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Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Imagine missing a court hearing due to unavoidable circumstances, only to find proceedings have gone ex parte—meaning the case proceeded without you. A pressing question arises: right to cross examine after being set ex parte. Does the court still allow you to challenge witnesses' testimonies later? This is a common concern in civil litigation under Indian law, rooted in principles of natural justice and the Code of Civil Procedure (CPC).
In this post, we'll break down the legal position, drawing from judicial precedents and statutory provisions. While courts generally uphold the right to cross-examine upon re-entering proceedings, it's not absolute. This is general information, not legal advice—consult a lawyer for your specific case.
An ex parte order occurs when one party (usually the defendant) fails to appear, allowing the plaintiff to proceed without opposition. Under Order 9 Rule 6 CPC, the court may set the absent party ex parte after sufficient opportunities. This leads to ex parte evidence recording and potentially a decree.
However, natural justice demands fairness. Courts emphasize that no one should be condemned unheard. Thus, remedies exist under Order 9 Rule 13 CPC to set aside such decrees by showing 'sufficient cause' for absence, like illness or miscommunication.
Cross-examination is a cornerstone of fair trials, testing witness credibility and exposing inconsistencies. Courts have consistently held that this right survives an ex parte order if the affected party rejoins proceedings.
The main legal finding: The right to cross-examine witnesses after an ex parte order is generally recognized to ensure natural justice. Even post-ex parte decree, parties may exercise it upon re-entry. Procedural irregularities can be rectified by setting aside decrees and allowing cross-examination. (Key points from judicial analysis)
In Naveen Khanna S/o Late Amolok Ram Khanna vs Nabashree Mudoi And Anr S/o Late Harmohon Mudoi - 2025 0 Supreme(Gau) 527, the court set aside an ex parte judgment due to irregularities, observing: the defendant had a right to participate in the proceedings and cross-examine witnesses after the ex parte decree was set aside. The trial court's denial was deemed a 'grave error.'
Once an ex parte decree is set aside, proceedings typically revive, allowing full participation. Courts don't require re-recording all evidence if witnesses are offered for cross-examination.
In Ram Kishor Meena VS Union of India - 2009 0 Supreme(Raj) 525, it was clarified: it is unnecessary to re-record evidence of a witness recorded before setting aside of ex-parte decree provided said witness is offered for cross-examination after ex-parte decree is set aside. This balances efficiency with fairness.
Similarly, Mahadev Govind Gharge VS Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka - 2011 3 Supreme 665 stressed: a party has the right to cross-examine witnesses after the ex parte decree is set aside, and the proceedings should not be deemed complete until the party has been given a fair opportunity to do so.
A notable view from Gujarat High Court (referenced in Chandraprakash Dayaramji Lanjewar VS Ratnakala Wamanrao Khatkhede - 2018 Supreme(Bom) 368): The Full Bench agrees with the view taken by Madras High Court that the evidence recorded before setting aside the ex parte decree does not become non est and when the ex parte decree is set aside, all that the other side can insist upon is the right to cross-examine the witness if he so desires.
This approach prevents evidence wastage while upholding rights. However, if permission to file a written statement accompanies setting aside, prior evidence may be wiped out, necessitating fresh recording. Chandraprakash Dayaramji Lanjewar VS Ratnakala Wamanrao Khatkhede - 2018 Supreme(Bom) 368
The right isn't unconditional. Courts impose safeguards against abuse:
Other nuances from sources:- In departmental inquiries, even post-ex parte evidence, opportunities were granted, but natural justice violations vitiated proceedings. Managing Committee Of The Pinnacle School VS Directorate Of Education And Another - 2022 Supreme(Del) 861- Vigilance is key; counsel's 'no instructions' doesn't justify delays. Malkit Singh vs Mohinder Singh - 2025 Supreme(Online)(P&H) 3323
If set ex parte:1. File under Order 9 Rule 13 CPC immediately, showing sufficient cause (e.g., medical certificates).2. Appeal if needed on merits.3. Request participation explicitly, including cross-examination.4. Act swiftly post-setting aside—courts favor merits over technicalities but penalize delays with costs. BRIJ MOHAN (DECEASED) THROUGH LRS SMT. SAROJ VS Y. P. JAUHARI - 2016 Supreme(P&H) 3040
Legal practitioners should advise: Parties should promptly seek to re-enter proceedings and exercise their right to cross-examine witnesses once an ex parte order or decree is challenged or set aside.
