Setting Aside of an ex-parte Order

The setting aside of an ex-parte order is a critical aspect of legal proceedings, particularly in the realm of civil litigation. An ex-parte order is a legal decision rendered in favour of one party when the other party is absent or has not had the opportunity to participate in the proceedings. In such cases, the absent party may have the right to challenge and seek the reversal of the order under specific legal provisions.

This process, often governed by the Civil Procedure Code in various jurisdictions, allows the absent party to present compelling reasons, such as improper service of summons or a “sufficient cause” for non-appearance. The goal is to ensure that justice is served and that both parties have a fair opportunity to present their cases, ultimately safeguarding the principles of fairness and due process in the legal system.

What is ex parte Order?

An ex-parte order is a legal decision issued by a court without the presence or participation of one of the parties involved in a legal proceeding. This type of order is typically granted in urgent or exceptional circumstances, such as when one party seeks immediate relief and the other party is absent or has not been given the opportunity to respond.

Ex-parte orders are usually temporary and subject to review in subsequent proceedings, ensuring that both parties have an opportunity to present their cases and that justice is upheld. Examples of ex-parte orders include temporary restraining orders, injunctions or orders for the preservation of evidence.

Can ex parte Order Be Set Aside

Yes, an ex-parte order can be set aside under certain conditions. If the party who was absent during the issuance of the ex-parte order can demonstrate to the court that there were valid and compelling reasons for their non-appearance, such as insufficient notice or a legitimate cause, they may seek to have the order overturned under Civil Procedure Code.

This typically involves filing an application with the court and providing evidence to support their claim. Courts generally aim to ensure fairness and due process and if a genuine reason for the party’s absence is established, the ex-parte order can be set aside, allowing for a reevaluation of the case with both parties present. However, the specific criteria and procedures for setting aside an ex-parte order may vary depending on the legal jurisdiction and applicable laws.

Setting Aside of an ex-parte Order under CPC

Under the Civil Procedure Code in India, an ex-parte order can be set aside by following the provisions of Order IX Rule 13. Here’s a detailed explanation of the process for setting aside an ex-parte order under CPC:

Filing an Application

To set aside an ex-parte order, the party against whom the order has been issued must file an application before the court that issued the order. This application is typically made under Order IX Rule 13 of the CPC. The application should outline the grounds on which the party is seeking to set aside the ex-parte order.

Valid Grounds

The applicant must establish valid grounds for setting aside the ex-parte order. There are two primary grounds for seeking to set aside such an order:

a. Improper Service of Summons: The applicant can argue that they did not receive proper notice of the court proceedings, often due to irregularities or deficiencies in the service of summons. The applicant must provide evidence to demonstrate that they were not adequately informed of the proceedings, which resulted in their non-appearance.

Sushil Kumar Sabharwal v. Gurpreet Singh and Ors (2002): In this case, the court acknowledged that the summons had not been duly served to the defendant. It recognised that the defendant did not have sufficient notice or opportunity to be present in court when the matter was heard. This underscores the importance of proper service of summons to ensure that the defendant is aware of the proceedings and has the opportunity to participate. When service of summons is found to be inadequate, it may provide strong grounds for setting aside an ex-parte decree.

Gauhati University v. Shri Niharlal Bhattacharjee (1995): This case deals with the limitation period for challenging an ex-parte decree when there are issues related to the service of summons. The Supreme Court held that the limitation period begins when the appellant becomes aware of the ex-parte decree. In situations where the defendant was not served properly or was unaware of the decree, they may have a valid basis for challenging the decree even if some time has passed since the decree was issued. This decision acknowledges the principle of fairness and ensures that defendants are not unfairly deprived of their rights due to improper service.

b. Sufficient Cause for Non-Appearance: The applicant can also claim that there was a “sufficient cause” that prevented them from appearing in court. “Sufficient cause” is not explicitly defined in the CPC and is subject to interpretation by the court. It typically includes reasons like illness, unavoidable circumstances or other compelling factors that justified the absence.

G.P. Srivastava v. Shri R.K. Raizada & Ors. (2000): In this case, the court emphasised that to set aside an ex-parte order, it is crucial for the party seeking relief to establish a “sufficient cause” for their non-appearance on the fixed date. If the party fails to demonstrate a valid and legitimate reason for their absence, the court may proceed with the ex-parte proceedings.

New Bank of India v. M/S. Marvels (India) (2001): This case reiterates the importance of presenting a “sufficient cause” for non-appearance. If the appellant is unable to provide a compelling reason and is found negligent in presenting their case, the court may not set aside the ex-parte decree. This underscores the need for the defendant to act diligently in asserting their rights.

