Order IX Rule 6 (1)(a) lays down the procedure where after due service of summons, the defendant does not appear when the suit is called on for hearing. In that situation, the court may make an order that suit shall be heard ex parte.
The legal position with regard to Order IX Rule 6 has been explained by a 3-Judge Bench of Supreme Court in the case of Arjun Singh[1], wherein this Court stated thus:
“………Rule 6(1)(a) enables the Court to proceed ex parte where the defendant is absent even after due service. Rule 6 contemplates two cases:
(1) The day on which the defendant fails to appear is one of which the defendant has no intimation that the suit will be taken up for final hearing for example, where the hearing is only the first hearing of the suit, and
(2) where the stage of the first hearing is passed and the hearing which is fixed is for the disposal of the suit and the defendant is not present on such a day. The effect of proceeding ex parte in the two sets of cases would obviously mean a great difference in the result.
So far as the first type of cases is concerned it has to be adjourned for final disposal and, as already seen, it would be open to the defendant to appear on that date and defend the suit. In the second type of cases, however, one of two things might happen. The evidence of the plaintiff might be taken then and there and judgment might be pronounced……….”
The following observations made by the Court in Arjun Singh (supra) with reference to Order IX Rule 7,Order IX Rule 13 and Order XX Rule 1 are quite apposite and may be reproduced as it is:
“………On the terms of O.IX, r.7 (Procedure where defendant appears on adjourned day and provide sufficient reasons for his non-appearance) if the defendant appears on such adjourned date and satisfies the court by showing good cause for his non-appearance on the previous day or days he might have the earlier proceedings recalled — “set the clock back” and have the suit heard in his presence. On the other hand, he might fail in showing good cause.
Even in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial.
Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing of a suit has been provided for and O.IX, r.7 and O.IX, r. 13 (Setting aside decree exparte against defendant) between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus, provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice.
Mr. Pathak, however, strenuously contended that a case of the sort now on hand where a defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for. We consider that the suggestion that there is such a stage is, on the scheme of the Code, wholly unrealistic.
In the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit:
(1) where the hearing is adjourned or
(2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that O.XX, R.1 (Judgment when Pronounced) permits judgment to be delivered after an interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by O.IX, r. 7 is passed the next stage is only the passing of a decree which on the terms of O.IX, r. 6 the Court is competent to pass.
And then follows the remedy of the party to have that decree set aside by application under O. IX, r.13. There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of O. IX, r.7……….”
[1] Arjun Singh v. Mohindra Kumar, (1964) 5 SCR 946