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The courts also highlight that orders refusing to set aside ex parte decrees are appealable, and parties must apply to the court that made the order, providing sufficient grounds, including proof of service or lack thereof ["DINGIHAMY v. DON BASTIAN"].
Analysis and Conclusion:
Ex parte orders can catch parties off guard, especially in sensitive matters like those under the Domestic Violence Act, 2005 (DV Act). Imagine receiving notice of an order passed in your absence due to improper service or unavoidable circumstances. What if you're the respondent in a DV case and an ex parte protection or maintenance order has been issued against you? Understanding the procedure to challenge and set aside such orders is crucial for safeguarding your rights.
A common query from those navigating family courts is: What is the procedure for filing to set aside ex parte order in DV Act? This blog post breaks down the legal process, drawing from established precedents under the Code of Civil Procedure, 1908 (CPC), and integrates insights from related cases, including those involving the DV Act. Note: This is general information and not specific legal advice. Consult a qualified lawyer for your situation.
The primary remedy to set aside an ex parte order or decree, including those in DV Act proceedings, is filing an application under Order IX, Rule 13 of the CPC. This procedural tool allows courts to nullify orders passed without your presence if you can prove sufficient cause, such as lack of proper service, non-receipt of summons, or valid reasons preventing appearance Yallawwa VS Shantavva - 1996 0 Supreme(SC) 1655.
Typically, the application must be filed within 30 days from the date of the order, as per the Limitation Act, 1961. Courts may condone delays if you demonstrate compelling reasons, ensuring substantial justice Yallawwa VS Shantavva - 1996 0 Supreme(SC) 1655BHIVCHANDRA SHANKAR MORE VS BALU GANGARAM MORE - 2019 5 Supreme 481. Ex parte orders without proper notice are often deemed nullities and readily set aside Yallawwa VS Shantavva - 1996 0 Supreme(SC) 1655HARYANA SURAJ MALTING LTD. VS PHOOL CHAND - 2018 5 Supreme 467.
Prepare a detailed application under Order IX, Rule 13 CPC in the same court that passed the ex parte order. Include:- Affidavit explaining sufficient cause for absence (e.g., The summons was not served at the correct address, leading to non-appearance Yallawwa VS Shantavva - 1996 0 Supreme(SC) 1655).- Supporting evidence like postal records or witness statements.- Prayer to set aside the order and restore the case.
File within 30 days. In DV Act cases, where urgency is key, courts prioritize procedural fairness Satish S/o Baburao Yadav VS Manisha Satish Yadav - 2022 Supreme(Bom) 776. For instance, in a DV compromise case, timely challenges are vital, as delays may indicate lack of bona fides Satish S/o Baburao Yadav VS Manisha Satish Yadav - 2022 Supreme(Bom) 776.
If delayed, file a separate condonation application under Section 5 of the Limitation Act. Courts have condoned delays for reasons like non-receipt of summons or external factors. Courts have recognized that delays can be condoned if sufficient cause is shown, such as non-receipt of summons, incorrect service, or other valid reasons Yallawwa VS Shantavva - 1996 0 Supreme(SC) 1655BHIVCHANDRA SHANKAR MORE VS BALU GANGARAM MORE - 2019 5 Supreme 481.
In exceptional scenarios, such as advocate strikes, courts intervene to prevent injustice Ramrameshwari Devi VS Nirmala Devi - 2011 4 Supreme 625. Similarly, in maintenance proceedings akin to DV matters, rejection of claims due to presumed desertion was overturned for lack of shelter evidence Zaheeda W/o Rajmohammed Chouse VS Rajmohammed S/o Gulabsab Chouse - 2018 Supreme(Kar) 892.
The court evaluates:- Service Validity: Was substituted service attempted? Improper service renders orders void Yallawwa VS Shantavva - 1996 0 Supreme(SC) 1655.- Sufficient Cause: Beyond control, like strikes or fraud HARYANA SURAJ MALTING LTD. VS PHOOL CHAND - 2018 5 Supreme 467.- Merits: No re-litigation of substantive issues unless void ab initio Yallawwa VS Shantavva - 1996 0 Supreme(SC) 1655.
When an ex parte order or decree is passed without proper service or due to circumstances like advocate strikes or other valid causes, it is considered a nullity Yallawwa VS Shantavva - 1996 0 Supreme(SC) 1655. In DRAT contexts, powers to review ex parte orders include condonation, applicable analogously MSTC Limited VS Standard Chartered Bank - 2019 Supreme(Bom) 1934.
