What Must Be Pleaded in an Application under Order IX Rule 13 CPC? merely pleading non-service of summons is not sufficient

 In addition to pleading the factum of non-service what else had the defendant to plead in an application to set aside the ex-parte decree and under which provision?

To set aside an ex parte decree under the Code of Civil Procedure, 1908 (CPC), merely pleading non-service of summons is not sufficient. The defendant must also plead that he had no knowledge of the decree and must approach the court within the limitation period prescribed by law.

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📘 Relevant Provision:

🟩 Order IX Rule 13 CPC – Setting aside ex parte decree

“In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order to set aside the decree…”

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⚖️ What Must Be Pleaded in an Application under Order IX Rule 13 CPC?

✅ 1. Factum of Non-Service of Summons

• The defendant must show that summons were not duly served in accordance with law.

✅ 2. Lack of Knowledge of Proceedings / Decree

• The defendant must assert that due to non-service, he had no knowledge of the suit or the decree.

• This is important for the starting point of limitation under Article 123 of the Limitation Act, 1963.

✅ 3. Application within Limitation Period

• Under Article 123, Limitation Act, the application must be filed:

  • 30 days from the date of knowledge of the decree (if summons were not duly served), or

  • 30 days from the date of decree (if summons were duly served and defendant failed to appear for other sufficient cause).

✅ 4. Sufficient Cause for Non-Appearance (if summons were served)

• If summons were served, the defendant must show sufficient cause for his non-appearance (e.g., illness, accident, wrong address, etc.).

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🔖 Leading Case Laws:

🔹 Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993

Merely asserting non-service of summons is not enough. The burden is on the defendant to satisfy the court that he had no knowledge of the suit and was prevented by sufficient cause from appearing.

🔹 G. P. Srivastava v. R. K. Raizada, (2000) 3 SCC 54

Court must consider whether non-appearance was due to a genuine and sufficient cause.

🔹 Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787

If the defendant had knowledge of the decree, the limitation will run from the date of such knowledge — non-service must be coupled with absence of knowledge.

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✅ Conclusion:

In an application to set aside an ex parte decree under Order IX Rule 13 CPC, the defendant must plead:

1. Non-service of summons, and

2. Lack of knowledge of the suit/decree, and

3. That the application is filed within limitation, or that there is sufficient cause for non-appearance (if service was effected).

⚠️ Non-service alone is not enough — the court must be satisfied that the defendant was not aware of the proceedings and that his absence was neither deliberate nor negligent.