Exparte order
shujauddin
(Querist) 17 October 2012
This query is : Resolved
dear sir,an exparte order passed against me in previous date and i do not want to set a side such order, so can i appear without filing the application u/o 9 r 7 cpc in the further proceedings? The court is forcing me to file such application for appearing in the further proceedings also. please advise.
Devajyoti Barman
(Expert) 17 October 2012
Is it fixed for ex parte hearing or the court has already passed final order ex parte.
In the second case you have to set aside first to contest the case on merit.
In the first instance unless you file petition under 9 rule 7 cpc, you would be granted opportunity to say anything in the case.
Adv.R.P.Chugh
(Expert) 17 October 2012
As opposed to common understanding when a matter is proceeded ex parte, the defendant still gets a right to cross examine plaintiff's witnesses, though cannot lead evidence of his own. It is entirely your prerogative to make the application. If you don't you still get to cross examine P's witnesses.
R.K Nanda
(Expert) 17 October 2012
court is right and u will have to file said application to set aside exparte order passed
against u.
ajay sethi
(Expert) 17 October 2012
what are the wordings of exparte order? it is better to make application for setting aise exparte order.
shujauddin
(Querist) 18 October 2012
thanks to all the experts but sir such order is passed in the stage when the case was fixed for framing the issues and case is still pending on the same stage,in this way no damage occurred to me by such exparte order. only i would like to know that in absence of such applictn exparte order binds upon me only for the proceeding of the date when i not appeared or for ever in all the further proceedings in the case? what law says? plz hlp.
Tajobsindia
(Expert) 20 October 2012
Law is well settled in asked query ref.: Arjun Singh Vs. Mohindra Kumar & Ors [1964 AIR 993, 1964 SCR (5) 946]
1. An application under R7 CPC is required to be made only it the defendant wishes the proceedings to be relegated back and re-open the proceedings from the date wherefrom they became ex parte so an to convert the ex parte hearings into bi-parte.
2. While power of putting the defendant on terms under R7 CPC the Court cannot pass an order which would have the effect of placing the defendant in a situation more worse off than what he would have been if he had not applied under R7 CPC.
3. So also the conditions for taking benefit of the order should not be such as would have the effect of decreeing the suit itself. Similarly, the Court may not in the garb of exercising power of placing upon terms make an order which probably the Court may not have made in the suit itself. As pointed out in the case of Arjun Singh (supra), the purpose of R7 CPC in its essence is to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong the litigation.
It is not correct to say no damage occured to me at framing of issues stage!
