Ex Parte

What is Ex Parte?

**Ex parte** is a Latin term meaning **"from one side"** or **"by one party."** In legal proceedings, an ex parte action is one taken by or on behalf of **one party only**, without the other party being present or having been given adequate notice. An ex parte order or decree is passed by the court after hearing only one side because the other party failed to appear despite being served with notice.

In simple terms, if you file a case and the other party does not show up in court despite receiving notice, the court may proceed without them and pass a judgment based only on your side of the story. That judgment is called an ex parte decree.

Legal Definition and Framework

Ex parte proceedings are governed primarily by the **Code of Civil Procedure, 1908 (CPC)** and various provisions of the **Code of Criminal Procedure, 1973 (CrPC)**.

Key Legal Provisions

- **Order IX Rule 6 CPC:** If the defendant has been duly served with summons but fails to appear on the date of hearing, the court may proceed **ex parte** — hearing the case and evidence of the plaintiff alone.

- **Order IX Rule 13 CPC:** The defendant against whom an ex parte decree has been passed may apply to the court to **set aside the decree**, provided they satisfy the court that:

1. The summons was **not duly served**, or

2. They were prevented by **sufficient cause** from appearing when the case was called for hearing.

- **Order XXXIX Rules 1 and 2 CPC:** The court may grant a **temporary injunction ex parte** (without notice to the other party) in urgent cases where delay would cause irreparable harm.

- **Order XXXIX Rule 3 CPC:** Before granting an ex parte injunction, the court must record its reasons for dispensing with notice to the other party.

- **Section 96(2) CPC:** No appeal lies from an ex parte decree passed against the defendant. The defendant's remedy is to apply to set aside the decree under Order IX Rule 13.

- **Section 151 CPC:** The inherent powers of the court may also be invoked in connection with ex parte proceedings.

In Criminal Proceedings

- **Section 299 CrPC (Section 336 BNSS):** If an accused person has absconded and there is no immediate prospect of arresting them, the court may record the **evidence of witnesses** in the absence of the accused. This evidence can be used if the accused is later apprehended and tried.

- **Order of maintenance under Section 125 CrPC:** If the respondent fails to appear despite service, the Magistrate may pass an **ex parte order** for maintenance.

When Does This Term Matter?

Ex Parte Decrees in Civil Cases

An ex parte decree is a serious matter because it determines the rights of a party who was absent. It can result in the transfer of property, payment of money, or grant of injunctions — all without the defendant having presented their case. Courts pass ex parte decrees only after satisfying themselves that the defendant was properly served.

The Supreme Court in **Sangram Singh v. Election Tribunal, Kotah (1955) 2 SCR 1** observed that while ex parte proceedings are a necessary feature of the judicial system (to prevent deliberate delays), courts must ensure procedural fairness.

Setting Aside Ex Parte Decrees

The most common remedy for a party against whom an ex parte decree has been passed is to file an application under **Order IX Rule 13 CPC**. The applicant must show either:

1. **Defective service:** The summons was not duly served — for example, it was served at the wrong address, not served personally when required, or served on someone who was not authorised to receive it.

2. **Sufficient cause for non-appearance:** The defendant had a genuine reason for not attending — such as illness, accident, non-receipt of summons due to displacement, or other circumstances beyond their control.

The Supreme Court in **Parimal v. Veena (2011) 3 SCC 545** held that courts should be liberal in setting aside ex parte decrees when the defendant shows sufficient cause, because the goal of the justice system is to decide cases on merits rather than on procedural defaults.

Ex Parte Injunctions

Ex parte injunctions are granted in **urgent and extraordinary circumstances** where giving notice to the other party would defeat the very purpose of the order. Common scenarios include:

- Preventing the **demolition of a building** that is about to be illegally demolished.

- Stopping the **sale or transfer of property** that is the subject of litigation.

- Preventing the **publication of defamatory material** or violation of intellectual property.

- Restraining a party from **leaving the country** with disputed assets.

However, courts exercise extreme caution with ex parte injunctions. The Supreme Court in **Morgan Stanley Mutual Fund v. Kartick Das (1994) 4 SCC 225** held that ex parte injunctions should be granted only in exceptional circumstances and for the shortest possible duration.

Ex Parte Proceedings in Matrimonial Cases

Matrimonial cases frequently involve ex parte proceedings. If a spouse files for divorce and the other spouse does not appear despite service, the court may proceed ex parte. The Family Courts Act, 1984 and the Hindu Marriage Act, 1955 allow courts to pass ex parte decrees of divorce, maintenance, and custody.

Practical Significance

- **Risk of default judgment:** Any party who fails to appear in court risks an ex parte order that may significantly affect their rights. Proper attention to court notices is essential.

- **No appeal against ex parte decree:** Under Section 96(2) CPC, no appeal lies against an ex parte decree. The remedy is to apply under Order IX Rule 13 to set it aside, or to file a review petition.

- **Time limit for setting aside:** While Order IX Rule 13 does not prescribe a specific limitation period, the **Limitation Act, 1963** (Article 123) provides **30 days** from the date of the decree to apply for setting it aside.

- **Court must record reasons:** For ex parte injunctions, the court must record specific reasons why notice was dispensed with (Order XXXIX Rule 3 CPC).

- **Returnable date:** When an ex parte injunction is granted, the court typically fixes a **returnable date** (usually within 2-4 weeks) on which the other party can appear and contest.

Frequently Asked Questions

Can an ex parte decree be set aside?

Yes. Under **Order IX Rule 13 CPC**, a defendant against whom an ex parte decree has been passed can apply to the court to set it aside. The application must show either that the summons was not duly served or that the defendant had sufficient cause for not appearing. If the court is satisfied, it will set aside the ex parte decree and rehear the case from the appropriate stage.

What happens if both parties are absent?

Under **Order IX Rule 3 CPC**, if neither party appears when the suit is called for hearing, the court may **dismiss the suit**. If the plaintiff later appears and can show sufficient cause for their absence, they can apply for restoration of the suit. The simultaneous absence of both parties does not result in an ex parte decree — it results in dismissal.

How long does the other party have to challenge an ex parte order?

For ex parte decrees in civil cases, the Limitation Act prescribes a period of **30 days** from the date of the decree (Article 123) to file an application under Order IX Rule 13 CPC. For ex parte injunctions, the other party can contest the injunction on the next date of hearing (the returnable date). Missing the limitation period can make the decree final, though courts may condone delay if sufficient cause is shown.

Is an ex parte order the same as a default judgment?

The concepts are substantially similar. Both refer to a judgment or order passed against a party who fails to appear. "Ex parte" is the term commonly used in Indian legal practice, while "default judgment" is the equivalent term in American and some other legal systems. The legal consequences are the same — the absent party has the right to seek setting aside of the order.