When can Court grant Ex Parte order?

By Ashutosh Vinay

Published on: December 25, 2023 at 00:01 IST

In a game of two teams, sometimes the referee has to make a quick decision without hearing the explanation from the both sides. This is similar to the term we know as ‘Ex parte’ in court, this is a legal order which the Court makes without having to hear from a party involved in the suit.

In this article we will explore the concept of ‘Ex parte’ how and when the court grants this order. We will also look at some essential points when it comes to an ‘Ex parte’ order and how they ensure speedy and just reasons.

What is an Ex Parte Order?

An Ex parte order is the order which is issued without the other party having a knowledge of that. In short if one of the parties need an emergency relief and there is no time to issue a hearing notice to the other party, the court grants that relief in the form of an ‘Ex parte’ order. It asks for a court to order a relief before the other party’s request has been heard. Let’s look at some examples to understand it better:

In a civil property dispute case, an ‘Ex parte’ order prevents the other party from wrecking anything present on the property.

Under Order IX Rule 6, Procedure when only plaintiff appears is mentioned stating that,

(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-

(a) When summons duly served- if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte.

This rule talks about the procedures to follow when only the plaintiff appears to the hearing,

Rule 6(1)(a) talks about if the summon was duly served and the defendant is not present during the hearing the court can make an order to the suit as an ex parte.

When can a party get an Ex Parte order?

If a party fails to appear on the designated date, the court issues summons and notices to compel attendance. In civil suits, if the plaintiff is present, but the defendant is absent, and summons are issued, the Court may proceed against the absent defendant and pass an ex-parte decree.

The court is authorized to do so under Order 9 Rule 6 of the CPC. This rule states that if the defendant, despite being served summons, fails to appear, the court can issue an ex-parte decree. However, if the summons is not properly served, the court will issue another summons to the defendant. If improper service is due to the plaintiff’s negligence, the court may require the plaintiff to bear the cost of adjournment.

An ex-parte decree is issued when the defendant is absent during the court proceedings. In adherence to the principles of natural justice, cases should ideally be resolved in the presence of both parties, affording them a fair chance to present their arguments.

However, there are situations in which a court may grant an ex-parte decree. This occurs when the plaintiff is present, but the defendant fails to appear despite being duly served with a summons for appearance. In such instances, the court may proceed to hear the case ex parte and issue a decree against the absent defendant.

It’s crucial to note that these decrees are not inherently null, void, or inoperative. Instead, they are considered voidable, meaning they remain valid and enforceable unless legally annulled on valid grounds. Until annulled, an ex-parte decree retains the force and legitimacy of a decree obtained with the presence of both parties.

While the general rule requires a judge to engage with all involved parties, exceptions exist. For instance, circumstances may permit a judge to interact with only one side, such as when a plaintiff seeks an order or dismissal before the defendant files an answer or makes an appearance.

If the plaintiff needs an instant relief and the defendant party is not responding despite the repeated hearing notice, the court can pass an ex parte order for the Plaintiff without having the need to listen to the other party. Let’s get to know about this more with an example:

In a domestic violence case, the court can pass an ex parte order to the other party restricting its contact with the victim.

In a divorce case, before the decision for the custody of the child. The court can pass an ex parte to whoever is currently having the child to stay within a specific territory and not to leave it until the subject matter is decided.

Grounds

These orders are typically issued in emergency situations where immediate action is deemed necessary and waiting for a full hearing with all parties present would cause irreparable harm. The grounds for obtaining an ex parte order can include following:

1. Emergency Situations: Ex parte orders are often granted in situations where there is an urgent need for court intervention, such as cases involving immediate threats to personal safety, health, or well-being. For example, obtaining a restraining order in cases of domestic violence.
2. Risk of Irreparable Harm: The party seeking the ex parte order must demonstrate that waiting for a regular hearing would result in irreparable harm. This could include situations where delay might cause financial loss, damage to property, or other harm that cannot be adequately compensated through standard legal remedies.
3. Risk of Evidence Tampering: If there is a concern that evidence may be destroyed, altered, or concealed if notice is given to the other party, a court may grant an ex parte order to preserve the status quo until a full hearing can be held.
4. Asset Preservation: In cases where there is a risk of dissipation of assets or attempts to hide financial resources, a court may grant an ex parte order to freeze assets temporarily.
5. Child Custody Emergencies: In cases involving child custody, an ex parte order may be granted when there is an immediate threat to the safety or well-being of a child.
6. Prevention of Harassment or Stalking: Ex parte orders are commonly sought in cases of harassment, stalking, or other situations where immediate protection is necessary.
7. Preventing Spoliation of Evidence: If there is a concern that one party might destroy or alter relevant evidence, a court may issue an ex parte order to preserve the evidence.
8. Urgent Need for a Temporary Injunction: When a party seeks a temporary injunction to prevent certain actions pending a full hearing, and the delay could result in harm, an ex parte order may be considered.