In family law, like restitution decrees, fresh petitions may be barred if prior ones aren't restored under Order 9 Rule 9 CPC C.Raj vs E.Girija - 2025 Supreme(Mad) 2992.
DV Act proceedings often intersect with CPC. In a compromise under DV Act via Lok Adalat, strict proof of fraud is required to avoid a compromise decree, and timely challenge to the order of Lok Adalat is crucial Satish S/o Baburao Yadav VS Manisha Satish Yadav - 2022 Supreme(Bom) 776. NGT cases highlight rigid review timelines without condonation, contrasting CPC flexibility SANDEEP LATHAR VS MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGED.K.JOSHI VS UNION OF INDIA.
Maintenance revisions under CrPC Section 125 emphasize evidence of need, mirroring DV relief Zaheeda W/o Rajmohammed Chouse VS Rajmohammed S/o Gulabsab Chouse - 2018 Supreme(Kar) 892. Succession and debt recovery cases reinforce procedural powers to recall ex parte orders Vijay Nagar VS State - 2017 Supreme(Del) 4291MSTC Limited VS Standard Chartered Bank - 2019 Supreme(Bom) 1934.
Setting aside an ex parte order in DV Act cases is feasible under Order IX, Rule 13 CPC if you act swiftly and prove sufficient cause. Courts prioritize justice, condoning delays where warranted, but procrastination or weak grounds doom applications. Remember, ex parte orders without notice are procedural nullities, empowering restoration Yallawwa VS Shantavva - 1996 0 Supreme(SC) 1655.
Key Takeaways:- File under Order IX, Rule 13 CPC within 30 days.- Prove improper service or valid absence.- Condonation available for delays.- Primary remedy over appeals Karra Venkatamma VS Karra Seethaiah - Andhra Pradesh (1959).
For personalized guidance, consult a legal expert. Stay informed to protect your rights in DV proceedings.
References:1. Yallawwa VS Shantavva - 1996 0 Supreme(SC) 1655: Procedure and sufficient cause for setting aside.2. BHIVCHANDRA SHANKAR MORE VS BALU GANGARAM MORE - 2019 5 Supreme 481: Condonation and procedural vs. substantive rights.3. Ramrameshwari Devi VS Nirmala Devi - 2011 4 Supreme 625: Exceptional circumstances like strikes.4. Karra Venkatamma VS Karra Seethaiah - Andhra Pradesh (1959): Appeals as secondary.5. Satish S/o Baburao Yadav VS Manisha Satish Yadav - 2022 Supreme(Bom) 776: DV Act compromise challenges.
Last updated: Current as per cited judgments. Laws may evolve.
#DVAct #ExParteOrder #SetAsideOrder
Defendant No.1 filed the Miscellaneous Case for setting aside exparte decree under Order IX rule 13 served following the stipulated legal procedure ... He lastly submits that defendant No. 1 did not do any delay in filing the case under case by filing ... Accordingly, the exparte decree is liable to be set aside.
D.) against an exparte judgment and order dated November 24, 1970, of the learned District Judge, Srinagar. allowing the application of the respondent under section 25 of the Act and directing the appellant to hand, over custody of her three minor children namely Neera aged 9, Sanjeev aged 6, and Sameera ... For the fore-going reasons we up-hold the preliminary objection and dismiss the appeal as time barred but leave the parties to bear their own costs of this court. ... ... This will not, however, debar the appellant from pursuing her ....
The object of introducing Order XVIII Rule 4 is to save time of the court and to avoid inconvenience and hardship of the witness by prescribing that only mode of giving evidence-in-chief is by filing affidavit. ... The exparte order dated 31.08.2004 passed in Title Suit no. 02 of 1989 is hereby set aside. Consequently the suit be restored to it’s original file and number”. ... Being aggrieved by that order Respondent herein preferred aforesaid Title Appeal no. 10 of 2005 along with an application under ....
By filing this application, the Applicants seek for review of the order dated 28.11.2016 passed in O.A. No. ... No. 17/2020 avt ... 130/2020 seeking condonation of delay in filing the review application stand dismissed. 6.No order as to costs. Adarsh Kumar Goel, CP S.P. ... National Green Tribunal (Practices and Procedure) Rules, 2011. ... This review application has been taken up under Rule 22(3) of the National Green Tribunal (Practices and #HL_START....
