng & Locomotive ... on 18 March, 2013

Bench: B.S. Chauhan, Fakkir Mohamed Kalifulla

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What is duty of court if case was decided ex parte against defendant?

The absence of the Defendant does not absolve the Trial Court from fully satisfying itself of the factual and legal veracity of the Plaintiff’s claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the Trial Court as well as the Executing Court to be fully satisfied that the claim has been proved and substantiated to the hilt by the Plaintiff. Reference to Shantilal Gulabchand Mutha vs Tata Engineering and Locomotive Company Limited, (2013) 4 SCC 396, will be sufficient. The failure to file a Written Statement, thereby bringing Order VIII Rule 10 of the CPC into operation, or the factum of Defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order VIII Rule 10 CPC and on the invocation of Order IX of the CPC, the Court is nevertheless duty- bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted. 

Supreme Court of India

Maya Devi vs Lalta Prasad on 19 February, 2014

Bench: K.S. Radhakrishnan, Vikramajit Sen

Citation;(2015) 5 SCC588

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Precaution to be taken by court prior to passing of exparte order against other party

Harmonious construction of Rules 17 and 19 of Order V of the Code
of Civil Procedure goes to show that acceptance of report of the service of the
summons is a serious and solemn act and not merely an empty formality. Object to
serve summons on the respondent is to enable him to know about institution of the
proceedings against him and enable him to resist the said proceeding filed against
him. Law of procedure is framed in such a manner that principle of natural justice
is scrupulously followed. The basic requirement of this rule is that the decision
should not be reached behind back of the affected party and such party should not
be precluded from participating in the proceeding. Therefore, it becomes the
prime duty of the Court concerned to see that all procedural requirements are duly
adhered to prior to proceeding ex-parte against the concerned party to the
litigation.
:Proof of due service of summons is essential condition for proceeding
ex parte against the concern respondent. If record of case in hand is perused, it
appears that though the Process Serving Officer / Bailiff has submitted his report
stating that, respondent wife has refused to accept the summons in the court
premises at 10.45 a.m. of 17.11.2011, he has not filed the same 
alongwith his affidavit. Another endorsement on summons Exh.No.5 shows that, the Process
Serving Officer has made efforts to serve the original respondent - wife at given
address i.e. N-12, B-Sector, 48/7, T.V. Center, HUDCO, Aurangabad, however
said report also not accompanied with an affidavit. Order passed below Exh.No.1
on 17.11.2011 by which the learned Judge, Family Court proceeded ex parte
against the respondent – wife, does not shows that mandatory provisions as
envisaged by Rules 17 and 19 of the Code of Civil Procedure were complied with
by the learned Judge of Family Court. There is no record to show that the Process
Serving Officer / Bailiff was examined by the learned Judge Family Court,
Aurangabad prior to proceeding ex parte against the respondent wife. As report of
the Process Serving Officer / Bailiff at Exhibit 5 relied upon by the learned Judge
was to the effect that original respondent / wife has refused to accept the summons
when it was sought to be served on her, as per mandate of Rule 19 of Order V of
the Code of Civil Procedure, it was incumbent on the part of the learned Judge to
examine said Process Serving Officer / Bailiff on oath or to cause him to be so
examined by another Court touching his proceedings. Obviously, the intention of
such examination is to see that chances of a false endorsement of such attempt to
serve the summons and refusal thereof are minimized. If the Process Serving
Officer / Bailiff is examined on oath and during such examination, it is found that
the statement so made by him is false, then such Process Serving Officer / Bailiff
makes himself liable for prosecution. Thus, there is inbuilt guard against false
report regarding service of summons. The learned Judge of the Family Court has
not taken precaution to adhere to the provisions of Rule 19 of the Code of Civil
Procedure while passing order below Exhibit 1 regarding service of summons on
original respondent / wife. In fact, it is seen that the said order below Exhibit 1

was passed in a casual manner not even declaring that the summons has been duly
served on respondent/wife. There seems to be no application of mind to this aspect
by the learned Judge of the Family Court at Aurangabad. At least the order below
Exh.No.1 does not show such application of mind.
Signature of the original petitioner is appearing on summons at
Exh.No. 5 as if to show that refusal to accept the summons by original respondent
– wife is in his presence. Report on separate sheet given on 17.11.2011 does not
bear such signature. Rule 19 of the Family Court Rules, 1988, shows that if
bailiff attempted to serve the summons and person refused to accept it then the
person who accompanies the Bailiff for the purpose of identification, at the time of
service is also required to file his affidavit. In the case in hand, such affidavit of
the original petitioner is also missing.
Thus even provisions of Rule 17 do not
seem to be complied with. For all these reasons, it becomes crystal clear that the
learned Judge, Family court erroneously proceeded ex parte against the
Respondent-wife and, therefore, impugned judgment and decree of dissolution of
marriage passed by the learned Judge of Family Court, Aurangabad dated 10 th
February, 2012 in Petition No.A-311/2011 cannot be sustained. It needs to be set
aside for non-compliance of the Rules mentioned supra, so also the same is
violating the principles of natural justice as no proper opportunity of hearing was
accorded to the Respondent-wife. 

