The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
Order VI, rule 17 provides for amendment of pleadings. The basic object of the rule is that the Courts should try the merits of the cases that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other party.
In case of Van Vibhag Karamchari Griha Nirmana Sahakari Sanstha Maryadit v. R. Chandra, MANU/SC/0866/2010 : AIR 2011 SC 41 it was held that subsequent inclusion of plea of specific performance by way of amendment under Order 6, rule 17 after 11 years of filing of suit could not be allowed.
In South Konkan Distilleries v. Prabhakar Gajanan Naik, MANU/SC/8043/2008 : AIR 2009 SC 1177, it is held that the Court must be extremely liberal in granting the prayer for amendment of pleadings if the Court is of the view that such amendment is not allowed, a party, who has prayed for such as amendment shall suffer irreparable loss and injury. It is always open to the Court to allow an amendment if it is of the view that allowing of an amendment shall really subserve ultimate cause-of-justice and avoid further litigation.
In Rajesh Kumar Aggarwal v. K.K. Modi, MANU/SC/8043/2006 : AIR 2006 SC 1647: 2006 (3) ALD 61 (SC): 2006 (3) ALT 50 (SC): 2006 (2) AWC 1886 (SC): 2006 (3) JCR 58 (SC): JT 2006 (3) SC 607: (2006) 3 KLT 192 (SC): 2006 (4) Man LJ 719: (2006) 3 MLJ 70 (SC): 2006 (II) OLR (SC) 561: RLW 2006 (3) SC 1882: (2006) 3 SCALE 312: MANU/SC/8043/2006 : (2006) 4 SCC 385 it was observed that, this rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The provision enacts that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the part could not have raised the matter for which amendment is sought before the commencement of the trial.
The object of the rule is that courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
In a leading case of Cooper v. Smith, (1884) 29 Ch D 700, the object underlying amendment of pleadings has been laid down by Bowen, L.J. in the following words:
'It is well-established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.....I know of no kind of error or mistake which is fraudulent or intended to overreach, the court ought not to correct it if it can be done without injustice to the other party, courts don't exist for the sake of discipline but for the purpose of deciding matters in controversy and I don't regard such amendment as a matter of favour or grace.....it seems to me that as soon as it appeals that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it correct if it can be done without injustice as anything else in case is a matter of right."
In Puran Ram v. Bhaguram, MANU/SC/7233/2008 : AIR 2008 SC 1960, it is held that the prayer for amendment of the agreement to correct a part of the description of the suit property cannot involve either the question of limitation on the charge of nature of suit. The suit shall remain a suit for specific performance of the contract for sale and a separate independent suit is not needed to be filed when the proviso to section 26 of the Specific Relief Act, itself clearly permits either party to correct or rectify the description of the suit property not only in the plaint but also in the agreement itself.
In case of Kisandas v. Vithoba, ILR (1909) 33 Bom 644 the Court made the following observation on granting the amendments in pleadings:
"All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to another side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties."
The provisional rule 17 makes it clear that, it confers a very wide discretion on courts in the matter of amendment of pleadings. As a general rule, leave to amend will be granted so as to enable the real question in issue between the parties to be raised in pleadings. Where the amendment will occasion no injury to the opposite party and can be sufficiently compensated for by costs or other terms to be imposed by the order.
Therefore, for allowing an application under Order VI, rule 17, the Court has to see the two main points before it: (a) whether the amendment is necessary for the determination of real question in controversy; and (b) can the amendment be allowed without injustice to the other side.
Courts allow such amendment after applying its judicial mind over the facts and circumstances of the each case and after hearning the each party over the issue. So, the powers to allow amendment is wholly discretionary and confers wide powers to the Courts in administration of justice.
In Clarpede v. Commercial Union Association, (1882) 32 WR Eng 262 it was observed. "Even it has been held to the extent that it does not matter that the original omission arose from negligence or carelessness. However, negligence or carelessness may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to other side. There is no injustice if otherside is compensated for in terms of money."
In Ganesh Trading Co. v. Moji Ram, MANU/SC/0018/1978 : AIR 1978 SC 484: (1978) 2 SCC 91: (1978) 2 SCR 614: 1978 (10) UJ 162 (SC). The Supreme Court observed:
"Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give each side intimation of the case of the other so that it may be met to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation or particular must take."
Q.