No. 09/2020 avt ... No. 74/2020 seeking condonation of the delay in filing the review application. ... NAGIN NANDA, EXPERT MEMBER IN CHAMBER BY CIRCULATION ORDER 1. ... Rule 22 (1) of the National Green Tribunal (Practices and Procedure) Rules, 2011 prescribes the period within which an application for review ought to be filed. ... Since the delay cannot be condoned under Rule 22(1) of the National Green Tribunal (Practices and Procedure) Rules, 2011, the I.A. stands re....
4.The learned Trial Court had specifically mentioned that the dismissal of the earlier H.M.O.P ought to have been restored by filing a petition under Order 9 Rule 9 of Civil Procedure Code, instead of filing a fresh H.M.O.P, is not maintainable. ... The decree for restitution of conjugal rights was granted exparte on 5.6.2012. ... After six years, the appellant filed H.M.O.P.No.378 of 2015 for divorce on the ground that the respondent despite having obtained an exparte decree for restitution of conjuga....
After following the said procedure to the petitioner's case, respondent No.4 (Village Officer) has submitted Ext.P11 report to respondent No.2 (District EXHIBIT P7 A TRUE COPY OF ORDER NO.C.13.40110/08 DATED 24/05/2012 ISSUED BY RESPONDENT NO.2. ... Issue a Writ of mandamus or any other order or direction in the nature thereof directing Respondent ... EXHIBIT P2 A TRUE COPY OF PATTA NO.2009 DATED 16/02/2002 ISSUED BY RESPONDENT NO.3 IN LA-816/2002/AVT TO SHIES JOSE. ... EXHIBIT P3 A TRUE COPY ....
In the instant case, I am of the opinion that the order of the learned Commissioner of Requests, refusing to set aside his order and fixing the case for exparte order and making the order nisi absolute, is a final order from which an appeal lies to this Court. ... In such a case, an order refusing to set aside the decree nisi and making the decree absolute is appealable. A party affected by an exparte order of which he had no....
There shall be no order as to costs in the present appeal. ... Therefore, he would submit that there is no necessity to modify the order of the Tribunal. ... The injury that the appellant has sustained is only to his right fore arm and the same has been amount, along with accrued interest and costs as awarded by the for three days, where no surgery had been undertaken and thereafter for five days, when a small procedure
PRESENT: For the Applicant : For the Respondent : ORDER Order pronounced in open court vide separate sheets. ... AVT Impex Pvt Ltd), in the Register as maintained by RoC relying on the ground that the Appellant Company is actively doing business and is in the possession of certain assets. 11. ... AVT Impex Pvt Ltd.), was incorporated on 01.01.2003 as a private limited company and has its registered office at S-438, Ist Floor, Greater Kailash, Part-2, New Delhi 110048 having CIN No.U51909DL2003PTC122455.. 3.
On that basis, following order came to be passed whereby the proceedings under D.V. Act came to be disposed of: 1. In view of compromise pursis (Exh.12) matter is disposed off.
He submits that a bare perusal of Section 22 shows that it only prescribes the procedure and the manner in which the D.R.T. will function and is not an independent power of the D.R.T. In other words, the D.R.T. is to discharge its functions as per the procedure laid down under Section 22, which includes power to review, passing exparte order, restoration, etc. These orders are always passed under Section 19 and which would include the power to pass an order of review and for which condonation of delay provided for under Section 5 of the Limitation Act, 1963 applies by virtu....
25. Section 126 of Cr.P.C. deals with the procedure for recording evidence, to pass an exparte order, to set aside the exparte order and order with regard to costs. Section 127 of Cr.P.C. deals with the power of the Magistrate to alter the allowance granted. Section 128 of Cr.P.C. speaks of granting free copy of the order to the petitioner and enforcement of the same in any place where the respondent resides.
By order dated 16.02.2016, in view of the fact that repeated opportunities had been granted to the respondent to file objections and no objections were filed, no ground was found for recalling of the order. 3 filed an application seeking setting aside of the order proceeding exparte.
(1) A reference to the Central Reg#31;istrar of any dispute under Section 74 shall be in writing. "Procedure in proceedings be#31;fore Central Registrar— Every such reference shall be accompanied with a fee of rupees ten for the money claims not exceeding rupees one thousand and rupees fifty in all other cases.
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