O IX R 6 CPC – Does CPC Contemplate An Order Setting Defendant Ex Parte ?

When a defendant does not appear when the Suit is called on for hearing on receipt of summons, we can see Courts passing order setting defendant Ex Parte. Is such an order contemplated under CPC?

In Sangram Singh vs Election Tribunal [AIR 1955 SC 425], the Supreme Court termed such a practice as ‘erroneous’. “The fact that it is proceeding ex parte will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ex parte decree or other ex parte order which the Court is authorised to make. All that Rule 6(1)(a) does is to remove a bar and no more. It merely authorises the Court to do that which it could not have done without this authority, namely to proceed in the absence of one of the parties.“, it was held.

In 2019, a Division Bench of Andhra Pradesh High Court noted that there is a practice in all the trial Courts to set the defendant ex parte. Referring to Sangram Singh, the court said that it is a misnomer and no formal order of setting the defendant ex parte is contemplated under CPC. According to the bench, the appropriate order that could be passed is that “suit be heard ex parte” as contemplated under Order IX Rule 6(1)(a) CPC. [See B Srinatha Reddy vs District Legal Service Authority]

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