When an ex-parte decree is passed, the defendant has two remedies –
(a) Either to file an application under Order IX Rule 13 Code of Civil Procedure, 1908 to set aside the ex-parte decree by satisfying the court that the summons was not served or if served, the defendant was prevented by “sufficient cause” from appearing in the court.
Exparte proceedings means the legal proceedings conducted by the court for one party when the other party fails to appear before the court or give its say. Once the case is disposed off ex-parte, the party against whom the ex-parte order is passed can go for appeal against the order in the higher court.
The defendant has to prove in front of the court that there was a sufficient cause which prevented him from appearing in the proceedings on the due date: The term “sufficient cause” is nowhere defined under the code and therefore, the meaning of the term ‘sufficient cause’ has to be determined by the courts liberally keeping in view the facts and circumstances of the case. No party should be condemned unheard unless there has been something equivalent to misconduct or gross negligence on his part.
The courts are free to dismiss any case in the case of non-appearance of any party to the suit which is also the need of the hour keeping in view a large number of cases which are pending in the courts.
But at the same time, the courts are bound to continue the proceedings even in the cases where the non-appearance of any party is due to any special circumstances established by such a party.
Reference: Case law- Aziz Ahmed Khan vs I.A. Patel on 24 March, 1971