Ex-parte Proceeding of Suit: Meaning & Consequence

When someone files a lawsuit against someone in the court of law and that person (defendant) does not appear in court despite the fact that notice is served on time; in such a condition, court proceeds with the case in his absence (ex-parte) and gives a decision in the plaintiff’s favor.

What is the Meaning of Ex-parte?

The parties to the suit are given equal opportunity to prove their case. The plaintiff shall prove the case by placing evidence in the favor of his claim. The defendant shall prove his case to disprove the claim of the plaintiff. Both parties are given an equal opportunity to participate in the suit proceedings in every way. However, if the defendant fails to appear in court to pursue the case due to his own fault, the court may proceed with the case in his absence. Such proceedings are called ex parte proceedings of the suit. And if in the ex parte proceedings, the court passes a decree in favor of the plaintiff, that decree is called an ex parte decree.

Legal Provisions for Ex-parte Proceedings

When the court is satisfied by the cogent material available on record that the summons to the defendant has been duly served and the defendant has sufficient time to appear before the court and answer the suit, However, the defendant has absented himself from court on the date of hearing stated in the summons served to him in accordance with the provisions of the Code. The court may make an order that the suit shall be heard ex parte as per the provisions of Order 9, Rule 6(1)(a) of the Code of Civil Procedure of 1908.

The provisions of the Code of Civil Procedure (1908) are reproduced here.

Rule 6: Procedure when only the plaintiff appears

Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then −

• When summons are properly served − If it is proved that the summons was duly served, the court

• When summons are not duly served − if it cannot be proved that the summons was duly served, the court shall direct a second summons to be issued and served on the defendant;

• When summons are served but not in due time − if it is proved that the summons was served on the defendant but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the court shall postpone the hearing of the suit to a future date to be fixed by the court and shall direct notice of such a date to be given to the defendant.

Effects of Ex Parte Proceedings

Once the proceedings in the civil suit have been declared ex parte by  the order of the court, unless the said order is set aside, the pleadings, documents, and evidence filed by the defendant in the  suit shall not be considered by the court in deciding the suit. And only the pleadings, documents, and evidence filed by the plaintiff will be considered in deciding the suit. A judgment is pronounced on the basis of the evidence given by the plaintiff only. And finally, an ex parte decree is granted to the plaintiff for the claim sought and proved by the plaintiff.

Remedies Against Ex Parte Proceedings

As per the provisions of Rule 7 of Order 9, in cases where the court has adjourned the suit proceedings to be heard ex parte and the defendant appears on or before the next date of hearing and gives good reason for his nonappearance on the previous date, the court may set aside the ex parte order and make an order upon such terms as to costs or otherwise and direct that the defendant be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

Setting Aside Ex Parte Decree

In any case where an ex parte decree has been passed against a defendant, he may file an application under Rule 13 of Order 9 of the Code of Civil Procedure for an order to set it aside in the same court by which the said decree was passed.

Upon such application of the defendant, the Court shall make an order setting aside the ex parte decree, on having been satisfied that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. However, the court, while passing an order setting aside the ex parte decree, may impose conditions as to costs to be paid to the plaintiff, to the court, or otherwise as it thinks fit, and shall appoint a date for proceeding with the suit. So this way, upon setting aside the ex parte decree, the proceedings of the suit are to be restored to the stage from which the ex parte proceedings were initiated.

Conclusion

From the above discussion, it is clear that the ex parte proceedings of the suit are the proceedings pursued in the absence of the defendant. The defendant is not permitted to participate in the proceedings due to his nonappearance on the earlier occasion. However, the ex parte proceedings may be set aside by assigning a good reason to the court for the previous nonappearance. The defendant's disability is lifted, and he is free to proceed with the case as usual. Nevertheless, it is the duty of both parties to be careful about the suit proceedings in a court of law; otherwise, the faulting party has to bear the loss due to losing the case in favour of the other party.

Frequently Asked Questions

Q1. Under what provisions of the civil procedure code can proceedings in a civil action be declared ex parte?

Ans: The court may make an order that the suit shall be heard ex parte as per the provisions of Order 9, Rule 6(1)(a) of the Code of Civil Procedure, 1908, if the defendant has purposefully avoided appearing in court during the suit proceedings.

Q2. What is the remedy available to the defendant in case he has been barred from participating in the proceedings of the civil suit against him?

Ans: If the defendant fails to appear before the court despite service of summons, he may be barred from participating in the proceedings of the civil suit against him as per the provisions under rule 6(1)(a) of Order 9 of the Code of Civil Procedure.

Q3. What is an ex parte decree, and under what circumstances can one be granted?

Ans: If a civil suit is decided by the court after it has been heard ex parte and a judgment is passed in favour of the plaintiff, then the decree prepared pursuant to the decision of the case is called an ex parte decree.

Q4. What provisions of the Code of Civil Procedure (1908) may be used to get the ex parte decree set aside by the defendant?

Ans: An ex parte decree may be set aside on the application filed by the defendant under rule 13 of order 9 of the Code of Civil Procedure. However, the defendant must show that there was sufficient cause for his nonappearance based on one of two grounds: (1) that the summons was not properly served or (2) that the defendant was prevented from appearing when the case was called for hearing. Once satisfied, the court must set aside the ex parte decree.