Annexure-V- Cover Page for Academic Tasks

Course Code: LAW 322 Course Title: Civil Procedure Code

Course Instructor: Bhavyya Sharma Section – L1902

Academic Task No.- 2 Academic Task Title: Assignment

Date of Allotment: 6th October, 2021 Date of submission: 30th October, 2021

Student’s Name: Aman Kathuria Student’s Reg. no: 11915048

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specified at the time of assigning the task by the instructor)

Learning Outcomes: (Student to write briefly about learnings obtained from the academic tasks)

Evaluator’s comments (For Instructor’s use only)

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Declaration:
I declare that this Assignment is my individual work. I have not copied it from any
other student’s work or from any other source except where due acknowledgement is made
explicitly in the text, nor has any part been written for me by any other person.

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Marks Obtained: Maximum Marks: 30

In an eviction proceeding, 27-5-1989 was fixed for the evidence of the landlord and
2.6.1989 for the evidence of the tenant. On 27.5.1989 neither the tenant nor his counsel
appeared at hearing. The Court recorded evidence of landlord and passed ex-parte
eviction order. Same day tenant applied for setting aside the ex-parte order alleging
that he was ill and his counsel had forgotten mentioning the case in his diary. He filed
his own affidavit but did not file medical certificate and diary and affidavit of counsel.
The landlord rebutted his allegation on affidavit. Decide the application.

Provision related to this case:

Section 39 of The Delhi rent Act, 1995-

Fixing of fair rate.

(1) Where the Rent Authority, on a written or otherwise, has reason to believe that the
charges made for board or lodging or any other service provided in any hotel or lodging
house are excessive, he may fix a fair rate to be charged for board, lodging or other services
provided in the hotel or lodging house and in fixing such fair rate, specify separately the rate
for lodging, board or other services.

(2) In determining the fair rate under sub- section (1), the Rent Authority shall have regard to
the circumstances of the, case and to the prevailing rate of charges for the same or similar
accommodation, board and service, during the twelve months immediately preceding the 1st
day of June, 1951, and any general increase in the cost of living after that date.

Ex-parte Decree

When the defendant is absent on the day of the hearing as fixed in the summon an ex-parte
decree can be passed. The ex-parte order is passed when the plaintiff appears before the court
on the day of the hearing but the defendant does not even after the summon has been duly
served. The court can hear the suit ex-parte and give ex-parte decree against the defendant.

An ex-parte decree is a valid one and it is not null and void but can be merely voidable unless
it is annulled on a legal and valid ground. An ex-parte can be enforced like a bi-parte decree
and it has all the forces as a valid decree as held in the case of Panduranga Ramchandra v.
Shantibai Ramchandra.1

1
1989 AIR 2240, 1989 SCR Supl. (2) 1
Analysis and solution of the case

Order 9 Rule 6 of Civil Procedure Code provides regarding ex-parte proceedings and lays
down that `Where plaintiff appears and defendant does not appear the plaintiff has to prove
service of summons on defendant. If service of summons is proved, the court may proceed
ex-parte against defendant and may pass decree in favour of plaintiff, if the plaintiff proves
his case."

So when defendant has not appeared on date of hearing of case, and plaintiff appears and
proves the service of summons on defendant, then court can proceed with the case ex-parte
and pass decree in favour of plaintiff, if he proves his case. The defendant against whom an
ex-parte decree has been passed has the following remedies: -

(a) He can apply to court by which such decree is passed to set it aside (Order 9 Rule 13).

(b) Prefer appeal against such decree (Section 96(2)).

(c) Apply for review (Order 47 and Section 114).

(d) File suit on ground of fraud.

That being the legal position, coming now to case in hand, it is admitted that 27-5-89 was
fixed for evidence of landlord and 2-6-89 was fixed for recording evidence of tenant.
However, on 27-5-89 defendant (tenant) did not appear nor his counsel appeared in court and
thus court proceeded ex-parte and after recording plaintiff's evidence passed ex- parte
eviction decree against tenant on 27-5- 89. On that very day i.e. 27-5- 89 tenant applied under
Rule 13 Order 9 for setting aside above said ex-parte eviction decree on the ground that he
was ill and his counsel had forgotten to mention the case in his diary.

