O.9 R.6 / O.8 R.10: Application for Ex-parte decree
The accrual of cause of action to file this Application: Where after filing of the Suit and service of Summons, the Defendant fails to appear on the date of hearing, the Plaintiff may apply to the Court under O.9 R.6 to proceed to pass ex-parte decree in his favour; and in case where the Defendant appears after the service of Summons, but fails to file his Written Statement within the stipulated time, or within such time as granted by the Court, the Plaintiff may take out Application under O.8 R.10 for the Court to pass decree against the Defendant.
O.9 Rule 6: Procedure when only plaintiff appears
(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-
(a) When summons duly served-If it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte;
(b) When summons not duly served-If it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant;
(c) When summons served but not in due time-If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.
O.8 Rule 10: Procedure when party fails to present written statement called for by Court
Where any party from whom a written statement is required under rule 1 or rule 9 of Order 8, fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.
O.9 R.13: Application to set aside ex-parte decree
The accrual of cause of action to file this Application: Where an ex-parte decree is passed against the defendant, the defendant may apply to the Court under this Rule, to set it aside, either on the grounds that the summons were not duly served upon him and he was not aware of the proceeding; or that due to “cogent and reasonable reason”, he was prevented from appearing when the suit was called on for hearing.
O.9 R.7: Application to set aside ex-parte Order
The accrual of cause of action to file this Application: Where due to absence of the Defendant on the date of hearing, the Court adjourns the hearing of the Suit to the next date for the purposes of proceeding ex-parte against the Defendant, on the scheduled next date of hearing, the Court is empowered under this Rule to hear the Defendant, provided the Defendant furnishes cogent and reasonable grounds for his previous non-appearance.
O.9 Rule 13: Setting aside decree ex parte against defendants
In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies 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:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
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 plaintiffs claim.
Explanation.- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.
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