Legal Blog: "Sufficient Cause" for Setting Aside Ex-Parte Decree : The Law

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Saturday, February 12, 2011

"Sufficient Cause" for Setting Aside Ex-Parte Decree : The Law

P. Sathasivam
The Supreme Court in its Judgment Parimal v. Veena @ Bharti has examined the provisions of Order IX Rule 13 of the Code of Civil Procedure, 1908. Order IX Rule 13 of the CPC speaks of conditions under which an Ex-Parte Decree can be set aside. While examining the various judicial precedents on the provision, the Court held as under;

7. Order IX, R.13 CPC:

The aforesaid provisions read as under:

"Setting aside decree ex-parte against defendant In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the de- cree was passed for an order to set it aside; and if he sat- isfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; xx xx xx Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.

xx xx xx" (Emphasis added)

8. It is evident from the above that an ex-parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court.

The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.

9. "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide: Ramlal & Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi & Anr., AIR 1968 SC 222; Surinder Singh Sibia v. Vijay Kumar Sood, AIR 1992 SC 1540; and Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation & Another, (2010) 5 SCC 459)

10. In Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause". (See also: Brij Indar Singh v. Lala Kanshi Ram & Ors., AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors., AIR 1964 SC 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953).

11. While deciding whether there is a sufficient case or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306; Madanlal v. Shyamlal, AIR 2002 SC 100; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. & Ors., AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand & Anr. (2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth Financial Services Ltd. & Anr., (2005) 13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054).

12. In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application. 

The Judgment further goes on to examine the Presumption of Service by Registered Post, and observes as under;


13. This Court after considering large number of its earlier judgments in Greater Mohali Area Development Authority & Ors. v. Manju Jain & Ors., AIR 2010 SC 3817, held that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by this Court in Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287.

14. In Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani, AIR 1989 SC 1433, this Court held as under: "There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service."

(Emphasis added)

15. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.


  1. Sir
    In a suit for declaration of right tittle and interest,the defendant appeared and filed petition seeking adjournment to file W.S. through his advocate for 2 times.
    Thereafter the defendant did not file the WS and failed to appear hence the suit is decreed exparte in favour of plaintiff.
    Now after delay of 197 days the defendant have file a petition under order9rule 13 of cpc
    Showing illness.
    Sir what will be the legal position of the court?

    1. If there is a bonafide and sufficient cause of reason present in the affidavit ,the court will consider the petition and it may be allowed with cost

  2. The Judgment by Justice Chauhan is comprehensive

  3. Myself applied for Restitution of conjugal rights.Summons were not received by respondent due to mistake in area in HPHB Hyderabad I.e.Bhagyanagar colony was mistakenly quoted as Pragathinagar and remaining address o.k. The court ordered for summons through paper publication. When this matter was brought to my relative, he corrected me and paper publication was given with correct address and brought the to the notice of court on 28 10 2011 and exparte decree was given on 18 11 2011. No appeal was made against the decree and decree was in force.After completion one yearfrom the date of decree filed divorce petition.Respondent received summons in Sept 2014 and attended concillaation with Judge on 14 03 2015 and directed respondent to file counter. As she failed to file counter on the third occasion also court declared exparte on.
    . On subsequent hearing date she filed setasise petition and continued the case.On the subsequent three occasiona myself failed to attend court resulting dismissal of case.Myself applied for restoration and posted to 23 12 2015 for hearing.Adjourned to 19 012016,25 02 2016,23 032016 and 02 06 16 for notice. To my surprise the handed over the petition for setingaside. exparte decree for Restitution of conjugal Rights and condone of delay petition for 1391 days that means that the petition might have submitted on 10th Sept 2015 and the was received by me after a period of more than 8 months or shown lesser number of days. Though respondent had the knowledge of exparte decree in sept 2014 she is stated to have filed setasde petition after divorce petition is dismissed for my absence 10th Sept. I.e after one year. It is therefore need to dismiss setaside and condonation of delay to consume time and hinder divorce petition process

  4. Sir I got stay in case from higher court and due to this I did not appear in court that I hv stay on it. But lower court declare me ex parte and passe decree
    I told sufficient cause but the court want specific judgment on the issue

  5. Sir, In original suit the defendant filed vakalath and engaged his council but not filed written statement and he not appeared this Honb'le court. Hence The Honb'le court passed exparty decree against the defendant. Now i filed miss suit for set aside the orders and give me the opportunity to proceed the original suit. Please give me any citations regarding set aside the orders. Yours faithfully....

  6. Non filing of written statement is also considered as exparty decree and no needed to give citations etc ....only you have to convince the court with sufficient cause.

  7. Sir decree has been passed in ex party with out putting the other side to notice and application under O9 R13 cpc hasbeen preferred but instead of writing that summons have not been served reasonable opportunity of being heard has not been given has been mentioned.what is the effect

  8. Sir defendant filed written statement in suit and he non appear in court then judgement and decree passed by discussing issues whether he has right to file application u O9r13 of c. P. C.

  9. Sir in a suit I am defendant, court has given decree in favour of plaintiff.during trial in this case , the case was transferred to other court by the mistake of original court. And I went to transferred court to attend the case on the date but the court has not called me and I went to the pending section they refused to give information and my 1st advocate too.and I didn't receive any notice from
    1st and 2nd court. And after 1 month I went to 1st court and I shocked to hear the judgement in favour of plaintiff. Now I put the mis case order 9 rule 13 petition against plaintiff to set a side decree. Can I won these case? Pls help there any citation? Pls send me.Mohan kumar s


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