In Ganga Bai v. Vijay Kumar, MANU/SC/0020/1974 : AIR 1974 SC 1126: (1974) 2 SCC 393: (1974) 3 SCR 882, the Supreme Court has rightly observed that:
"The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation, notwithstanding. But the exercise of such for reaching discretionary powers is governed by judicial considerations, and wides discretion, greater ought to be the care and circumspection on the part of the Court."
Generally, in following cases, leave to amend will be refused by the Court.
(i) Where amendment is not necessary for the purpose of determining the real question in controversy between the parties.
(ii) If it introduces a totally different, new and inconsistent case or changes the fundamental character of the suit or defence.
(iii) Where the effect of proposed amendment is to take away from the other side a legal right accrued in his favour.
In case of Charan Das v. Amir Chand, MANU/PR/0043/1920 : AIR 1921 PC 50, it was observed that:--
"That there was full power to make the amendment cannot be disputed, and though such a power as a rule, should not be exercised, where the effect is to take away from the defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the special circumstances of the case."
(iv) Where the application for amendment is not made in good faith.
Q.
Amendment application under Order VI, rule 17 is not governed by any law of limitation. Leave to amend may be granted before, or at, or after the trial, in first appeal, or in second appeal, or in revision, or in the Supreme Court or even in execution proceedings, provided the decree is legal, lawful and enforceable, and not otherwise.
But proviso to this provision as inserted in 2002, now restricts the power of the court and declares clearly that the Court should not allow such amendments after the commencement of the trial unless it comes to an conclusion that inspite of due diligence, the matter could not have been raised by the party before the commencement of the trial.
In Haridas Alidas v. Godrej Rustom, MANU/SC/0019/1981 : (1984) 1 SCC 668: AIR 1983 SC 319: 1982 (14) UJ 306 (SC), it was observed that: "It is well-settled that the Court should be extremely liberal in granting prayer of amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. It is also clear that a revisional court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstance."
So, an order granting or refusing amendment is not a "decree" nor an appealable order and as such no appeal lies against it. Such order, however, is a "case decided" and is only subject to the revisional jurisdiction of the concerned High Court.
In Billa's Private Ltd. v. W.B. Khadi and Village Industries Board, AIR 1997 Cal 333,
"That by the proposed amendment the defendant tries to make out a new claim and to set up a new case than what was made in the earlier written statement. Moreover, by this proposed amendment the defendant is attempting to negative the admission that they were the sole agents of the products of the plaintiff."
In Sheikh Mastan Sahib v. Balrammi Reddi, AIR 1953 Mad 952, it was held:
"Where by the proposed amendment the respondent sought to negate his own admission in the written statement it should not be allowed".
The case of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, MANU/SC/0016/1969 : AIR 1969 SC 1267: (1969) 1 SCC 869: (1970) 1 SCR 22, is well illustrative of the scope of power to grant the amendment of pleadings under Order VI, rule 17 of the Civil Procedure Code, 1908.
In this case the action was instituted in the name of "Jai Jai Ram Manohar Lal" which was the name in which the business was carried on. The plaintiff Manohar Lal subscribed his signature at the foot of the plaint as "Jai Jai Ram Manohar Lal". However, the same firm was an unregistered one and therefore technically same could not file a suit in its name. The defendant by its written statement contended that the plaintiff was an unregistered firm and on that account incompetent to sue. The petitioner sought for an amendment of the plaint only to the extent that the name of the plaintiff was to be from the business name, i.e., Jai Jai Ram Manohar Lal to the personal name of the Karta of the Hindu Undivided Family (HUF), i.e., Manohar Lal.
The main issue involved in the question was whether in view of the facts and circumstances of the case the amendment sought by the petitioner, i.e., name of the plaintiff was to be from the business name to the personal name of the Karta of HUF be allowed. The subordinate judge allowed to amend the plaint on the ground that the real plaintiff was Manohar Lal himself, that it was Manohar Lal who intended to file and did in fact file the action and the amendment was intended to bring what in effect had been done in conformity with what in fact should have been done.
Against that decree an appeal was preferred to High Court being of the view that the action was instituted in the name of 'non-existing person' and Manohar Lal having failed to aver in the application for amendment that the action was instituted on account of some bona fide mistake or omission. The subordinate judge was not competent to grant leave to amend the petition.
The Supreme Court in appeal reversed the order and the reasoning of the High Court. The court referred to the decision in Amulakchand Mewaram v. Babulal Kanalal, (1933) 35 Bom LR 569. The question whether there should be an amendment or not really turns upon whether the name in which suit is brought is the name of non-existent person or whether it is merely a misdescription of existing persons if the former is the case, the suit is nullity and no amendment can cure it. If the latter is the case prima facie there ought to be an amendment because the general rule, subject no doubt to certain exceptions, is that the court should always allow an amendment where any loss to the opposite party can be compensated for by costs.
