Divorce Ex-Parte Procedures

The Court after issuing Notice/Summons for a person calls out his/her name on the next date of hearing.. If the party appears, it is fine but if the party does not appear and there is suffient proof to show either that the Summons was refused or not claimed, then the Court records service as sufficient and immediately thereafter, it places the other party ex-parte.. However, if there are any doubts in the mind of the court as to the service of summons/notice or in cases where there is no clarity as to date of service or service as such, or where no acknowledgment is received, it may order for issuing notice again.

If the Court places a person exparte, then the matter will be posted for evidence of the Plaintiff/petitione r who has approached the Court and on the given day, if the party files the Affidavit and produces documents, then it shall proceed to hear formal arguments or straightaway post the matter for judgement.

If the matter is placed exparte, he/she can make an application under Order IX Rule 7 and if sufficient reasons are shown by the absent party on the particular day, the Order placing him/her exparte will be recalled and the party be permitted to conduct the case on merits.. there is no time limit for that however, ‘sufficient reasons’ is a matter of fact and depends on the facts of each case….

However, in case where the party is placed does not appear and make necessary application and the Court proceeds to pass judgment and draws decree, then the party may have to make a separate Petition (termed as Miscellaneous Petition in karnataka State) for setting aside the exparte decree.. The petition should be under Order IX Rule, 13 C.P.C. and I reproduce the relevant portion below.. :-

Order IX Rule 7 : Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance
-Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

Order IX Rule 13 : Setting aside decree ex parte against defendant
-In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any or the other defendants also:
[Provided further that no Courts shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.]

Regards..

Pramod, Advocate, Bangalore..