Ex parte

What is "Ex Parte"

The Latin term ex parte translates to " Done by, for, or on the application of one party alone" in English. An "ex parte order" in India refers to a court order that is granted without the involvement or presence of one of the parties involved in the case. This means that the court makes a decision based on the request and evidence presented by one party (the petitioner), without giving the other party (the respondent) an opportunity to be heard or present their side of the case.

Ex parte orders are generally considered a last resort and are not favored by the legal system. The principle of natural justice and due process requires that both parties have an opportunity to present their case and be heard before a decision is made. In many cases, if an ex parte order is issued, the aggrieved party (the party that did not have a chance to present their side) can apply to the court to set aside or modify the order once they become aware of it.

Official Definition

black's Law Dictionary defines "ex parte" as "on one side only; by or for one party; done for, on behalf of, or on the application of, one party only." Black's continues: "A judicial proceeding, order, injunction, etc., is said to be ex parte when it is taken or granted at the instance of and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested."

Legal provisions related to it

The Supreme Court, in the case of Ramrameshwari Devi & Ors. vs. Nirmala Devi & Ors., has laid down guidelines for granting ex parte orders. They are as follows:

• Courts have to be very careful in imposing ex parte orders. If an injunction has been granted on the basis of false pleadings or forged documents (which is very often the case in India) courts must impose costs on the litigants.
• Courts should give short notice to the Defendants and hear both parties before passing ex parte interim orders since the experience has been that once granted these orders cause havoc and getting them modified is next to impossible.
• In an exceptional case where the court has to grant an ex-parte injunction it must record in the order that if the suit is dismissed the petitioner will have to pay full restitution, actual or realistic costs and mesne profits.
• If ex parte order is granted then all endeavors should be made to dispose the application for injunction as expeditiously as possible, preferably as soon as the defendant appears in court or another option available is, to limit the life of the ex parte order for a week so as to prevent any incentive of prolonging the matter on the plaintiff’s part.

Order 9 Rule 13 CPC

Order IX, Rule 13 of the Code of Civil Procedure, 1908 lays down the grounds for setting aside an ex parte decree. an ex parte decree can be set aside on the following grounds:

• Summons not duly served: If it can be proven that the summons notifying the defendant of the lawsuit was not properly served, the court may set aside the ex parte decree.

• Sufficient cause for non-appearance: If the defendant can demonstrate that they were prevented by sufficient cause from appearing in court when the suit was called out, the court may set aside the ex parte decree.

An ex-parte decree in the Indian judiciary can be set aside if the defendant was prevented by sufficient cause from appearing in court. The court has the discretion to consider sympathetic grounds and provide an opportunity to the affected party. It is crucial to file an appeal within the statutory period of limitation and present specific grounds of objection regarding the correctness of the judgment. The court will carefully evaluate the defendant’s defense before deciding whether to set aside the decree. Supreme court in the case of Vijay Singh v. Shanti Devi And Anr. [ Civil Appeal No. 2062 of 2009], quoting order 9 rule 13 observed that “Once an ex parte decree is set aside, it basically means that the parties are relegated to the same position on which they stood before the passing of the ex-parte decree.”

Order 9 Rule 6 CPC

Order 9, Rule 6, provides that, if on the day fixed in the summons for the defendant to appear, and answer, the plaintiff appears and the defendant does not appear, and it is proved that the summons was duly served in sufficient time to enable the defendant to appear and answer on the day named in the summons, the Court may proceed to try the case ex-parte. The defendant, may apply under Order IX, Rule 13, for an order to set aside the ex-parte judgment at any period between the date of the judgment and the thirtieth day from the date of the decree or where the summons was not duly served, from the date on which he has knowledge of the decree

Section 126 CrPC

Section 126 empowers the magistrate to pass an ex parte order if he or she is satisfied that the person is willfully avoiding service or neglecting to attend court. Such an order can be set aside for good cause shown within three months of the order, subject to terms, including payment of costs to the opposite party as deemed just by the Magistrate.

Remedies in case of ex-parte decree

A defendant who receives an ex parte decree has two options:

1. File an appeal.
2. File an application under Order 9 Rule 13.

Both actions can be taken at the same time. Filing under Order 9 Rule 13 doesn’t remove the right to appeal. However, if the appeal is dismissed, causing the ex parte decree to merge with the appellate court’s order, an Order 9 Rule 13 application won’t be valid. If an Order 9 Rule 13 application is dismissed, the defendant’s recourse is under Order 43 Rule 1.

Research that engages with it:

A Critical Analysis of the Delhi High Court's Approach to Ex-Parte Orders in Copyright and Trademark Cases: This paper examines the legal nuances and judicial interpretations of ex parte orders within the context of intellectual property rights enforcement by the Delhi High Court. It provides insights into the challenges and procedural aspects of ex parte applications and their implications for both plaintiffs and defendants.​

International experience:

USA

Under the fifth amendment to the U.S. Constitution, "No person shall … be deprived of life, liberty, or property, without due process of law." A bedrock feature of due process is fair notice to parties who may be affected by legal proceedings. An ex parte judicial proceeding, conducted without notice to, and outside the presence of, affected parties, would appear to violate the Constitution. Ex parte orders or decree from both federal or state courts would acutely be restricted by the fifth and fourteenth amendments.

Australia

In Australian law, "ex parte" has two meanings. The main one refers to a hearing that occurs without one or more parties present. In such cases, there's a high expectation of honesty, including disclosing all relevant facts, even those that might not favor the party making the request. Failure to provide such information typically results in any orders made being revoked. The other meaning is when "ex parte" is used in the title of a case where one party seeks prerogative relief, like a writ of prohibition, certiorari, or mandamus. For example in the case of Re Wakim; Ex parte McNally a writ of prohibition was sought by McNally, in relation to proceedings in the Federal Court that were commenced by Wakim.