The Court also considered a somewhat similar case in Purushottam Umedbhai & Co. v. Manilal Sons, MANU/SC/0004/1960 : AIR 1961 SC 325: (1961) 1 SCR 982, wherein a firm carrying on business outside India filed a suit in the firm name in the High Court of Calcutta for a decree for compensation for breach of contract. The plaintiff then applied for amendment of the plaint by describing the name of all the partners and striking out the name of the firm as mere misdescription. The Court allowed the amendment to enable a proper description of the plaintiffs to appear in it in order to assist the court in determining the real question in issue between the parties. The Court observed that if, however, under some misapprehension, persons doing business as partners outside India do file a plaint in the name of their firm they are misdescribing themselves as the suit instituted is by them being known collectively as firm it seems, therefore, that a plaint filed in a court in India in the name of a firm doing business outside India not be itself a nullity. It is plaint by all the partners of the firm with a defective description of themselves for the purpose of the Code of Civil Procedure, 1908.
In the present case, the plaintiff was carrying on business as commission agent in the name of "Jai Jai Ram Manohar Lai". The plaintiff was competent to sue in his own name as manager of Hindu Undivided Family. The observations made by the High Court that the application for amendment of the plaint could not be granted because there was no averment therein that the misdescription was on account of bona fide mistake and on that account the suit must fail cannot be accepted. In our view, there is no rule that unless in an application for amendment of the plaint it is expressly averted that error, omission or misdescription is due to bona fide mistake the Court has no power to grant to leave to amend that plaint. The power to grant amendment of the pleading is intended to serve the end of justice and is not governed by any such narrow or technical limitations.
In Pirgonda Hongonda v. Kalgonda Shidgonda, MANU/SC/0002/1957 : AIR 1957 SC 363: (1957) 59 Bom LR 401 the Supreme Court discussed the law relating to amendment.
In the given case the original plaintiff, Shidgonda filed a suit against Pirgonda Respondent No. 3 for possession of the suit properties and obtained a decree which was confirmed by the Supreme Court of Kolhapur. But the execution of the decree was obstructed by the present appellant Shidgonda, man made an application under rule 97 of Order XXI complaining of such obstruction. This application was dismissed as it disclosed no cause-of-action against the appellant who was not a party of the suit. The original plaintiff then filed a regular suit under rule 103 of Order XXI for a declaration that he was entitled to possess the suit properties, and he joined the present appellant as the first defendant. The suit was resisted on the ground that it did not disclose how the plaintiff was the owner of the suit properties. The plaintiff then filed an application for amendment of the plaint by adding a paragraph and he inserted the whole history briefly as to how he derived title to the suit properties. The amendment was resisted on the ground that the period of limitation on the date of proposed amendment had expired, and as such the amendment should not be allowed.
The Trial Court dismissed the application and in appeal High Court allowed the amendment on the ground that the amendment did not introduce any new case, that the plaintiff had obtained his earlier decree on the strength of his title to the suit properties. The learned judges of the High Court also thought proper that the present appellant could be compensated by drastic order of costs in his favour.
The Supreme Court taking note of many cases i.e., L.J. Leach & Co. v. Jardine Skinner & Co., MANU/SC/0009/1957 : AIR 1957 SC 357; Charan Das v. Amir Chand, MANU/PR/0043/1920 : AIR 1921 PC 50 and Kisandas Rupchand v. Rachappa Vitobha, 33 Bom 644 (655) held that the amendment didn't really introduce a new case and the application filed by the appellant himself showed that it was not taken by surprise, nor did he change to meet a new claim set up for the first time after the expiry of period of limitation.
In Heeralal v. Kalyan Mal, MANU/SC/0829/1998 : AIR 1998 SC 618: 1998 (46) BLJR 444: (1998) 1 Cal LT 45 (SC): JT 1997 (9) SC 267: (1998) 1 MLJ 101 (SC): RLW 1998 (1) SC 70: (1997) 7 SCALE 196: MANU/SC/0829/1998 : (1998) 1 SCC 278: (1997) Supp 5 SCR 277: 1998 (1) UJ 155 (SC) Hon'ble Supreme Court observed that once the written statement contains an admission in favour of the plaintiff by amendment, such admission of the defendants cannot be allowed to be withdrawn if such withdraw would amount to totally displacing the case of plaintiff and which would cause him irretrievable prejudice.
