Even an ex-parte judgement/ order has to be on merits

 According to Order XX of the Civil Procedure Code, 1908 (hereinafter referred to as the CPC), no suit can be decreed as a matter of course, and every judgment has to be on merits.

Every judgment passed by a court of law has to be on merits, irrespective of the fact, whether or not, the defendant appears before the court of law and defends himself.

If the defendant appears before the court and states that he does not want to defend himself, that will not enable the court to give an automatic decree in favour of the plaintiff. The court can, after due application of mind, decree or even reject the claim of the plaintiff.

It is important to note that if, the court finds that matter before it is complex and it would require legal assistance to decide the matter on merits then the court, on its own motion, can appoint an advocate to assist it, and such advocate is called amicus curiae

• In the matter of: Lakshmi Ram Bhuyan V/s Hari Prasad Bhuyan, (2003) 1 SCC 197, it was held that:

“… Order XX requires a judgment to contain all the issues and findings or decision thereon with the reasons therefore. The judgment has to state the relief allowed to a party. The preparation of decree follows the judgment. The decree shall agree with the judgment. The decree shall contain, inter alia, particulars of the claim and shall specify clearly the relief granted or other determination of the suit. The decree shall also state the amount of costs incurred in the suit and by whom or out of what property and in what proportions such costs are to be paid.”

• In the matter of: Ramesh Chand Ardawatiya V/s Anil Pajwani, AIR 2003 SC 2508, while considering the provisions of Order IX, Rule 6 and Order VIII, Rule 10 of the CPC, it was observed that even if the suit proceeds ex-parte under Order IX, Rule 6 of the CPC, the necessity of proof by the plaintiff of its case cannot be dispensed with.

• Maya Devi V/s Lalta Prasad, (2015) 5 SCC 588, it was held that the absence of defendant to contest the suit does not invite a punishment in the form of an automatic decree.

• State of Rajasthan V/s Ani, (1997) 6 SCC 162, it was held that Section 165 of the Indian Evidence Act, 1872 confers vast and unrestricted powers on the trial court to put “any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant” in order to discover relevant facts. 

Plaintiff has to stand on its own legs:

If the defendant submits to the court that he does not want to defend himself, as a matter of his choice then this does not mean that the defendant admits the assertions made against him by the plaintiff in the plaint. The plaintiff still has to prove his case by leading necessary and cogent evidence, as required
 In the matter of: Anil Rishi V/s Gurbaksh Singh, (2006) 5 SCC 558, it was observed that:
                                                                                                                                                                             “… The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act… In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. … In terms of Section 102 [of the IEA] the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.”