Summons, Appearance and Ex Parte Decrees

A civil suit can proceed only after the defendant is properly told about it, and that notice is the summons under Order V of the Code of Civil Procedure, 1908. If the summons is duly served and the defendant still does not appear, the court may hear the suit ex parte under Order IX Rule 6 and pass a decree. The defendant can then apply under Order IX Rule 13 to set that decree aside, usually within thirty days, by showing that the summons was not duly served or that sufficient cause kept him away.

This explainer is written for B.A. LL.B. and LL.B. students preparing for civil procedure papers, and for citizens who have just learned that a court passed a decree against them without hearing them. The rules are short, but small mistakes about time limits and choice of remedy cost people their case.

What does the summons have to do?

Section 27 of the CPC says that once a suit is duly instituted, a summons may be issued to the defendant to appear and answer the claim. Order V Rule 1 fills in the detail. The summons calls the defendant to appear and to file a written statement of defence within thirty days from the date of service. If he misses that, the court may, for reasons recorded in writing, allow a later date, but not later than ninety days from service. In commercial disputes the outer limit is one hundred and twenty days, after which the right to file the written statement is forfeited.

Service can happen in several ways under Order V:

• Personal service on the defendant or his authorised agent, which is preferred wherever practicable (Rule 12).
• Service on an adult member of the family residing with the defendant when he cannot be found (Rule 15). A servant does not count as family.
• Affixing the summons on the outer door of the house when the defendant refuses to sign or cannot be found (Rule 17).
• Service by registered post, speed post, approved courier or electronic means, as the High Court's rules permit (Rule 9).
• Substituted service by court order, such as affixing at the court house and the last known residence or publication in a local newspaper, when the defendant is keeping out of the way (Rule 20).

Courts can presume that a letter sent by registered post reached the addressee. In Parimal v. Veena alias Bharti (decided 8 February 2011) the Supreme Court relied on Section 114, Illustration (f) of the Evidence Act and Section 27 of the General Clauses Act, 1897 for this, and held that the presumption is rebuttable. The Evidence Act has since been replaced, and the matching provision now is Section 119 of the Bharatiya Sakshya Adhiniyam, 2023, which came into force on 1 July 2024.

What happens when a party does not appear?

Order IX deals with the consequences of non-appearance. A simple way to remember it is to ask who is absent.

1. Plaintiff did not pay process charges, so no summons went out: the court may dismiss the suit (Rule 2).
2. Neither party appears: the court may dismiss the suit (Rule 3). The plaintiff may file a fresh suit within limitation or apply to restore it (Rule 4).
3. Only the plaintiff appears and service is proved: the court may hear the suit ex parte (Rule 6(1)(a)).
4. Defendant set ex parte turns up at an adjourned hearing: he may be heard on showing good cause for his earlier absence (Rule 7).
5. Only the defendant appears: the suit is dismissed unless the defendant admits the claim (Rule 8). The plaintiff cannot file a fresh suit on the same cause of action but can apply to set aside the dismissal for sufficient cause (Rule 9).

Article 122 of the Limitation Act, 1963 gives thirty days from the date of dismissal to apply for restoration of a suit dismissed for default.

How is an ex parte decree set aside?

Under Order IX Rule 13 the defendant applies to the same court that passed the decree. The court shall set it aside if he shows either of two things: the summons was not duly served, or he was prevented by sufficient cause from appearing when the suit was called on for hearing. The court can impose terms as to costs or payment into court. The second proviso adds a limit: a decree will not be set aside merely for an irregularity in service if the defendant had notice of the hearing date and enough time to appear.

Article 123 of the Limitation Act fixes thirty days. Time runs from the date of the decree, or, where the summons was not duly served, from the date the applicant had knowledge of the decree. Substituted service under Order V Rule 20 is not treated as due service for this purpose. A late application can be saved only by showing sufficient cause under Section 5 of the Limitation Act.

Take a tenant in Madurai whose landlord obtains an ex parte eviction decree while the tenant was in hospital. Discharge papers and medical records showing that he could not attend are the kind of proof that supports sufficient cause. A tenant who simply ignored a summons he received will find the court far less sympathetic.

How has the Supreme Court read these rules?

• Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787: a defendant may file an appeal under Section 96(2) and a Rule 13 application at the same time. Once the appeal is dismissed, the ex parte decree merges with the appellate order and a Rule 13 application no longer lies. The converse does not follow, so dismissal of a Rule 13 application does not bar an appeal.
• Parimal v. Veena alias Bharti (2011): sufficient cause means the party did not act negligently and cannot be blamed for his absence. The test is whether he honestly intended to be present and did his best to do so.
• G. Ratna Raj v. Sri Muthukumarasamy Permanent Fund Ltd. (1 February 2019): an appeal from the Madras High Court, where the Supreme Court treated whether sufficient ground was shown as a question of fact and upheld setting aside the decree on payment of costs.
• The Koushik Mutually Aided Cooperative Housing Society v. Ameena Begum, 2023 INSC 1065: an order rejecting a Rule 13 application is appealable under Order XLIII Rule 1(d), so a civil revision under Section 115 was not maintainable. An order allowing the application is not appealable.

What should a citizen do on finding an ex parte decree?

1. Note the date of the decree and the date you first learned of it. The thirty day clock matters.
2. Obtain certified copies of the decree, the order sheet and the process server's report or postal acknowledgement.
3. Collect proof of why you were absent or why the service was defective.
4. Consult an advocate quickly on whether to file a Rule 13 application, an appeal, or both.
5. If you cannot afford a lawyer, approach the District Legal Services Authority or the college legal aid clinic for guidance.

How should you answer this in an exam?

A student in Nagercoil answering a ten mark question on ex parte decrees should open with the meaning, cite Order IX Rules 6 and 13, and then list the remedies: a Rule 13 application, an appeal under Section 96(2), review, and a suit on the ground of fraud. Mention Article 123 and its starting point. Use Bhanu Kumar Jain for concurrent remedies and Parimal for sufficient cause. Close with a short illustration. Examiners reward correct rule numbers and limitation periods more than long history.

Sources

• Supreme Court of India, Koushik Mutually Aided Cooperative Housing Society v. Ameena Begum (2023): judgment quoting Bhanu Kumar Jain on concurrent remedies.
• Supreme Court of India, G. Ratna Raj v. Sri Muthukumarasamy Permanent Fund Ltd. (2019): judgment on Order IX Rules 6 and 13.
• Parimal v. Veena alias Bharti (2011): full text of the Supreme Court judgment on sufficient cause.
• Limitation Act, 1963 (Tripura High Court copy): Articles 122 and 123 and Section 5.
• Bharatiya Sakshya Adhiniyam, 2023 (India Code): official text, including Section 119 on presumptions.
• Code of Civil Procedure, 1908 (India Code): official text of the Code.