Parimal v. Veena @ Bharti (2011): In this case, the Supreme Court clarified that “sufficient cause” means that the defendant did not act negligently and genuinely intended to be present when the case was scheduled for a hearing. The defendant is expected to use their best efforts to be present in court. This judgment reinforces the idea that setting aside an ex-parte order is contingent on the defendant’s diligence and good faith.

Timeliness

The application to set aside the ex-parte order must be filed within the prescribed time limit. As per the CPC, there is no specific time limit mentioned, but it is advisable to file the application as soon as possible after becoming aware of the ex-parte order.

Supporting Evidence

The applicant should provide supporting evidence to substantiate their claim. For example, if the ground for setting aside the order is improper service of summons, the applicant may need to provide proof that the summons was not served correctly. If the ground is sufficient cause, relevant documents or affidavits supporting the cause should be included.

Affidavit and Counter-Affidavit

Both parties involved in the dispute usually file affidavits that outline their respective positions. The applicant (the party seeking to set aside the ex-parte order) provides an affidavit explaining the grounds for setting aside the order, while the other party (the respondent) can file a counter-affidavit contesting the claims made in the application.

Hearing to Set Aside Ex Parte Order

The court will schedule a hearing to consider the application. During the hearing, both parties can present their arguments and evidence. The court will assess the validity of the grounds presented by the applicant and may inquire into the circumstances that led to the ex-parte order.

Discretion of the Court

The court has the discretion to decide whether the grounds presented are sufficient and whether the ex-parte order should be set aside. The court may also impose conditions and terms, including costs and other factors when setting aside the order.

Fresh Date for Hearing

If the court is satisfied with the applicant’s grounds, it will set aside the ex-parte order and schedule a fresh date for the matter to be heard. This provides both parties with an opportunity to present their cases and participate in the legal proceedings.

It’s important to note that the specific procedures and timelines for setting aside an ex-parte order may vary based on the facts of the case, the court’s discretion and applicable laws. Therefore, it is advisable to consult with a legal expert or attorney who is familiar with the relevant legal processes and practices in the jurisdiction where the case is being heard.

Setting Aside of an ex-parte Order and Order IX Rule 13

Order IX Rule 13 of the Civil Procedure Code in India provides a legal mechanism for an aggrieved defendant to seek the setting aside of an ex-parte decree, which is a decree issued in favor of the plaintiff due to the defendant’s non-appearance in the proceedings. Here are the key points and provisions outlined in your explanation:

• Request for Reversal of Ex-parte Decree: Under Order IX Rule 13 CPC, a defendant who has been subject to an ex-parte decree in a legal proceeding has the opportunity to apply to the court that issued the decree for its reversal. The defendant must present compelling reasons for their absence in court.
• Grounds for Reversal: The defendant can seek the reversal of the ex-parte decree by demonstrating to the court that either the summons were not properly served or that they were prevented from appearing in court due to a valid and sufficient reason. If the court is satisfied with these reasons, it can pass an order rescinding the judgment against the defendant. The court may also impose conditions as it deems appropriate, which could include terms related to costs, payments to the court or other factors.
• Setting a Date for Hearing: After rescinding the ex-parte decree, the court will establish a new date for the matter to be heard. This allows both parties to present their case and participate in the legal proceedings.
• Provisions Regarding Other Defendants: The first proviso to Order IX Rule 13 of the CPC states that in certain situations, the litigation may be dismissed as to all or some of the other defendants, but it may not be dismissed as against a particular defendant.
• Proviso on Summons Irregularity: The second proviso to Order IX Rule 13 deals with cases where the defendant was given proper notice of the hearing date and had sufficient time to appear and contest the plaintiff’s claim. In such situations, if the defendant files a request to set aside an ex-parte order based solely on an irregularity in summons service, the court may not reverse the ex-parte decree.
• Restriction on Appeals: The provision also includes a restriction that states that no appeal shall be allowed under this rule to set aside the ex-parte decree if an appeal against the ex-parte decree filed pursuant to this rule has been dismissed for any reason other than the appellant’s voluntary withdrawal of the appeal.

These provisions under Order IX Rule 13 CPC are designed to ensure that defendants have the opportunity to seek relief and set aside ex-parte decrees if they can provide valid reasons for their non-appearance in court or irregularities in the legal process. It is a crucial legal safeguard to maintain fairness and due process in civil litigation.

Conclusion

Setting aside an ex-parte order is a legal remedy provided under the Civil Procedure Code in India to rectify situations where a party has been adversely affected by an order issued without their presence. To succeed in setting aside such an order, the defendant must establish valid grounds, either by demonstrating inadequate service of summons or presenting a “sufficient cause” for their non-appearance.

Courts evaluate each case individually, focusing on fairness and due process. The defendant’s diligence, good faith and intent to participate are crucial factors. Proper service of summons is essential and when it is not duly served, it can provide strong grounds for challenging the ex-parte order. The process aims to balance the interests of justice and the rights of both parties.