Failure to show sufficient cause for non-appearance bars setting aside an ex parte decree.

The respondent–plaintiff executed a sale deed in favour of the appellants in 2008 for a consideration of ₹9,37,125, against which only ₹6,40,000 was paid. He consequently instituted a suit for recovery of the balance amount of ₹2,97,125 with interest.

Notices for settlement of issues were issued in the suit. The notice sent to appellant No. 3, Nilesh, was received, while the other appellants refused service. Treating service as complete, the trial Court proceeded ex parte and, by judgment and decree dated 23 December 2011, directed the appellants to pay ₹2,97,125 with interest at 6% per annum.

After execution proceedings commenced, the appellants received notice on 4 May 2012 and appeared on 10 May 2012. They thereafter filed an application under Order IX Rule 13 CPC, along with an application under Section 5 of the Limitation Act, contending that they had not been duly served and had first learned of the ex parte decree on 13 July 2012.

The trial Court refused to condone the delay and dismissed the application, leading to the present miscellaneous appeal.

Whether the appellants established sufficient cause for their non-appearance so as to justify setting aside the ex parte judgment and decree under Order IX Rule 13 CPC.

Whether the delay in filing the application under Order IX Rule 13 CPC ought to be condoned under Section 5 of the Limitation Act.

Whether the trial Court committed an error in treating the notices as duly served and proceeding ex parte against the appellants.

The Court applied Order IX Rule 13 CPC, under which an ex parte decree may be set aside only if the defendant proves that summons were not duly served or that the defendant was prevented by sufficient cause from appearing when the suit was called for hearing.

It also applied Section 5 of the Limitation Act, requiring sufficient cause for condonation of delay.

Relying on Parimal v. Veena @ Bharti , (2011) 3 SCC 545, the Court held that “sufficient cause” requires an explanation demonstrating absence of negligence, lack of bona fides, or want of diligence; the expression must be assessed judicially in the circumstances of each case.

The Court also recognised that substantial justice should prevail over procedural technicalities, but only where the applicant establishes a bona fide and adequate explanation for non-appearance and delay.

The Court found that service had been duly effected: Nilesh received the registered notice, while the notices addressed to the other appellants were refused, and the relevant acknowledgments and returned envelopes were available on the record.

The trial Court was therefore justified in proceeding ex parte.

Further, although the appellants claimed to have learned of the decree upon receiving execution notice, they did not explain why they failed to file the Order IX Rule 13 application within the prescribed period after receiving that notice.

Their assertion that they had no knowledge of the suit was inconsistent with the service material on record.

The High Court also considered their conduct in withholding the balance sale consideration and subsequently selling the property for a substantially higher consideration, concluding that they had not approached the Court with a sufficient or equitable explanation.

Consequently, neither sufficient cause for non-appearance nor sufficient cause for condonation of delay was established.

The miscellaneous appeal was dismissed, the ex parte judgment and decree remained undisturbed, and no order as to costs was made.