Recalling of ex-parte orders

This review of recent case citations offers a comprehensive overview of how various High Courts in Pakistan approach applications for recalling ex parte orders under Rule  13 of the Civil Procedure Code 1908 (Order IX, CPC). This legal note aims to distill the principles and attitudes reflected in these judgments.

Key Principles:

Diligence and Proper Service: Courts emphasize the importance of diligence by the parties. In cases like 2023 CLC 768 (Lahore High Court), the petitioner’s active participation initially and later non-appearance without sufficient cause led to the upholding of the ex parte decree.

Sufficient Cause for Non-Appearance: The necessity of demonstrating a sufficient cause for non-appearance is crucial. In 2023 MLD 1870 (Peshawar High Court), the petitioner’s failure to provide evidence of his COVID-19 illness and his delayed action were significant factors in the dismissal of his application.

Avoidance of Technicalities in Favor of Merits: The case 2023 PLC 233 (Implementation Tribunal for Newspaper Employee) shows a leniency towards technicalities, emphasizing the decision on merits and ensuring justice is not denied on mere procedural grounds.

Condonation of Delay: The courts are generally strict about the limitation period as illustrated in the 2023 MLD 1870 case. However, there’s a tendency to consider the condonation of delay if justified properly.

Fraud and Misrepresentation: In cases where fraud or misrepresentation is alleged, like in 2023 CLD 1124 (Karachi High Court), courts demand substantial evidence. Merely alleging fraud without concrete proof is insufficient to recall an ex parte order.

Protection of Minors: The Lahore High Court in 2023 YLR 78 showed particular concern for minors, ensuring that their rights were not overlooked and that their cases were not dismissed as routine matters.

Role of Settlements and Compromises: The Supreme Court in 2023 SCMR 159 highlighted the importance of clear and documented evidence of any settlements or compromises that could affect the case proceedings.

Relevance of Procedural Compliance: The Lahore High Court in 2023 MLD 511 emphasized the importance of following proper procedures, particularly in issuing and serving summons, which is fundamental to the validity of ex parte decrees.

Doctrine of Election of Remedies and Res Judicata:

In 2022 MLD 1961 (Islamabad), the court held that once a party chooses a specific remedy (here, under S.12(2) CPC), they cannot later pursue an alternate remedy under O.IX, R.13, particularly after the first one fails. This embodies the doctrine of election of remedies and the principle of res judicata.

Non-Assailing of Preliminary Decrees:

The 2022 YLR 944 (Peshawar High Court) case demonstrates that failing to challenge a preliminary ex-parte decree precludes challenging the final decree, as per S.97 CPC.

Issue of Limitation and Condonation of Delay:

In 2022 MLD 1490 (Islamabad) and 2022 YLR 361 (Gilgit-Baltistan Chief Court), the courts emphasize the importance of adhering to the limitation period (as per Article 164 of the Limitation Act, 1908) for filing applications under O.IX, R.13. The failure to apply for condonation of delay is a crucial factor in the dismissal of the applications.

Service of Notice and Procedural Compliance:

2022 MLD 250 (Lahore High Court) and 2022 CLC 1529 (Lahore High Court) highlight the significance of proper service of notice. The courts scrutinized whether the service was executed as per mandatory provisions and whether there was any defective or erroneous service.

Scope of the Suit and Constitutional Guarantees:

In 2022 PLD 68 (Islamabad), the court held that proceeding with an order in the main suit without notice to the parties contravenes constitutional guarantees (Art. 10-A), thus setting aside the ex-parte proceedings.

Transfer of Case and Lack of Knowledge:

2021 CLC 757 (Lahore High Court) shows the court’s concern for ensuring that parties are aware of case transfers. A lack of notice about such transfers, leading to ex-parte proceedings, can be a valid ground for setting aside these proceedings.

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Incorrect Address and Representation Issues:

2021 CLC 684 (Lahore High Court) deals with a situation where the defendant’s correct address was not used, and an unsigned memo of appearance by an advocate led to ex-parte proceedings. The court acknowledged these irregularities and allowed the application for setting aside the ex-parte decrees

Importance of Proper Notice and Knowledge of Proceedings:

In 2021 CLC 757 (Lahore High Court), the court emphasized the necessity of proper notice to the parties, particularly when a case is transferred between courts. Lack of such notice can be a ground for setting aside ex parte proceedings.

Similarly, 2021 YLR 1731 (Lahore High Court) demonstrated that a party’s knowledge of the proceedings and intentional absence can be a significant factor against the recall of an ex parte order.

Service Irregularities and Address Discrepancies:

2021 CLC 684 (Lahore High Court) dealt with a situation where the defendant’s address was incorrectly mentioned, and a non-authorized advocate appeared, leading to an ex parte decree. The court allowed setting aside the decree on these grounds.

Limitation and Timeliness of Applications:

Cases like 2021 PLD 678 (Lahore High Court) and 2020 CLCN 4 (Lahore High Court) illustrate the strict approach towards the limitation period for filing applications under Order IX, Rule 13. Delayed applications without sufficient cause for condonation of delay are generally not entertained.