Rule 13 of Order 9 C.P.C. provides that if defendant satisfies the court that he was prevented
by "sufficient cause" from appearing on date of hearing of case, court will set aside decree
passed against him. However expression "sufficient cause" has not been defined. Thus every
case has to be seen in light of peculiar facts of case. Supreme Court recently in G.P.
Srivastva v. R.K. Raizada2 has held :-

"Under Order 9 Rule 13 C.P.C., an exparte decree passed against defendant can be set aside
upon the satisfaction of court that either summons were not duly served upon defendant or he
was prevented by "sufficient cause" from appearing when suit was called for hearing.

2
AIR 2000 SC 1221 
Words "was prevented by sufficient cause from appearing" must be liberally construed to
enable the court to do complete justice between parties. "Sufficient cause" for the purpose of
O. 9 R. 13 CPC has to be construed as elastic expression for which no hard and fast Rule can
be laid down."

Keeping in view above observations, coming now to case in hand - Defendant has taken the
plea that he was lying ill on date of hearing of suit i.e. 27-5-89 for which he has filed
Affidavit though has not produced any Medical Certificate to substantiate his plea and it is
also pleaded that his counsel forgot to mention the case in Diary and therefore his counsel
could not appear. To prove this fact, Affidavit of counsel and diary is produced. Plaintiff by
way of Affidavit has rebutted the plea taken by defendant.

Considering the facts and keeping in view the observations of Supreme Court in this regard it
can be said that defendant had a "sufficient cause" which prevented him from appearing in
court on relevant date. We should not insist on strict proof of fact of illness of defendant and
thus his application under Rule 13 of Order 9 C.P.C. deserves to be accepted and ex-parte
eviction decree should be set aside.

Case law related to the problem:

Suraj Parkash Sabharwal vs Harbans Kaur And Anr. on 27 March, 1968

This is a second appeal from order, presented under section 39 of the Delhi Rent Control Act,
1958 (hereafter called the Act) from the order of the learned Rent Control Tribunal dated
5/12/1967 dismissing the appellant`s appeal from the order of the learned Additional Rent
Controller dated 4/9/1967 rejecting the application of Suraj Parkash for setting aside the ex-
parte order of eviction made on 27/5/1966. On 27/5/1966, neither the tenant nor his counsel
appeared at the hearing, with the result that on that very day, an ex-parte order of eviction
was made against him. On an application for setting aside the ex-parte order having been
made, btoh the Courts below, on a consideration of the evidence, have come to the concurrent
conclusion that the tenant had nto shown any sufficient cause for his absence on 27/5/1966
and on this finding, declined to set aside the ex-parte decree.

Before me, an attempt has been made to persuade me to reevaluate the evidence and come to
the conclusion that there was a just ground for the tenant nto to appear on 27/5/1966, but I am
unable to find any ground on Second Appeal under section 39 of the Act to re-assess the
evidence for myself.
Unless the appeal involves some substantial question of law, this Court has no power to
interfere under section 39(2) of the Act with the conclusions of the Rent Control Tribunal.
The next challenge is based on the argument that the Rent Controller having actually fixed
2/6/1966 for the evidence of the tenant, merely because he was absent on 27/5/1966, when
the landlord’s evidence was to be recorded, could nto, on any reasonable ground, justify
preponement of the case and of giving a final decision ex-parte against the tenant on
27/5/1966. On general principles, it appears to me that the Order made earlier fixing
2/6/1966 for the evidence of the tenant, could nto be ignored and the tenant deprived of his
right to adduce his evidence on that date, without cogent and legally supportable reasons.
Needless to point out that no statutory provision has been brought to my ntoice which would
support or justify virtual review of the order fixing 2/6/1966 as the date for recording the
tenant`s evidence.