In Narinder Singh v. Jagmohan Singh, 80 (1999) DLT 107 the plaintiff suit filed for specific performance of agreement. To save suit from being dismissed as infructuous plaintiff wants to amend plaint by adding new relief for settlement of terms and conditions for extension of lease under garb of amendment application plaintiff want to take away right accrued to defendant on termination of tenancy.
Dalip Kaur v. Major Singh, AIR 1996 P&H 108. The facts of case relate to a suit for possession of land filed to restrain the defendant from alienating land by way of sale, exchange, gift, etc., while the suit was in progress the plaintiff filed an application under Order VI, rule 17 seeking amendment of the plaint by making a prayer for declaring the judgment and decree passed in another suit Major Singh v. Balbir Kaur as null and void and ineffective against the rights of the plaintiff.
The application for amendment was dismissed mainly on the ground that same was filed without explaining the alleged inordinate delay. And further it was held that proposed amendment changed the foundation of the suit by introducing a distinct cause-of-action.
The matter came before Punjab High Court which observed:
The purpose of Order VI, rule 17 of the Code of Civil Procedure, 1908, is to allow either party to amend his pleadings in such manner as may be just. The power to allow amendment is wide and can be exercised at any stage of proceedings in the interest of justice on the basis of guidelines laid down by Supreme Court. On the basis of different judgments following principles should be kept in mind while dealing with application for amendment of pleading:
(i) all amendments should be allowed which are necessary for determination of the real controversy in the suit;
(ii) the proposed amendment should not alter and be a substitute of cause-of-action on the basis of which original lis was raised;
(iii) inconsistent and contradictory allegations in negation to admitted position of facts or mutually destructive allegations of facts would not he incorporated by means of amendment;
(iv) proposed amendment should not cause prejudice to other side zvhich cannot be compensated by means of costs;
(v) amendment of claim or relief barred by time should not be allowed;
(vi) no amendment should be allowed which amounts to or results to defeating a legal right to the opposite party on account of lapse of time;
(vii) no party should suffer on account of technicalities of law and the amendment should be allowed to minimize the litigation between the parties;
(viii) the delay in finding the petition for amendment of the pleadings should be properly compensated by costs;
(ix) error or mistake which if not fraudulent should not be made ground for rejecting the application for amendment of pleading.
Amendment cannot be claimed as a mailer of right and under all circumstances. The circumstances may differ from case to case and it would depend upon the facts of each individual case keeping in view the object that the courts are to do substantial justice and not to punish a party on technical grounds.
Keeping in view the principles discussed above the application for amendment filed by plaintiff was wrongfully rejected. The order impugned in the revision petition is set aside.
Order XXXIII provides for (Special suits) filing of suits by indigent persons. It enables the persons who are too poor to pay court-fee and allows them to institute suits without payment of requisite court-fee.
The basic object of Order XXXIII was widely discussed by Kerala High Court in Sumathy Kutty v. Narayani, MANU/KE/0007/1973 : AIR 1973 Ker 19, whereas it was observed that:--
"The provision of Order XXXIII are intended, to enable indigent persons to institute and prosecute suits without the payment of any court-fee. Generally, a plaintiff suing in a court of law is bound to pay court-fees prescribed under the Court-fees Act, at the time of presentation of plaint. But a person may be too poor to pay the requisite court-fee. This order exempts such persons from paying the court-fee at the first instance and allows him to prosecute his suit in forma pauperis provided he satisfies certain conditions of this order."
Order XXXIII, rule 1 provides for meaning of an indigent person for application of force behind Order XXXIII. That a person is an "indigent person" if,
(1) He is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or
(2) where no such fee is prescribed, when he is not entitled to property worth Rs. 1000.
In both the cases, property exempt from attachment in execution of a decree and the subject-matter of the suit be excluded.
According to rule 2 - every application for permission to sue as an indigent person shall contain the following particulars:
(1) The particulars required in regard to plaints in suits;
(2) A schedule of any movable or immovable property belonging to the applicant with the estimated value thereof; and
(3) Signature and verification as provided in Order VI, rules 14 and 15.