Fraud, Misrepresentation, and Jurisdictional Issues:

In cases like 2020 CLC 111 (Peshawar High Court), the courts require detailed and cogent evidence of fraud or misrepresentation to set aside a decree. Mere assertions without substantial proof are insufficient.

2021 PLD 678 (Lahore High Court) also indicates that issues like jurisdictional errors can be grounds for setting aside an ex parte decree.

Focus on Fair Trial and Natural Justice:

The courts, as seen in 2021 CLC 1189 (Quetta High Court) and 2021 CLC 25 (Lahore High Court), emphasize the principles of a fair trial and natural justice. Procedural irregularities that lead to a party being condemned unheard can lead to the setting aside of ex parte orders.

Consideration of Merits in Original Lis:

In 2021 CLC 25 (Lahore High Court), the court observed that while dealing with applications for setting aside ex parte decrees, the merits of the original lawsuit could be considered, which indicates a preference for adjudication on merits rather than purely on technical grounds.

Multiplicity of Remedies and Choice of Legal Action:

2021 PLD 678 (Lahore High Court) highlighted that a suitor must choose from among various legal actions or remedies available under the law, and this choice can influence the court’s decision on whether to set aside an ex parte decree.

Proper Service and Opportunity for Hearing:

2020 MLD 562 (Lahore High Court): The court set aside an ex parte decree due to the lack of proper service and absence of a speaking order justifying the proclamation in a newspaper. The court stressed the necessity for a fair opportunity for hearing.

Principle of Election of Remedy and Res Judicata:

2020 PLD 361 (Islamabad): This case emphasizes the principle of election of remedy. Once a party chooses one remedy (either an application under O.IX, R.13 or an appeal under S.96), the other remedy is no longer available, and the matter regarding the order to proceed ex parte is hit by res judicata.

Strict Adherence to Limitation Periods:

2020 CLCN 4 (Lahore High Court) and 2019 MLD 1082 (Peshawar High Court): These cases highlight the courts’ strict approach to limitation periods for filing applications to set aside ex parte decrees, emphasizing that delayed applications without sufficient cause for condonation of delay are typically not entertained.

Situational Flexibility in Limitation:

2020 CLC 111 (Peshawar High Court): This case notes that while there is a prescribed limitation period for setting aside an ex-parte decree, no specific period is mentioned for setting aside an order whereby a defendant is proceeded against ex-parte, offering a more flexible timeframe under Art. 181 of the Limitation Act.

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Consideration of Circumstances and Merits:

2020 MLD 1166 (Lahore High Court): The court allowed the application for permission to file a list of witnesses based on the petitioner’s circumstances (an accident resulting in injury), demonstrating the courts’ willingness to consider individual circumstances and merits.

Concealment of Facts and Fraud:

2019 YLR 2423 (Lahore High Court): This case underlines that an ex parte decree obtained by concealment of facts and misrepresentation can be set aside, emphasizing the importance of honesty and full disclosure in court proceedings.

Importance of Proper Notice and Adherence to Principles of Natural Justice:

2019 YLR 43 (Lahore High Court): The court highlighted the principle of ‘audi alteram partem’ (listen to the other side), setting aside an ex parte decree because the suit was restored without notice to the defendant, violating principles of natural justice.

Conclusions

(1) Pakistani courts, in dealing with applications to recall ex parte orders under Section 13 of Order IX of the CPC, demonstrate a commitment to ensuring procedural fairness and adherence to legal formalities. The decisions reflect a balance between strict enforcement of rules, particularly regarding service and limitation periods, and a consideration of individual circumstances and merits. The courts emphasize the principles of natural justice, fair trial, and discourage any form of misrepresentation or concealment of facts in legal proceedings.

(2) Pakistani courts, in dealing with Section 13 of Order IX of the CPC, demonstrate a balanced approach, prioritizing procedural correctness, adherence to limitation periods, and ensuring a fair trial. The courts are vigilant against procedural irregularities like improper service or lack of notice but require substantial evidence in cases alleging fraud or misrepresentation. The emphasis is on ensuring justice is not denied due to technicalities, while also upholding the sanctity of legal processes and timeliness in seeking remedies.

(3) The cases provided offer insights into the Pakistani courts’ approach to applications for recalling ex parte orders under Section 13 of Order IX of the CPC. These decisions reflect the courts’ emphasis on procedural fairness, adherence to legal formalities, and the circumstances in which ex parte orders can be successfully challenged and set aside.

(4) Pakistani courts, while dealing with applications for setting aside ex parte orders under Section 13 of the CPC, focus on several key aspects:

  • Adherence to procedural norms, especially regarding the service of notice.
  • The importance of challenging preliminary decrees.
  • Compliance with limitation periods and the proper filing for condonation of delay.
  • Ensuring that parties are not disadvantaged by a lack of knowledge due to procedural oversights, such as in case transfers.
  • The doctrine of election of remedies and the principle of res judicata play a significant role in determining the permissibility of seeking alternate remedies.

