Ex Parte Order / Ex Parte /

Ex Parte Order: One Party’s Version of the Facts

An ex parte order is a necessary expedient in the legal system — where a party who has been properly notified refuses to appear, the court cannot be held hostage by that refusal. However, an ex parte order carries inherent risk: the court has heard only one side. The law therefore provides mechanisms to set aside ex parte orders when the absent party can show good reason for their absence and potential prejudice from the order.

Ex Parte Decree: Setting Aside under Order IX Rule 13

A defendant against whom an ex parte decree has been passed may apply to set it aside within 30 days of the decree (or such further time as the court allows). The court must set it aside if the defendant satisfies it that: (a) the summons were not duly served; or (b) they were prevented by sufficient cause from appearing when the suit was called on. If the court sets aside the ex parte decree, the suit is restored and proceeds from the stage at which the defendant failed to appear.

Ex Parte Injunctions

Courts may grant injunctions ex parte (without notice to the defendant) in urgent cases where giving notice would defeat the purpose of the injunction — for example, where the defendant is about to alienate property or destroy evidence. Order XXXIX Rule 3 CPC requires the court to record reasons for granting an injunction without notice. Ex parte injunctions must typically be confirmed at an inter partes hearing within a short time (usually the next date).

Natural Justice and Ex Parte Orders

Audi alteram partem (hear the other side) is a fundamental rule of natural justice. An ex parte order violates this principle, but is justified where: (a) the absent party has been given opportunity (by notice/summons) and has chosen not to appear; or (b) urgency makes it impossible to give notice first. Courts have held that an ex parte order not preceded by any notice (not even an attempt to notify) is void as violating natural justice.

“An ex parte decree is provisional justice — justice passed on incomplete information. The law allows it when the party is absent by choice; it ensures the door to correction remains open.”