Setting aside ex-parte order
Balaji Bakthavathsal
(Querist) 05 November 2014
This query is : Resolved
Dear Learned Lawyers,
A civil suit was filed in the lower court on 29-09-2010. Since the respondents did not appear, they have been declared as ex-parte to the suit and an order to that effect was issued on 01.03.2011. After more than three years, while the ex-parte order is dated 01.03.2011, one of the respondent files an I.A, with a prayer to set aside the ex-parte order on 07.04.2014 and the court too admitted the petition. I filed a counter reply to the I.A. and ultimately the IA got dismissed is a different story. The respondent again applied for a revision petition which also got rejected by the lower court. Now, the respondent has filed a CRP in the Honourable High Court with a prayer to stall the proceeding at the lower court until his revision petition is heard. When I received the notice, I approached reputed lawyers and they fired me left and right asking me
i) Why an ex-parte decree was not obtained to which I could not answer as I am not the lawyer but only a client who depended on the lawyer.
ii) How the I.A. petition was allowed by the court while the respondent is coming up and opening the matter after a lapse of three years.
Now all that I want to know from you learned Advocates are :
a) Whether the court will pass the decree on the ex-parte order on its own automatically or the petitioner’s advocate should ask for it ?
b) Is it not the duty of the court to see the merit of the case before accepting the petition ?
c) Who is responsible for the miserable situation and what is the solution for it ?
d) In the same way of functioning of the lower court, the High Court also accepted the CRP petition and numbered without ensuring the merit of the case ?
e) Doesn’t this kind of functioning of the courts increase the number of pending cases which are not at all fit to be considered ?
Can you please come up with your valuable views/suggestions/solutions.
Thanks & Regards
Balaji
Devajyoti Barman
(Expert) 05 November 2014
1. Decree is drawn up by court suo motu after passing of final judgment. Even if the same is not drawn up, it does not make any difference as far as ex-parte order is concerned.
2.IP can be filed with a petition for condonation of delay u/s 5 of the Limitations Act. Court has made no irregularity in accepting it.
3. No one is responsible. The defendant is exercising its legal right by filing Revision and no one can stop him from doing this.
4. HC has done the right thing as it is in this matter is admitted. However final order is yet to be passed after hearing you.
5. There is no illegality in functioning of court and dispensation of justice is more important which is done by giving opportunity to both party than shutting out the case at the very threshold.
Balaji Bakthavathsal
(Querist) 05 November 2014
Thank you very much Barman Sir, My sincere thanks to you for the prompt reply. I am too aware and fully agree that everyone has gor right and should be given fair opportunity to appeal/revise if supported by genuine cause. In this case,the respondent has not not given any explanation for his absence and simply filed a single line statement with the prayer that the ex-parte order shoud be srt aside as otherwise he would be prejudiced. That's all No more or no less. Well, I have another query : When the CRP just being submitted in the High Court, can the lower court continue the proceeding since NO order received from the High court to stop or can it stop the proceeding just because the CRP has been admitted ? Please clarify me. Thanks & Regards
Balaji
Devajyoti Barman
(Expert) 05 November 2014
Yes, lower can well proceed in execution proceeding to implement the decree passed ex parte.
Filing of mere Appeal or Revision does not operate as stay in lower court. It is well known to the courts.
Rajendra K Goyal
(Expert) 05 November 2014
Agree with the expert Devajyoti Barman ji.
T. Kalaiselvan, Advocate
(Expert) 08 November 2014
While agreeing to the views and opinions of expert Mr. Barman, I have nothing more to add, you have to take up the case challenging the CRP on merits of your side and weak points n the other side.