FAMILY COURT APPEAL NO.13 OF 2013.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CIVIL APPELLATE JURISDICTION.
Deepali w/o Pratap Sonawane

V
Pratap s/o Irappa Sonawane

CORAM : B.P. Dharmadhikari &
       A.M. Badar, JJ.
DATE : 22nd December, 2014.
Citation;2015(3) ALLMR341

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Whether court is empowered to proceed and decide suit ex parte on the same day when defendant was found absent?

 Having considered change in the statute i.e. Clause (a) of Order IX, Rule 6, CPC vide amendment made in 1977 and also public policy that an interpretation, which advances principle of fair play, opportunity of hearing and which is consistent with principles of natural justice, must be adopted by a Court so that without any unnecessary hindrance to expeditious and speedy disposal of a litigation, an adjudication may be made as much as possible, giving fair opportunity of hearing to both the sides. I am inclined to follow and adopt reasoning, i.e. Order IX, Rule 6(1)(a), as it stands today, which contemplates a situation where the Court has fixed a case for certain proceedings, and, defendant does not appear, to remove the barrier, it may pass an order that now the suit shall proceed ex parte, but then for such ex parte proceeding, another date has to be fixed, giving an intimation so that defendant may also have an opportunity to learn that now the case has been fixed on a particular date for ex parte hearing and if absence was for reasons beyond his control, or he had sufficient good reason justifying his absence on earlier date, he may not be prejudiced by being deprived of participation in a hearing on the matter and may have a decision on merits of the case. Such a view would advance legislative intention and would also be conducive to the principles of natural justice and fair play to all.Court was not empowered to proceed and decide suit ex parte on the same day when defendant was found absent

75. In my view, order dated 15.10.1993, in so far as Trial Court proceeded to hear the suit ex parte and reserved the judgment, was wholly illegal and beyond its competence. Consequently, the order dated 23rd August, 1994 passed by Trial Court rejecting application of the petitioner under Order IX, Rule 7, CPC also cannot sustain.

Equivalent Citation: 2013(5)ADJ629, 2014(2) ALJ 477., 2013 6 AWC6491,AIR2014(NOC)538 ALLAH

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Writ Petition No. 44410 of 1999

Decided On: 09.01.2013

 Kailash Nath

Vs.

 Xth Additional District Judge and Others

Coram:Sudhir Agarwal, J.

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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

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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

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Basic principle for grant of exparte interim order

 An ex parte order is only of short duration and it is granted to safeguard the interest of the applicant, but, at the same time, such an order cannot be granted as a matter of course. A Court or Tribunal has also to consider the consequences of such an order if ultimately the order is to be revoked after hearing the defendant. In such circumstances, the Tribunal must put the applicant on terms while granting an ex parte order and compensate the defendant in case the ex parte order was obtained without any justification and harm has been caused to the defendant. It must be remembered that an ex parte order can also affect the reputation of the person against whom it is issued and sometimes it may be difficult to undo the damage caused by an interim order. A Tribunal while granting ex parte order of stay or injunction must record reasons, may be brief one, and cannot pass a stereo-typed order in terms of the prayer made. Then an ex parte order cannot be allowed to continue indefinitely and the continuance of interim order has to be decided without undue delay when the defendant puts in his appearance. It is not necessary to hear long drawn arguments. Principles on which an interim order can be granted are well settled. Sub-section (8) of Section 19 requires that application for recovery of debt itself is to be disposed of finally within a period of six months from the date of receipt of the application. That also shows the urgency to decide is an interim order of injunction or stay granted ex parte is to be continued or not. In our view, the High Court was not correct in holding that a Tribunal under the Act has no power to grant an ex parte order of injunction or stay.

Supreme Court of India

The Industrial Credit And ... vs Grapco Industries Ltd. & Ors. on 14 May, 1999

Equivalent citations: AIR 1999 SC 1975, 1999 (5) ALT 18 SC

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