(5) The attitude of Pakistani courts towards recalling ex parte orders under Section 13 of the CPC is governed by principles of justice, equity, and good conscience. Courts demand diligence and a sufficient cause for non-appearance from the parties. They are cautious about accepting claims of fraud or misrepresentation without solid evidence. There is a notable emphasis on deciding cases based on their merits rather than on technicalities, especially in scenarios involving minors or evident procedural lapses. However, the adherence to procedural norms and statutory limitation periods is equally underscored, signifying a balanced approach towards the administration of justice.

Citations:

  • 2020 MLD 562 Lahore High Court
  • 2020 PLD 361 Islamabad
  • 2020 CLCN 4 Lahore High Court
  • 2020 CLC 111 Peshawar High Court
  • 2020 MLD 1166 Lahore High Court
  • 2019 YLR 2423 Lahore High Court
  • 2019 CLCN 48 Gilgit-Baltistan Chief Court
  • 2019 PLD 255 Islamabad
  • 2019 MLD 1082 Peshawar High Court
  • 2019 YLR 43 Lahore High Court
  • 2021 CLC 757 Lahore High Court
  • 2021 CLC 684 Lahore High Court
  • 2021 PLD 678 Lahore High Court
  • 2021 YLR 1731 Lahore High Court
  • 2021 CLC 1189 Quetta High Court
  • 2021 CLC 25 Lahore High Court
  • 2021 MLD 872 Islamabad
  • 2020 MLD 562 Lahore High Court
  • 2020 CLCN 4 Lahore High Court
  • 2020 CLC 111 Peshawar High Court
  • 2022 MLD 1961 Islamabad
  • 2022 YLR 944 Peshawar High Court
  • 2022 MLD 1490 Islamabad
  • 2022 YLR 361 Gilgit-Baltistan Chief Court
  • 2022 MLD 250 Lahore High Court
  • 2022 CLC 1 Karachi High Court-Sindh
  • 2022 CLC 1529 Lahore High Court
  • 2022 PLD 68 Islamabad
  • 2021 CLC 757 Lahore High Court
  • 2021 CLC 684 Lahore High Court
  • 2023 CLC 768 Lahore High Court
  • 2023 MLD 1870 Peshawar High Court
  • 2023 PLC 233 Implementation Tribunal for Newspaper Employee
  • 2023 YLR 78 Lahore High Court
  • 2023 CLD 1124 Karachi High Court
  • 2023 SCMR 159 Supreme Court
  • 2023 MLD 511 Lahore High Court
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Suggested Sample /Specimen of Application

 Below is a draft for a court application under Order IX Rule 13 of the Civil Procedure Code for setting aside an ex parte decree. This draft is a general template and should be used for general guidance only, tailored to the specific facts and circumstances of any case:


IN THE COURT OF [COURT NAME]

[CASE TITLE: PLAINTIFF VS. DEFENDANT]

SUIT NO.: [XXXXX]

APPLICATION UNDER ORDER IX RULE 13 OF THE CIVIL PROCEDURE CODE FOR SETTING ASIDE DECREE PASSED EX PARTE

Respectfully Sheweth:

  1. That the above-mentioned suit was filed by the Plaintiff against the Defendant, and on [Date], an ex parte decree was passed in favour of the Plaintiff as the Defendant was unable to appear before this Honorable Court.
  2. That the Defendant respectfully submits that the summons for the said hearing was not duly served. [Provide details of the claim regarding the non-service or irregular service of summons, if applicable.]
  3. Alternatively, the Defendant was prevented by sufficient cause from appearing when the suit was called on for hearing. [Detail the sufficient cause, such as medical emergency, unavoidable circumstances, etc., with supporting evidence if available.]
  4. That the Defendant had no knowledge of the said hearing on [Date of Hearing] and only came to know about the ex parte decree passed against him/her on [Date of Knowledge].
  5. That the Defendant is ready to bear the costs as ordered by this Honorable Court and make payment into the Court or comply with other directions as this Honorable Court deems fit.
  6. That it is in the interest of justice and fairness that the ex parte decree passed against the Defendant be set aside and the Defendant be given an opportunity to present his/her case.
  7. That the Defendant undertakes to abide by any terms that this Honorable Court may impose for setting aside the said ex parte decree.

PRAYER:

In light of the above circumstances, it is most respectfully prayed that this Honorable Court may be pleased to:

a. Set aside the ex parte decree passed against the Defendant on [Date of Decree].

b. Appoint a day for proceeding with the suit.

c. Pass any other order or direction as this Honorable Court may deem fit and proper in the interest of justice.

Place: [Location] Date: [Date]

[Applicant’s Name] Defendant through [Advocate’s Name] Advocate for the Defendant

VERIFICATION

I, [Applicant’s Name], the applicant herein, do hereby declare and verify that the contents of paragraphs 1 to 7 are true and correct to my knowledge and belief, no part of it is false and nothing material has been concealed therefrom.

Verified at [Location] on this [Date].

[Applicant’s Signature]

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