Rule 5 provides that the Court may reject an application for permission to sue as an indigent person on the following grounds:--
(i) where it is not framed and presented in the manner prescribed above;
(ii) where the applicant is not an indigent person;
(iii) where before two months of the presentation of such applications, has knowingly disposed of any property fraudulently or in order to be able for permission to sue as an indigent person: Provided that no such application shall be rejected if even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person, or
(iv) where his allegations do not reveal a cause-of-action; or
(v) where he has entered into an agreement with respect to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter; or
(vi) where the allegations made by the applicant in the application show that suit would be barred by any law for the time being in force; or
(vii) when any other person her entered into an agreement with him to finance the litigation.
Rules 8 to 9A provides for the provisions where a permission is granted by the court. The court may assign a pleader to an indigent person if he is not represent by a pleader. A defendant can also plead set-off or counterclaim as an indigent person.
While rules 15 to 15A are regarding the rejection of permission. Where the court rejects an application to sue as an indigent person, it will grant time to the applicant to pay court-fee. An order refusing to allow an application to sue an indigent person shall be a bar to a subsequent similar application. However, this does not debar him from suing in an ordinary manner.
Order XLIV provides for appeals by the indigent persons. It provides that a person unable to pay court-fee on memorandum of appeal may apply to allow him to appeal as an indigent person. The necessary inquiry as prescribed in Order XXXIII will be made before granting or refusing the prayer.
In R.V. Dev v. Chief Secretary, Government of Kerala, MANU/SC/7704/2007 : AIR 2007 SC 2698, the court held that when an application is filed by a person said to be indigent, certain factors for considering as to whether he is so within the meaning of the said provision is required to be taken into consideration therefor. A person who is permitted to sue as an indigent person is liable to pay the court-fee which would have been paid by him if he was not permitted to sue in that capacity, if he fails in the suit of the trial or even without trial. Payment of court-fee as the scheme suggests is merely deferred. It is not altogether wiped off.
In M.L. Sethi v. R.P. Kapur, MANU/SC/0245/1972 : AIR 1972 SC 2379: (1972) 2 SCC 427: (1973) 1 SCR 697.
Facts of the case: Shri R.P. Kapur filed a suit in forma pauperis against the appellant and his wife for recovery of damages to the tune of Rs. 74,800--for malicious prosecution. Notice of the petition was given to the State Government and the appellant. The appellant thereafter, filed an application in the court for direction to the respondent to discover on affidavit, all documents, bank accounts, with pass books and counter foils and all other documents relating to property. This application was filed under the provisions of Order XI. The Trial Court fixed a date for filing the said affidavit by which date the respondent failed to file the affidavit. Thereafter the respondent filed an application for an extension of time on the ground that he wanted to file a revisional appeal to the High Court against the order of the court directing discovery. The court rejected this application and thereafter dismissed the respondents application to sue in forma pauperis. Against these two orders, the respondent went in for the revision to the High Court.
Among other orders (which we shall take up in other relevant chapters), the learned Judges of High Court held: that the proceedings under rules 6 and 7 of Order XXXIII are summary in character; and that the sophisticated procedures for discovery should not have been resorted to by the appellant, that the documents of which discovery was sought were not specified in the application of the appellant and, therefore, the application for discovery was bad; that the enquiry under rules 6 and 7 of Order XXXIII was primarily a matter between the respondent and the State Government and that the Trial Court should not have adopted the procedure for discovery and inspection at the instance of a private party like the appellant.
We venture to think that the High Court was labouring under a mistake when it said that the enquiry into the question whether the respondent was a pauper was exclusively a matter between him and the State Government and that the appellant was not interested in establishing that the respondent was not a pauper. Order XXXIII, rule 5 provides that if the Court does not reject the application under rule 9, the Court shall fix a day for receiving such evidence as the applicant may adduce in proof of his pauperism. Notice shall given to the State Government and the opposite party for hearing any evidence which may be adduced in disproof of pauperism. Under rule 9, it is open to the Court on the application of the defendant to dispauper the plaintiff on the grounds specified therein, one of them being that his means are such that he ought not to continue to sue as a pauper. Their Lordships further held:
An immunity from litigation unless the requisite court-fee is paid by the plaintiff is a valuable right for the defendant. And does it not follow as a corollary that the proceeding to establish that the applicant-plaintiff is a pauper, which will take away that immunity, is a proceeding in which the defendant is vitally interested.
To what purpose does Order XXXIII, rule 6 confer the right on the opposite party to participate in the enquiry into the pauperism and adduce evidence to establish that the applicant is not a pauper unless the opposite party is interested in the question and entitled to avail himself of all the normal procedure or establish it? We think of no reason why if the procedure for discovery is applicable to proceeding under Order XXXIII, the appellant should not entitled to avail himself of it.
