Ex Parte / Ex Parte /

Ex parte means 'from one side' — it describes a judicial proceeding or order made upon the application of one party only, without the other party being notified or given an opportunity to be heard. An ex parte order bypasses the foundational principle of natural justice (audi alteram partem — hear both sides) and is permitted only in exceptional circumstances: where giving notice would defeat the purpose of the relief sought, where urgency makes prior notice impossible, or where the defendant has been duly served but has failed to appear despite notice.

Ex parte proceedings arise in two distinct situations in Indian civil law. The first is the emergency or urgent situation — where a party seeks an ad interim injunction to prevent immediate irreparable harm (such as destruction of property, disposal of assets, or a damaging publication) and prior notice to the other side would frustrate the relief. Courts may pass an ex parte order in such cases but must fix a date for the other side to be heard at the earliest opportunity. The second is default — where the defendant has been duly served but fails to appear on the date of hearing, allowing the court to proceed ex parte and hear the matter in their absence.

Ex parte orders in injunction proceedings require special care. The court must be satisfied that: (1) there is a strong prima facie case; (2) the balance of convenience favours the applicant; (3) irreparable harm would result if notice were given before the order; and (4) the order is limited in time and fixes an early return date for the other side to be heard. An ex parte injunction that does not fix an early return date is procedurally defective and may be set aside by the appellate court.

The obligation of full and frank disclosure in ex parte applications is a significant and often under-appreciated rule. An applicant who obtains an ex parte order by concealing facts that would have been material to the court's decision — even if those facts relate to the applicant's own conduct — risks having the order set aside as a matter of course, as a sanction for breach of the duty of candour. This principle applies with full force in Commercial Court proceedings and before the High Courts.

Setting aside an ex parte decree (Order IX Rule 13 CPC) requires the absent party to show 'sufficient cause' for non-appearance. Courts have held that 'sufficient cause' must be examined liberally in order not to deprive a party of a hearing on merits — the doors of the court should not be closed against a party on mere procedural default. However, a long, unexplained delay in applying to set aside the decree, or evidence that the defendant wilfully avoided service, can defeat the application.