Prompt recall of an ex parte order warrants an effective opportunity to contest the case on merits.

The respondent/plaintiff instituted Civil Suit No. 08-A/2003 seeking specific performance of an agreement dated 08.10.1998.

The suit was listed on 23.06.2003 for compromise and recording of the plaintiff’s evidence. As the appellants’ counsel was absent, the Trial Court proceeded ex parte against them, closed the plaintiff’s evidence on the same day, and fixed the matter for final hearing.

On 25.06.2003, within two days, the appellants applied under Order IX Rule 7 of the Code of Civil Procedure, 1908 (“CPC”) for recall of the ex parte order.

The application was rejected on 09.07.2003, with liberty to the appellants to seek relief under Order IX Rule 13 CPC.

The appellants thereafter filed an application under Order IX Rule 13 CPC, which was dismissed by the Trial Court on 12.09.2005 in M.J.C. No. 17/2005. The present appeal was filed under Order XLIII Rule 1(d) CPC against that dismissal.

Whether the Trial Court was justified in proceeding ex parte against the appellants and denying them an opportunity to participate in the suit when they sought recall of the order within two days?

Whether the orders dated 09.07.2003 rejecting the application under Order IX Rule 7 CPC and 12.09.2005 rejecting the application under Order IX Rule 13 CPC were legally sustainable?

The Court applied Order IX Rule 7 CPC, which enables a defendant proceeded against ex parte to seek permission to participate in the proceedings upon showing sufficient cause for the earlier non-appearance; Order IX Rule 13 CPC, which provides a remedy for setting aside an ex parte decree; and Order XLIII Rule 1(d) CPC, which permits an appeal against an order rejecting an application under Order IX Rule 13 CPC.

The Court further applied the procedural principle that rules of procedure are intended to advance the cause of justice and that a party should ordinarily not be deprived of an opportunity to contest a matter on merits for a procedural default, particularly where the party approaches the Court without undue delay.

The order-sheets demonstrated that the appellants were proceeded ex parte, and the plaintiff’s evidence was closed, on the very day the appellants’ counsel was absent.

The appellants approached the Trial Court within two days by filing an application seeking recall of the ex parte order, showing that they had acted promptly and without undue delay.

Considering that the suit had not reached final adjudication and that the appellants sought an opportunity to place their defence and evidence on record at an early stage, the High Court held that an effective and reasonable opportunity ought to have been granted.

The Trial Court’s refusal to permit participation, followed by rejection of the applications under Orders IX Rules 7 and 13 CPC, was therefore inconsistent with the objective of deciding disputes on merits rather than on a procedural default.

It set aside the order dated 12.09.2005 rejecting the appellants’ application under Order IX Rule 13 CPC and the order dated 09.07.2003 rejecting their application under Order IX Rule 7 CPC.

Civil Suit No. 08-A/2003 was restored to the stage preceding the appellants’ being proceeded ex parte, with directions to the parties to appear before the Trial Court on 23.10.2026 and for the Trial Court to afford both sides due opportunity to contest the suit on merits.

The High Court clarified that it had expressed no opinion on the merits of the suit and that the Trial Court must decide it independently.