In the end their Lordships held that the trial court was right in directing discovery of documents, because it was the valuable right of the appellant to ask for discovery, as he was not a private party but a defendant is much interested in the question of the pauperism of the respondent.
The important point to remember is that the provisions of Order shall also apply to pauper appeals under Order XLIV where, once again, the procedure prescribed for suits in forma pauperis has to be followed.
Q.
Appearance and non-appearance of the parties before the competent court, after filing of the suit goes to the root of the matter. Order IX of the Code of Civil Procedure, 1908 enacts the law with regard to appearance of the parties to the suit and consequences of their non-appearance. It also provides for remedies for setting aside an order of dismissal of the suit as also the setting aside of an ex parte decree passed against the defendant.
Order IX, rule 1 requires the parties to the suit to attend the Court in person on by their pleaded on the day fixed in the summons for the defendant to appear for hearing. Where neither the plaintiff nor the defendant appears, the Court may dismiss the suit (rule 3). However, there is no bar to a fresh suit in respect of the cause-of-action (rule 4).
(i) Rules 6 to 10, where only plaintiff appear.-- Where only plaintiff appears and defendant fails to appear before the Court, to get benefit from his claim, the plaintiff used to show that summons were duly served upon the plaintiff. If the service of summons is proved, the Court may proceed ex-parte against the defendant and may pass a decree in favour of the plaintiff.
(ii) Rules 7 to 11 - where only defendant appears.-- Where after filing the suit only defendant appears and plaintiff does not follow the proceedings, the court shall pass an order dismissing the suit. But if the defendant admits plaintiff's claim as a whole or as a part thereof, one court will pass a decree against the defendant upon admission and dismiss the said for rest of the claim.
Q.
(iii) Ex parte decree: meaning.-- An ex parte decree is a decree passed in the absence of the defendant (in absentia), where the plaintiff appears and defendant does not appear even after the due services of the summons, the Court proceeds to pass an ex parte decree against the defendant. Such a decree is neither null nor inoperative but is merely voidable and unless and until it is annulled on legal and valid grounds, it is legal, valid and operative and enforceable like a bi-parte decree and it has all the force of a valid decree.
(iv) Remedies Order IX, rule 13.
Order IX, rule 13 provides for remedy for the defendant for setting aside of ex-parte decree, if he succeeds in satisfying the Court that there was cogent reason for non-appearing in the court on the day fixed for hearing.
Apart from rule 13, the defendant has remedies also, like:--
(i) To prefer an appeal against such decree: section 96(2), or
(ii) To apply for review: Order XLVII, rule 1, or
(iii) To file a suit on the ground of fraud.
Order IX, rule 13 is first preferable remedy (generally choosen) for the defendant, where he is to prove that (1) the summons were not duly served; or (2) he was prevented by any sufficient cause from appearing when the suit was called out for hearing on either of the two grounds being proved beyond doubt, the Court will set aside the decree passed against him and shall appoint day a for proceeding with the suit.
But such power to set aside the decree (ex parte) is not so inherent and the trying court is expected to apply its mind over the application so made and also to look into the facts and circumstances of the case.
(v) Effect of setting aside ex parte decree.-- The effect of setting aside ex parte decree is that the suit is restored, and the Court should proceed to decide the suit as it stood before the decree. The trial should commence de novo and the evidence that had been recorded in the ex parte proceedings should not be taken into account,
In Mahesh Yadav v. Rajeshwar Singh, AIR 2009 SC 1067, plaintiff filed a suit for declaration of title and possession where six defendants were impleaded as parties. The defendants filed a joint written statement. Ex parte decree was passed on the basis of compromise decree entered into between two of six defendants and plaintiff. The Court held that it may not be correct that only because a joint written statement was filed, an application for ex parte decree was not maintainable. When an ex parte decree is passed, the defendant may have more than one remedies. He may file an application under Order IX, rule 13 of the CPC or setting aside the ex parte decree. He may file a suit contending that the decree ways obtained fraudulently. He may prefer an appeal from the ex parte judgment and decree. In the given case, he may also file review application. Therefore, eventhough a joint written statement was filed by all the defendants, application for setting aside decree at the instance of other defendants was maintainable.