Cases like Gaya Prasad Tiwari VS Allahabad Development Authority - 2019 0 Supreme(All) 2127 reinforce: procedural lapses shouldn't deprive fair chances. In non-civil contexts, like criminal or departmental probes, similar principles apply, though with caveats (e.g., representation via advocates only). Rakesh Narula vs CBI - 2023 Supreme(Online)(HP) 14854
Even in execution proceedings or family matters, courts prioritize substance. S. Noorjahan VS J. Thomas Stalin - 2022 Supreme(Mad) 428 highlighted ex parte impacts but allowed appeals where evidence gaps existed.
Generally, yes—you retain the right to cross-examine after being set ex parte, provided you set aside the order and actively rejoin. Courts prioritize fair trials, as seen in Naveen Khanna S/o Late Amolok Ram Khanna vs Nabashree Mudoi And Anr S/o Late Harmohon Mudoi - 2025 0 Supreme(Gau) 527Ram Kishor Meena VS Union of India - 2009 0 Supreme(Raj) 525Mahadev Govind Gharge VS Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka - 2011 3 Supreme 665, but demand diligence.
Key takeaways:- Cross-examination is vital for natural justice.- Use Order 9 Rule 13 CPC proactively.- Avoid delays to prevent forfeiture.- Stay vigilant in representation.
For tailored guidance, reach out to a qualified lawyer. Justice delayed isn't always denied, but it's best not to test the limits.
References include select judgments like Naveen Khanna S/o Late Amolok Ram Khanna vs Nabashree Mudoi And Anr S/o Late Harmohon Mudoi - 2025 0 Supreme(Gau) 527, Ram Kishor Meena VS Union of India - 2009 0 Supreme(Raj) 525, Gaya Prasad Tiwari VS Allahabad Development Authority - 2019 0 Supreme(All) 2127, Chandraprakash Dayaramji Lanjewar VS Ratnakala Wamanrao Khatkhede - 2018 Supreme(Bom) 368, and others cited inline.
#ExParteOrder #CrossExamination #CPCLaw
Thus, the order impugned is set aside. The order fixing the suit for ex parte argument is also set aside. ... Reliance is placed on the decision of Modula India (Supra), where the limited right to cross-examine the plaintiffs witness has been upheld. Therefore, the defendant no.3 is permitted to cross-examine the plaintiff and to advance arguments on the plaint case. ... Right to cross-examine of ....
statement and therefore the defendant was given right to cross examine the plaintiff witnesses who had already been examined in ex parte proceedings. ... However, the defendant then sought a leave from the court to cross examine those plaintiff witnesses who had earlier been examined in ex parte evidence. ... This court in MP No. 306 of 2024 had set aside that order noting that once the ex parte proceedings against the defendant hav....
Ex parte trial-Notice to defendant in default-Right of defendant to cross-examine at ex parte trial-Evidence-Adjournment. ... Where a defendant takes time to answer but fails to answer on the appointed, day, the Court may fix the case for ex parte hearing. At such hearing the defendant has, under the Civil Procedure Code, no right to cross-examine the plaintiff or his witnesses. ... In my opinion the defendant ought ....
Generally speaking, the limited right that the defendant, set ex parte, would have is confined to cross examining the plaintiff’s witnesses. The effort has to be directed toward demonstrating that they are not speaking the truth and, thereby, demolish the case of the plaintiff. ... Thus, the grievances as raised by learned Senior Counsel is that the learned Trial Court has not only denied the petitioner/defendant to cross examine the opposite party witness but also refused the #HL_STAR....
