Does an Ex-parte order bars a defendant from taking part in sub-judice proceedings ?
I have observed that a question normally pops up during discussions regarding the nature, effect and extent of an order proceeding Ex-Parte against a respondent / defendant. Specifically put, the question is that “whether a defendant who remained absent initially due to which an order for proceedings exparte against him was passed, if appears subsequently after the said order – Can he take part in the proceedings and what is the remedy for proceedings that took place in his absence & may be against his interest ?
The difference between the said provisions and between their usage in a case, has been amply covered in the following few Paras taken from the judgment rendered by Hon’ble High Court of Kerala in “Kumara Pillai vs Thomas” AIR 1961 KERALA 287.
“……..Order 9, Rule 6, is not meant to be a penal clause but is only meant to prevent undue delay. If the defendant chooses not to appear after he has been served, the court may proceed in his absence, but if he subsequently appears he ought not to be debarred from taking any further Part in the proceedings even if he can show no good cause for his absence: all that the Code says in Order 9, Rule 7, is that, if he does show good cause, the ex parte order may be set aside and the defendant heard in answer to the suit, as if he had appeared on the date fixed. That means that the case is put back to the stage at which it had arrived when the defendant first failed to appear; and the defendant suffers no loss or disadvantage through his non-appearance except perhaps an order for costs. If however the defendant fails to show good cause, he cannot claim any rehearing, and what has already taken place in his absence must stand. As regards future proceedings however he should not he debarred from appearing and contesting the suit.
“…………………………………The case of an ex parte decree is of course different, because there the suit has been heard and has been finally decided. It would be inequitable then to reopen the matter unless the defendant can show good cause for his non-appearance. Where however a case is still sub judice, the defendant should not, I think, be further prejudiced by his absence than by the fact that all proceedings that took place in his absence will stand and he should be allowed to take part in future proceedings and to defend the case. An ex parte order does not in itself mean that the defendant shall be debarred for ever from taking all Part in the trial: all it means is that the trial shall proceed in his absence and that anything that takes place in his absence shall hold good. A decree however is in its nature final and when an ex parte decree is passed, there can be no question of any future appearance by the defendant who has now become a judgment-debtor; and, unless he can show good cause for his non appearance, the decree will stand unless and until it is set aside on appeal.”
