How to Set Aside an Ex-Parte Order Under CPC 1908: Grounds, Procedure and Remedies
Introduction
- An ex parte order is a judicial decision made when a party, namely the defendant in the suit, fails to appear in court upon the summons or does not present themselves at any further hearings after presenting themselves at a served summons.
- These orders are common in our judicial system because defendants often fail to appear in court on many instances.
- However, a party that remains absent, whose rights are affected, also has some remedies available. In this blog, we will learn what ex parte orders are, when they are made, and what remedies exist to set them aside.
Understanding Ex Parte Orders in India
- An ex parte order is issued when the court proceeds without the defendant(s) appearing in the court proceeding(s). When a summons has been duly served, and the defendant fails to appear or does not appear before the court in any consecutive hearings, the court may pass an ex parte order, which is followed by an ex parte decree. The provision for an ex parte order is outlined under Order IX Rule 6 of the Code of Civil Procedure, 1908 (CPC). Civil courts are empowered to pass an ex parte order in any interlocutory proceedings, temporary injunctions, or suits under this provision.
- Since such orders are issued in the absence of the defendant, CPC provides provisions to set aside such ex parte orders. It is done so that the principle of natural justice is not hampered, and no party suffers. The fundamental principle of the judiciary is audi alteram partem, which means no one should be condemned unheard. The primary provisions for setting aside ex parte orders are mentioned under Order IX, Rule 13 for ex parte decrees and Order IX, Rule 7 for ex parte orders where the ex parte proceedings have been initiated but a final order has not been passed, of the CPC.
Grounds for Setting Aside an Ex Parte Order
- Non-Service of Summons: As outlined under Order IX, Rule 13 of the Code of Civil Procedure, 1908, if the summons was not duly served on the defendant as prescribed under Order V of the Code, which prevented the defendant from appearing, the order may be set aside.
- Sufficient Cause for Non-Appearance: The other provision under Order IX, Rule 13 of the Code provides that the order may be set aside if the defendant demonstrates a legitimate reason for their absence. If there were unavoidable circumstances and adequate cause for such non-appearance, which resulted in an ex parte order, the court may set aside such an order. Here, both terms should have genuine justification despite being interpreted liberally.
Step-by-Step Procedure to Set Aside an Ex Parte Order
- Obtain a Certified Copy: When you learn about the Ex Parte Order, obtain a certified copy from the court and check its terms, date, and reason. It should be seen on what grounds an ex parte is issued. Act promptly to avoid dismissal on the grounds of delay and obtain the relief you want.
- Gather Evidence: Now, the step asks for the collection of evidence to support the petition, which includes:
- Proof of Non-Service: Substantial evidence, such as incorrect addresses or a failure to acknowledge, or non-compliance under Order V of the CPC, must be presented to demonstrate how improper service occurred.
- Evidence of Sufficient Cause: This includes proof that will unequivocally demonstrate the reason for absence. It could contain travel logs, medical certifications, or anything else that clarifies and justifies your absence.
- File a Petition: This step includes drafting and applying to set aside the ex parte order in the same court that issued it. The petition should consist of:
- Title and Case Details: The case name, number, and court information.
- Grounds for Relief: The petition must include a clear statement explaining why the ex parte order should be set aside. Reasons shall be specified, such as non-service, sufficient cause, or other grounds, as applicable.
- Affidavit: A sworn statement with the facts, such as reasons for non-appearance or evidence of undue service.
- Prayer: A request to set aside the order and restore the case for hearing on the merits.
- Supporting Documents: Ensure that you attach evidence and relevant citations.
- Important Note: For setting aside ex parte decrees, make a filing under Order IX, Rule 13. If it is delayed, then accompany it with an application for condonation of delay under section 5, Limitation Act, 1963. The court will issue the notice to the contesting party. Then the court will take further steps to see if, indeed, the facts prevail as mentioned by the defendant or the party. Then, if the opposing party raises any objection, it shall be addressed. The court will evaluate whether the party has had sufficient cause or other valid grounds. Setting aside an ex parte order can be a little challenging, particularly if it is believed that the original order was justified. Courts may be cautious in cases involving interim injunctions or family matters, requiring strong evidence to set aside the order. Additionally, the petitioner bears the burden of proving sufficient cause or non-service; moreover, delays can weaken the case.
Conclusion
Setting aside an ex parte order in the Code of Civil Procedure becomes an important legal remedy as it upholds the principles of natural justice. Parties can successfully contest such orders if they have a thorough understanding of the grounds, follow the correct procedures, and make a strong argument. The keys to completing this process successfully are taking timely action, maintaining comprehensive documentation, and seeking expert legal assistance. If you are facing an ex parte order, act promptly, consult an expert, and take the necessary steps to protect your rights. For legal assistance, contact us.
