Order IX Rule 13 of the Civil Procedure Code 1908 of Pakistan (hereinafter referred to as CPCP) provides an avenue for defendants to seek the setting aside of ex parte decrees on the grounds of non-service of summons or sufficient cause for non-appearance. While this provision aims to ensure fairness and procedural justice, it is often criticised for being susceptible to abuse, leading to delays in resolving disputes.
Defendants often file multiple applications under Order IX Rule 13 on frivolous grounds, exploiting the court’s inclination toward procedural fairness. Several case laws have illustrated the abuse of this provision. For example, in the case of Nisar vs Said Qamar (Late) through LRs and others, where possession of disputed property was in contention, the court dismissed the application under Order IX Rule 13 filed by the defendant, as it did not provide sufficient cause for non-appearance of the defendant and was time-barred.
The application was time-barred for four months under Article 164 of the First Schedule to the Limitation Act 1908 (‘LA’), which is the provision that governs limitation for applications under Order IX Rule 13, and was also not supported by any application for condonation of delay. The sufficient cause shown was that he tested positive for Covid-19, and he did not provide a proper report of his illness. This case is a prime example of how Order IX Rule 13 is abused by parties to delay proceedings.
India also has the same law as Pakistan, which is Order IX of the Civil Procedure Code 1908 of India (‘CPCI’) for setting aside ex parte decrees. Many defendants have filed applications under Order IX Rule 13 of the CPCI to set aside ex parte decrees, sometimes as a tactic to delay proceedings. In the case of Smt Nisha vs Shamshulhaq, the defendant filed an application under Order IX Rule 13 CPC to set aside an ex parte decree, citing reasons for non-appearance.
The trial court rejected the application for condonation of delay along with the application under Order IX Rule 13, while noting the defendant's repeated absences. The court finally allowed the application under order IX rule 13 and set aside the ex parte judgement on the basis that, in the interests of justice, “for the mistake of counsel, the petitioner who has otherwise shown his bonafides cannot be made to suffer”.
So, this was one case where the potential dilatory tactics of the defendant worked by setting aside the ex parte decree, as this could have been staged by the counsel and his client, allowing the defendant to escape the consequences of non-appearance. Here, an application under Order IX Rule 13 is used to potentially delay proceedings. However, one thing India has done differently from Pakistan is that Indian courts are more accepting of delays in the filing of applications to set aside ex parte decrees, in that they allow delays in filing applications on the basis that it is in the interests of justice to do so. So, although India has a more friendly approach to such applications to set aside ex parte orders, it is more prone to exploitation by defendants who may abuse Order IX Rule 13 to delay proceedings, as courts may consider allowing these applications to be in the interests of justice.
Another jurisdiction we garner inspiration from is the UK, where the relevant provision for setting aside an ex parte decree is given under rule 39.3 (3) (4) (5) of the Civil Procedure Rules 1998 (‘CPR’). A plain reading of the provision shows that Rule 39.3(5) of CPR gives a test that needs to be satisfied to have the ex parte judgment or order set aside. The applicant must satisfy all three conditions of promptness in filing such an application, good reason for non-attendance, and a reasonable prospect of success if the case were reheard.
Several case laws illustrate the application of this provision. For example, in the case of Mabrouk v Murray, although the defendant had failed to even file an application under Rule 39.3 of the CPR, the court considered it as the appropriate response and went on to determine whether the 3-part test would be satisfied. The Court of Appeal determined that the defendant had failed to satisfy any of the three conditions of the test to allow the application, which he had not filed in the first place. Here, the court imposed a stringent criterion upon the defendant to meet to allow the application and even stated that the “defendant’s nonattendance was deliberate”.
So, we can safely infer that the UK has a much stricter criterion through a three-part test in allowing applications to set aside ex parte orders or judgments. This strict criterion is more effective when it comes to deterring defendants from abusing Rule 39.3 of the CPR to delay proceedings.
Pakistan should follow the example of the UK and amend its provision to include a stricter test for allowing applications to set aside ex parte decrees, which is crucial. But the criterion of promptness should not be adopted in Pakistan, as it would allow for too much judicial discretion, and judges could have too harsh or lenient takes on when an application could be prompt. The time to file such applications can be reduced to ensure procedural efficiency. At present, this time is set at 30 days under article 164 of the First Schedule to the LA from the date of knowledge of the decree, when the summons was not duly served, or otherwise from the date of the decree.
Moreover, the criteria showing a reasonable prospect of success at a retrial in an application to set aside ex parte decrees should be adopted, as it would provide further reassurance to the court that it is not just a dilatory tactic. The need for a good reason for non-attendance is already present within Pakistan in the form of requiring sufficient cause for non-appearance when the suit is called on for hearing.
So, my recommendation is to include a test in Pakistan whereby, for applications for setting aside ex parte decrees to be allowed, they need to provide sufficient reason for non-appearance when the suit was called on for hearing and a reasonable prospect of success for the defendant if the case were reheard. Further, the time period for filing such applications can still be governed under the LA but can be amended as described above.
In summary, Pakistan can strengthen its civil justice system through these reforms, which would help curb delays, prevent misuse and ensure that justice is delivered fairly and effectively. It remains to be seen, though, if these suggestions will be followed.
The writer is a freelance contributor.