When a person is set ex-parte in a suit, he loses his right to participate in the suit subject to consideration of the court to set aside the order. It is not that the Defendant No.17 still remained as a party to contest the claim of the Plaintiff from the date she was set ex-parte. ... Since Defendant No.17 was admittedly remained ex-parte she loses her right to participate in the suit. ... A party can examine any witness he so li....
examination, this Court is of the considered view, the foreclosure of the defendant's right to cross-examine the PW1 & PW2 has resulted in grave prejudice to the right of defence of the defendants/petitioners herein. ... The impugned orders in all these matters are hereby set aside. The Court below is directed to recall and reopen the plaintiffs witnesses (PW1 86 PW2) evidence and permit the petitioners/defendants to cross examine PW1 & PW2. ... On considering the sub....
The revision petitioner is directed to conclude the cross examination of PW.1 to PW.3 within a week from the date when the matter was posted for cross-examination and if the revision petitioner does not conclude cross examination due to default of the petitioner/defendant herein within a week, right ... No.2 of 2014, whereby No.184 of 2024 filed under Order IX Rule 9 of C.P.C. read with Section 151 of C.P.C. seeking to set aside the ex parte order, dated 17.04.2014 and IA No.192 of 202....
Counsel further submits that when the application for setting aside the ex parte order dated 11.11.2024 was moved on 18.12.2024, no other witness was examined by the plaintiff and the trial Court could have simply given opportunity to the petitioner to cross examine the aforesaid witness namely Mohinder ... In other words on 11.11.2024, even if counsel for the petitioner would not have pleaded no instructions, the petitioner was not in a situation to cross examine the said witness i.e. ... Mohinder Sing....
State of Sikkim, 1980 Cri LJ 789 (Sikkim) no doubt in that case it was held that the accused has got a right to cross-examine the prosecution witnesses through a counsel of his choice. ... Therefore, it was prayed that the present petition be allowed, the order passed by the learned Trial Court be set aside and permission be granted to the petitioners to cross-examine the witness through independent handwriting expert Mr. Arvind Sood. ... The petitioners wanted to cross#HL_EN....
By the Order dated 07.11.2023, the Trial Court has permitted one set of defendants to cross examine the witnesses of other set of defendants. 4. ... By the Order dated 18.10.2023, the request of the Plaintiff has been turned down whereby he had requested that if the Court grants permission to one set of defendants to cross-examine the other set of defendants, then the defendants should cross examine their witnesses....
6. On December 18, 2010, respondent No. 2 remained absent and as a result she was proceeded ex parte and the proceedings were adjourned to December 20, 2010 for recording ex parte evidence. The Inquiry Officer even after recording ex parte evidence, granted yet another opportunity to the respondent No. 2 to cross examine the witnesses of the Management. As no response was received in this regard, the Inquiry Officer continued with the inquiry proceedings and filed his report on January 29, 2011 holding the respondent No. 2 guilty of all charges.
The first defendant has not appeared before the trial Court for letting in any evidence. As he was set ex-parte, he could not cross-examine the plaintiff or the other persons and to prove his case. Hence, he wanted to conduct the case again and to live with the plaintiff.
The Full Bench agrees with the view taken by Madras High Court that the evidence recorded before setting aside the ex parte decree does not become non est and when the ex parte decree is set aside, all that the other side can insist upon is the right to cross-examine the witness if he so desires. 6. The Full Bench decision of Gujarat High Court in the case of Shah Bharatkumar Premchand v. M/s. Motilal and Bharulal, reported in AIR 1980 Gujarat 51, takes into consideration the conflicting views taken by the different High Courts on the question. The Full Bench accepts the pr....
They can only be allowed to cross-examine the plaintiff if the ex parte proceedings are set aside. So, he can be well compensated with cost due to the inconvenience caused to him as a result of the conduct of the petitioners. This fact has not been disputed that the petitioners have already been allowed by the learned trial Court to join further proceedings but the statement of the plaintiff was recorded by the learned trial Court in the absence of petitioners and they could not cross-examine him. Respondent No.1 has highlighted the conduct of the petitioners.
Meanwhile the respondent filed E.P.No.27 of 2014 for execution of the sale deed through Court. The appellants did not vigilant enough to conduct the case and the Suit was decreed ex-parte. Subsequent to set aside the ex-parte decree on payment of cost, again the ex-parte decree was passed as appellants failed to cross-examine the PW1, after taking number of adjournments. The appellants did not follow up the application to set aside the ex-parte decree and the same was not represented for more than 11 months.
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