Our law of procedure is indeed grounded on the recognised principle of natural justice which
requires that decisions prejudicially affecting the parties should nto as a general rule be
reached behind their backs without affording them a reasonable opportunity of hearing.
Bhupinder Singh, It is thus clear that non-appearance of the tenant on 27/5/1966 merely
entitled recording of the evidence of the opposite party in the tenant`s absence but it did nto
in any way have the effect of interfering with the earlier order fixing 2/6/1966 for recording
the tenant`s evidence. As a matter of fact, it appears to me that passing the ex-parte order of
eviction on 27/5/1966 virtually amounts to reviewing the earlier order dated 14/4/1966 when
2/6/1966 was fixed for recording the tenant`s evidence and for this procedure, there could
hardly be any section. The respondent's learned counsel has, however, also contended that in
the application for setting aside the ex-parte order made on 27/5/1966, the final order of
ejectment could nto be questioned and that it was only on appeal that it could be assailed. I
am wholly unable to appreciate this contention. This contention also seems to me to be amply
met by the reasoning contained in the Supreme Court decision in the case of Sangram Singh.
But this apart, it was certainly open to the tenant to seek to have btoh the order recording the
opposite party's evidence in the absence of the tenant, and the ex-parte order of eviction set
aside. The finding that there was no justification for his absence recorded on 17/5/1966
merely meant that the evidence of the landlord in the absence of the tenant was binding on
the opposite party, but it did nto further deprive the tenant of his right to seek the final order
of eviction, also made ex-parte, set aside for the simple reason that it was made without any
legal justification before recording the tenant's evidence already fixed for 2/6/1966 Whether
or nto the tenant could also have appealed from the order of eviction on this ground, does nto
deprive the tenant of his right to have the final ex-parte order of eviction set aside in these
proceedings. This objection on behalf of the respondents thus fails.

The respondents have next submitted that the present proceedings are merely intended to
delay the disposal of the ejectment proceedings because the tenant had not summoned any
witnesses for 2/6/1966. In my opinion, if the tenant had a right to produce his evidence on
2/6/1966, the fact that he had not summoned any witness, would be immaterial because he
could have brought the witnesses with him or at least he could have put himself in the
witness-box. This objection raised by the respondents would thus seem to me to be too
tenuous to justify the ex-parte order of eviction.

After considering all the facts and circumstances of this case, in my view, the impugned
orders must be quashed and the case sent back to the Rent Controller for recording the
evidence of the tenant. As the proceedings have been prolonged primarily because of the
absence of the tenant and his counsel on 27/5/1966, 1. think he must pay a sum of Rs. 150.00
as conditional costs for allowing this appeal and giving to the tenant a further opportunity of
producing his evidence. On enquiry by me, the appellant's learned counsel has given the
names of the following four witnesses whom he wants to examine in addition to himself: -
1. Sardar Harbhajan Singh.

Principle of sufficient cause

The term principle of sufficient reason is not defined anywhere, but it is similar to the case of
UCO Bank v. Iyengar Consultant3, this is a question based on the facts and circumstances of
the case. It is necessary to make sure that the parties are actually and honestly intended to
attend the oral trial and have done their best to do so. There are some cases that were
considered good reasons: B. Delayed train arrivals, council illness, lawyer strikes, party
member deaths, etc.

The burden of proof that there is a good reason for absence lies with the defendant.

Setting aside an ex-parte decree

Defendants can apply for the abolition of assessment-related laws and regulations. An
application to revoke a decision can be submitted to the court of competent jurisdiction. If
there are specific rules to be followed in order to abolish the valuation decree and the
3
1994 SCC, Supl. (2) 399
defendant satisfies the court for reasonable reasons, then only the valuation decree issued can
be abolished.

The statute of limitations for applications to abolish assessment-related laws is 30 days.

The reasons why the assessment system law can be overturned are as follows.

1) If the subpoena is not properly provided.

2) I was not able to appear on the day of the hearing due to "sufficient reasons".

Conclusion and suggestions

The appearance and absence of the parties will affect the case and will determine whether it
will continue, be rejected, or an assessment decree will be issued for the next hearing. If
neither party appears in court, the proceedings may be dismissed by the court. The
proceedings will continue for the next trial only if both parties appear in court.

If the plaintiff appears in court but the defendant does not appear on the day of the trial, the
court may issue a one-sided decree against the defendant. If the plaintiff does not appear, if
the defendant disagrees with the plaintiff's request, the request may be dismissed, and if the
plaintiff accepts the request, the court will respond to the plaintiff based on the plaintiff's
approval. Can issue an injunction.

If the proceedings are dismissed, or if an assessment order is issued, and if there is good
reason for one party to be absent, the proceedings may be overturned. If the court is satisfied
with the reason for the absence, the court may revoke the dismissal or valuation decision. In
all these proceedings, the court must keep in mind that no false charges will be filed in the
process of dismissal or issuance of an assessment order.