In the case of M Krishnappa v. Mensamma (2020), the Karnataka High Court clarified that if defendants attend but do not argue the case, it still qualifies as an ex-parte situation, allowing defendants to file a petition under Order 9 Rule 13 of the CPC.

In Bhanu Kumar Jain v. Archana Kumar & Anr (2004), the Supreme Court affirmed that defendants can assert reasonable grounds for non-attendance, except to challenge the authenticity of an order scheduling the matter for an ex-parte hearing.

In the Textile Association (India) v. Balmohan Gopal Kurup and Another (1990) case, an ex-parte decree obtained against joint tenants was deemed binding on all of them, even if not all were parties to the suit.

What are the essential elements of an Ex Parte order?

The essential elements of an ex parte order are as follows:

• There must be a suit filed between two parties on a subject matter or a question of law.
• The court should have sent multiple summons for the hearing to the other party.
• There should be a need of an instant relief.
• The relief sought should be under the jurisdiction of the court.

For example: A and B are in a dispute of a land which has a two-story building built on it and A lives in it for the time being, A can request court to pass an ex parte for preventing B from demolishing the building until the subject matter has been decided. If B is not responding to the repeated summon notice, the court can pass an ex parte order for the relief.

The Effect of Ex Parte order

The effect of the Ex parte order are as follows:

• The plaintiff has been provided with the relief of that instantaneous issue.
• The defendant will get to know about the seriousness of the subject of issue in the court.
• Furthermore, ignorance of the other party can also result in the suit being dismissed against their favour.

Setting aside an ex-parte decree under Order 9 Rule 13 CPC

Order 9 Rule 13 provides a remedy for a defendant to apply to set aside an ex-parte decree resulting from their non-appearance in a civil suit. The court will only set aside the decree when the defendant presents a satisfactory reason or if the summons was not served correctly.

Summons not duly served: If the summons is not served correctly—due to factors such as an incorrect or changed postal address or the plaintiff’s failure to pay fees—the court may set aside the ex-parte decree.

In Sushil Kumar Sabharwal v. Gurpreet Singh and Ors (2002), the Court acknowledged that the summons was not duly served to the defendant, and the defendant lacked adequate time to be present in court.

In Gauhati University v. Shri Niharlal Bhattacharjee(1995), the Supreme Court held that when the summons was not served properly, the limitation period begins when the appellant becomes aware of the ex-parte decree.

Sufficient cause

The court will set aside an ex-parte decree when it finds sufficient grounds for the defendant’s non-appearance. ‘Sufficient cause’ is not strictly defined, and the court interprets it case by case. The defendant bears the burden of proving sufficient cause for non-appearance.

In G.P. Srivastava v. Shri R.K. Raizada & Ors. (2000), the Court stated that if the party fails to demonstrate a ‘sufficient cause’ for non-appearance, ex-parte proceedings will be initiated.

In New Bank of India v. M/S. Marvels (India) (2001), the court could not set aside the decree when the appellant was found negligent and unable to present sufficient cause.

In Parimal v. Veena @ Bharti (2011), the Supreme Court clarified that ‘sufficient cause’ implies the defendant acted diligently, genuinely wanted to be present during the hearing, and made reasonable efforts to do so.

Remedies against ex-parte decree: Once the defendant presents sufficient cause, the court can set aside the ex-parte decree. The civil code provides several remedies for defendants seeking to overturn a decree:

1. Application to set aside the ex-parte decree under Order 9 Rule 13.
2. Appeal against the decree under Section 96(2).
3. File a revision under Section 115.
4. Apply for review under Order 47 Rule 1.
5. File a suit on the ground of fraud by the plaintiff.

Conclusion

In conclusion, Ex parte order represents as a powerful tool in the legal field, which helps in swift and decisive action in some exceptional cases. In this article we got to know about when can courts issue an ex parte, shows how balanced it is and not favouring one or the other parties.

The cases discussed above shows the point of view of the judiciary itself regarding the concept of ex parte. while it plays a crucial role in preventing from irreversible harm. It also requires thorough. The judiciary consistently emphasizes that such orders should be a rare exception, invoked only when there is a compelling need for immediate action and all efforts to provide notice and hearing have been exhausted. In navigating this complex terrain, the courts remain entrusted with the responsibility of striking the right balance, ensuring that the sword of ex parte relief, while sharp, is wielded with precision and tempered by the principles that form the bedrock of a just and equitable legal system.