In Mahabir Singh v. Subhash, MANU/SC/8048/2007 : AIR 2008 SC 276, an ex parte decree was passed. Defendant for getting it set aside was required to establish that either no summons was served on him or he had sufficient cause for remaining absent on the date fixed for hearing the suit ex parte. The Limitation Act, provides for 30 days time for filing such an application. The Court held that even assuming for the sake of argument that no proper step was taken by the appellant for service of summons upon the respondent and/or the service of summons was irregular, it was for the respondent defendant to establish as to when he came to know about the passing of the ex parte decree. He had approached the appellant for not giving effect thereto one and half year prior to filing of the application, and, thus, he must be deemed to have knowledge about passing of the said ex parte decree. The period of limitation would be reckoned from that day. Thus, as the application for setting aside the ex parte decree was filed one and a half year after the respondent came to know about passing of the ex parte decree in the suit, the said application was barred by limitation.
B. Jankiramiliah Chetty v. A.K. Parthasarthi, (2003) 3 SCALE 660: MANU/SC/0281/2003 : AIR 2003 SC 3527: 2003 (3) ALD 79 (SC): 2003 (5) ALT 14 (SC): 2003 (4) AWC 3296 (SC): JT 2003 (3) SC 580: 2003 (2) KLT 384 (SC): (2003) 2 MLJ 186 (SC): (2003) 134 PLR 331: MANU/SC/0281/2003 : (2003) 5 SCC 641: (2003) 3 SCR 369, the Explanation permits the Court in its discretion to proceed with a case where substantial portion of evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned. As the provision itself shows, discretionary power given to the court to be exercised in a given circumstances. For application of the provision, the court has to satisfy itself that (i) substantial portion of the evidence of any party has been already recorded; (ii) such party has failed to appear on any day, and (iii) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the court to adopt any of the modes provided in Order IX or to adopt any of the modes provided in Order IX or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fails to appear. The Explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the Court to act under the specified circumstance, i.e., where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the Court may make an order directing that the suit be dismissed when neither party appears when the suit is called on for hearing. There are other provisions for dismissal of the suit contained in rules 2, 6 and 8.
Rules 2 and 3 operate indifferent and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, rule 3, operates where the adjournment has been given for one of the purposes mentioned in the rule. While rule 2 speaks of disposal of the suit in one of the specified modes. Rule 3 empowers the Court to decide the suit forthwith. The basic distinction between the two
rules, however is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to rules 2 and 3 is that a discretion has been conferred on the Court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present.
The crucial expression in the Explanation is "where the evidence or a substantial portion on the evidence of a party". There is a positive purpose in this legislative expression it obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The Court while acting under the Explanation may proceed with the case if that prima fade is the position. The Court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the Court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of suit or deferring the decision.
Sangram Singh v. Election Tribunal, Kotah, MANU/SC/0044/1955 : AIR 1955 SC 425: (1955) 2 SCR 1, in this case, the defendant and his counsel both fail to appear before the Election Tribunal, as a consequence of which the Judge permits ex parte proceedings. On subsequent three hearings several witnesses of the plaintiff were examined in the absence of the defendant and counsel. The defendant and his counsel put an appearance on the fourth hearing and insist that not only the order to proceed ex parte be reversed but the defendant should also be permitted to cross-examine witnesses of the plaintiff who were examined in his absence.
The question, thus, was, whether ex parte proceedings means total debarring of the defendant to appear before the Court on any subsequent date or it merely means that the defendant may appear on a future date, however, without any right to undo what prejudice has been caused to his interest in the ex parte proceedings?
The Supreme Court observed as follows:
(i) Ex parte proceedings does not mean that the defendant cannot be allowed to appear at all in the subsequent proceedings of the suit. It only relates to the particular day of hearing on which the defendant remains absent. The rule merely authorises the court to proceed ex parte on the day when the defendant does not appear.
(ii) The right to proceed ex parte is a right which accrues from day-today because at each adjourned hearing the court is thrown back to Order IX, rule 6. It is not a mortgaging of the future, but only applies to the particular hearing at which a party was afforded the chance to appear and did not avail himself of it. Therefore, if a party does appear on "the day to which the hearing of the suit is adjourned", he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing.
(iii) The Code of Civil Procedure, 1908 prescribes a procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties, not a thing designed to trip people up. An omission to appear in response to a summons carries no penalty in the strict sense.
(iv) Our procedures are grounded on a principle of natural justice which requires that men should not be condemned unheard; that decision should not be reached behind their backs, that the proceedings that affect their lives and property should not continue in their absence and they should not be precluded from participating in them.
