Setting aside of Exparte order
Ria
(Querist) 11 August 2009
This query is : Resolved
My Divorce case had been transferred to the fast track court in March after it was pending in the family court for 5 years. However after transfer of the Divorce petition the Respondent did not appear in the court for consecutive 5 times, therefore a notice was sent by the fast track court informing the defendant husband about the transfer of case and subsequent date for appearance.
However even after receiving the notice my husband did not turn up in the court for more than 4 hearings. As a result the judge on 4th June 2009 passed an ex-parte order, but on the date I was to receive the order that is 10th August 2009, (Please note that the the limitation period of 30 days is over) my husband suddenly appeared in the court at the last moment and submitted an application for setting aside the ex-parte order citing that the courts passing of exparte decree was an oversight as my husband did not know about the transfer of the case to the fast track court., which he is lying as the there is a copy his acceptance of the notice sent by the hon’ble court.
I have filed my say and have requested to dismiss the application for setting aside the exparte order on the following ground which is true:
1) Failure to cross examine me for a period of 4 years, even though I was always prepared for my cross examination (Iam appearing party in person). However my husband in the application to set aside the ex parte decree has stated that he wants to cross examine me now, which I feel is a delay tactics on the part of my husband
2) Non – appearance even after receipt of the notice of transfer of case to the fast track court
3) Default in payment of maintenance for one year (I have already filed a recovery petition for the same.
Please advice if based on the above grounds can I object the setting aside of ex-parte decree and object to my cross examination after 4 years ?
Regards,
Ria
Ria
(Querist) 11 August 2009
Please reply.
Ria
(Querist) 12 August 2009
Respected Experts I would request you to please give me your valuable opinion on the above matter.
R.R. KRISHNAA
(Expert) 13 August 2009
Your defence for the application seems legally correct. But I would like to say the practical legal implications that is being followed nowadays.
Nowadays courts normally allow the application for setting aside the exparte order because courts feel that by allowing it, the matter can be decided on merits(properly contesting between both parties) rather being finalised as an ex parte order. In fact there are various supreme court and high court judgments to say that courts should normally allow such set aside applications to decide the dispute between the parties and pass order on merits. In fact even with a delay of more than many years are being allowed to decide the dispute between the parties in merits.
Though I fully agree with you and with Expert Mr. Prabhakar, I would tell you frankly that the court will generally allow such application (on payment of some costs)to decide the dispute between the parties and pass orders on merits.
Kamal Grover
(Expert) 16 August 2009
Generally court allow the exparte set aside to provide an opportunity and to decide the matter on merit. But you can also demand following;
1) High cost for non appearnace which will be given to you only.
2) Pay full pending maintenance amount.
3) Bound the husband for pleading.
Your further clarification is welcome at nominal fee at;
adv.kamal.grover@gmail.com
Advocate
M:09814110005
PB. & HRY. HIGH COURT CHANDIGARH (INDIA)
With Regards
