Judgments when the parties remain ex parte - Essay



It may be noticed that a plaintiff does not obtain a judgment in his favour as of right as soon as the defendant is set ex parte.

Generally the initial burden to prove the claim rests with the plaintiff. Where the defendant is contesting, a defendant need not choose to prove his claim or to disprove the claim of the plaintiff where the plaintiff himself failed to prove his claim.

Therefore, even in cases where the defendants remain ex parte, the burden rests with the plaintiffs. Therefore, it does not automatically follow that a decree is the result when the defendant is set ex parte by the court.

Consequently, even where the defendant remained ex parte, the court has to state its reasoning either for decreeing the suit or for dismissing the case. Indeed, very brief order might be written where a suit is decreed ex parte merely mentioning the issues at stake and then accepting the untested evidence of the plaintiffs side and then passing a decree.

However, there are instances where it is clear that the court owes the duty to examine the case deeply and to come to a conclusion not reacting merely like a routine matter. It is uniformally held that the courts should exercise utmost diligence in deciding matrimonial disputes on ex parte basis.

A judge is not expected to grant a decree in favour of a petitioner in a matrimonial dispute, merely for the asking even where the opposite spouse chose to remain ex parte. It is the duty of the court to examine whether the petitioner spouse made out a case for the order.

The court shall also examine whether the relief sought for by the spouse is a desirable relief in the fitness of things. For instance, if the husband sought for a divorce against the wife on the ground of desertion and cruelty, even where the husband is able to establish the existence of both the grounds, the court nevertheless may grant only judicial separation and not divorce.

Similarly, where the plaintiff claimed interest at 24 % per annum in a suit laid on the foot of a pronote, though the defendant did not contest the suit and did not allege that the rate of interest claimed is usurious, the court nonetheless may consider the interest to be penal and usurious and may reduce the rate of interest to 6% per annum.

Therefore, the common view that an ex-parte judgment need to contain only a couple of sentences to the effect that the defendants remained ex-parte, that the plaintiff examined witnesses to prove his claim, that the claim is proved and that the suit therefore is decreed is not correct.

There are other instances where the judge has to dismiss the suit despite there being no contest.

Suppose, a suit is laid on the foot of a mortgage bond. Unless the mortgage bond is registered, it cannot be enforced. Whether the defendant agrees about the mortgage bond or otherwise, the mortgage bond is unenforceable and a relief claimed on the basis of such a document cannot be granted.

The obvious result is that the suit would be dismissed. In this variety of judgments, a judge writes the judgment more or less as if there was contest from the defendant and that he was upholding the contest.

In this context it may be recalled that every court within a revenue district is entitled to summon the Government Pleader of the District or the Assistant Government Pleader of the town to examine, express his views and guide the court in respect of any matter in controversy before the court.

Even in ex parte matters, where the defendant is not the Government, the court is at liberty to take the assistance of the Government Pleader in deciding the case on merits partly, if not fully, because one side is not represented fully. It is obvious for the judge to write a regular judgment in such a case.

What is emphasised herein is that even judgments where the defendants remained ex parte should not be laconic but should be able to show that the judge has applied his mind in granting a decree in favour of the plaintiff.

It has already been pointed out that while C.P.C. provides for writing a summary judgment in small cause cases, the practice of the court is to write an ordinary judgment even in small cause cases.

Apart from this distinction, there is no differentiation between a judgment of a small cause case and judgment of a civil case [albeit the advocates choose usually to put up considerable resistance for the passing of a decree in a suit whereas the parties and counsel may not fight, so bitterly in a small cause lis surprisingly even though the same quantum of amount may be involved in both the cases.