(v) No form or procedure should ever be permitted to exclude the presentation of litigant's defence the Supreme Court followed the view propounded by Wallace, J. in Venkata Subbiah v. Lakshmi Narasimbam, (1925) AM 1274, that "ex parte' merely means in the absence of the other party and therefore whenever the other party is present it should be allowed to present its case. Thus a party has right to appear and plead his cause on all occasions when the cause comes on for hearing and the party should not be deprived of that right, unless the code deprives him of it.
The Supreme Court in the present case held that the appellant cannot be relegated to the same position as he has failed to show good cause, he cannot be denied his right to contest and be present on subsequent dates.
Vijay Kumar Madan v. R.N. Gupta Technical Education Society, MANU/SC/0377/2002 : AIR 2002 SC 2082: 2002 (4) ALT 59 (SC): 2002 (2) AWC 1593 (SC): JT 2002 (4) SC 443: (2003) 1 MLJ 58 (SC): (2002) 4 SCALE 191: MANU/SC/0377/2002 : (2002) 5 SCC 30: (2002) 3 SCR 217: 2002 (2) UJ 882 (SC). In this case Respondent (R.N. Tech. Educ. Society) held the tenancy of premises under lease deed at 1st April, 1996 from the appellants. The rent payable was Rs. 63,087 per month plus Rs. 4000 per month of maintenance charges.
On 27th March, 1998 Vijay Kumar Madan filed suit for recovery of rent and ejectment, alleging the respondents were in arrears of rents from 1st May, 1996 to 2nd May, 1998 the respondent/defendant and their counsel failed to appear in the Trial Court, and therefore Trial Court directed the suit to proceed ex parte against the defendant.
On 29th May, 1998 the respondent/defendant moved an application under Order IX, rule 7 praying for setting aside of the ex parte order on the ground that their counsel was prevented from appearing in the court on account of having met 'an accident on 9th September, 1999 the Trial Court allowed the application recording that defendant had good sufficient cause for previous non-appearance of defendant and their counsel on 2nd May, 1998. However, Trial Court directed the defendant to deposit the arrear monthly lease rent in the court at the time of filing written statement.
The defendant aggrieved by the Trial Court order of depositing rent preferred appeal to the High Court. The High Court's order dated 14th October, 1999 found Trial Court's direction too onerous, the condition imposed by Trial Court was set aside and the Trial Court was directed to dispose of the suit latest by 31st March, 2000. The plaintiff appellant filed the petition seeking special leave to appeal. On 28th February, 2000 while allowing the leave, it was directed that impugned order of High Court dated 14th October, 1999 should remain stayed. The result was that order of Trial Court dated 9th January, 1999 came into operation as defendant failed to comply with condition of depositing rent, the Trial Court passed a decree for recovery of rent in arrears and recovery of possession. However, prior to 28th February, 2000, the date of passing of interim order by the court, and armed with the order of the High Court, the defendant-respondent had filed their written statement.
In the meantime an another important event took place during the pendency of appeal. Subsequent to the passing of the decree by the Trial Court the same was put to execution. On 1st November, 2000, the plaintiff-appellant have taken possession over the property with police aid.
The Apex Court hearing the learned counsel for the parties opined that the impugned order of High Court deserves to be maintained but subject to certain modifications. Under Order IX, rule 7 of the Code of Civil Procedure, 1908 the court does have jurisdiction, while setting aside the ex parte order impose costs and also to put defendant applicant on terms. It has been settled in earlier decision of Apex Court, that on an adjourned hearing, in spite the Court having proceeded, ex parte earlier the defendant is entitled to appear and participate in the subsequent proceedings as of right.
An application under rule 7 is required to be made only if the defendant wishes the proceedings to be relegated back and reopen the proceedings from the date wherefrom they became ex parte so as to convert the ex parte hearing into bi-parte.
While exercising power under rule 7 the court cannot pass an order which would place defendant in a situation more worse off than what he would have been if he had not applied under rule 7. Rule 7 in its essence is to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong litigation.
Costs should be assessed as would reasonably compensate the plaintiff for the loss of time and inconvenience caused by relegating back the proceedings to an earlier state.
The Supreme Court held:
"The order of High Court to the extent of setting aside the ex parte proceeding and expeditious trial of suit has to be sustained as it serves the ends of justice."
In case of Gayathri Women's Welfare Association v. Gowrama, MANU/SC/0055/2011 : AIR 2011 SC 785 generally the counter-claim not contained in original written statement might be refused to be taken on record, especially if issues had already been framed.
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