Can Ex Parte Orders Be Challenged in Revision before the High Court?

Introduction

In Indian judicial proceedings, an ex parte order is an order passed by a court in the absence of one of the parties. Such orders are common in both civil and criminal proceedings, often arising when a party does not appear despite due notice, or when urgent interim relief is granted without hearing the opposite party. The question frequently arises: Can ex parte orders be challenged in revision before the High Court?

The answer is: Yes, ex parte orders can be challenged in revision before the High Court, but only under limited circumstances — typically when the order suffers from jurisdictional error, illegality, or material irregularity and when no effective alternative remedy exists. This article explores the concept of ex parte orders, the legal remedies available against them, and the scope of challenging such orders through revision.

Understanding Ex Parte Orders

1. Meaning of Ex Parte Orders

“Ex parte” literally means “from one party.” An ex parte order is passed without hearing the opposite party, usually due to:

The absence of the opposite party despite service of notice.
Urgency or interim protection required before a full hearing.
Procedural lapses or defaults in appearance.

2. Types of Ex Parte Orders

Civil Proceedings: Ex parte interim injunctions, ad interim orders under Order XXXIX CPC, or ex parte decrees under Order IX Rule 6 CPC.
Criminal Proceedings: Ex parte maintenance orders under Section 125 CrPC, interim protection orders under Domestic Violence Act, or warrants issued without hearing.

3. Why They Matter

Ex parte orders can significantly affect a party’s rights because they are passed without hearing their side. The law, therefore, provides multiple remedies to challenge or vacate such orders.

Legal Framework for Revision Petitions in High Court

1. Civil Revision – Section 115 CPC

The High Court may call for the record of any case decided by a subordinate court in which no appeal lies and can interfere if the subordinate court:

Exercised jurisdiction not vested in it by law;
Failed to exercise jurisdiction vested in it; or
Acted illegally or with material irregularity.

2. Criminal Revision – Sections 397–401 CrPC

The High Court may examine the correctness, legality, or propriety of any finding, sentence, or order of an inferior criminal court. However, Section 397(2) CrPC bars revision against interlocutory orders.

3. Constitutional Supervisory Jurisdiction – Article 227

Apart from statutory revisions, the High Court also has supervisory jurisdiction under Article 227 of the Constitution to ensure that subordinate courts act within their jurisdiction. This jurisdiction can also be invoked to challenge certain ex parte orders.

Remedies Against Ex Parte Orders Before Approaching the High Court

Before filing a revision petition in the High Court, it is important to consider alternative remedies:

1. Setting Aside Ex Parte Orders in the Same Court

Civil: Under Order IX Rule 7 CPC, a defendant against whom an ex parte order has been passed can apply to set it aside if he shows sufficient cause for non-appearance.
Ex Parte Decree: Under Order IX Rule 13 CPC, a party can apply to set aside an ex parte decree within 30 days (Limitation Act).
Interim Orders: Applications can be filed under Order XXXIX Rule 4 CPC to vacate or modify an ex parte injunction.
Criminal: In criminal cases, provisions like Section 126(2) CrPC allow the respondent to set aside an ex parte maintenance order upon showing sufficient cause.

2. Appeal (If Available)

If the order qualifies as an appealable order or decree, an appeal is the first remedy rather than revision.

3. Writ Jurisdiction

If the ex parte order violates fundamental rights or natural justice, a writ petition under Article 226 or Article 227 may be filed.

Challenging Ex Parte Orders Through Revision

1. When Revision Is Maintainable in Civil Matters

An ex parte order in a civil matter can be challenged in revision before the High Court only if:

No appeal lies against the order;
The subordinate court exercised jurisdiction illegally or with material irregularity;
The order, if allowed to stand, would cause irreparable injury and there is no other adequate remedy.

Example:

An ex parte order granting interim injunction under Order XXXIX Rules 1 and 2 CPC.
If the trial court refuses to hear the defendant’s application to vacate the order or passes the order beyond its jurisdiction.

Case Law:

Major S.S. Khanna v. Brig. F.J. Dillon (1964) – Held that revision under Section 115 CPC lies only for jurisdictional errors, not to reappraise facts.
Shiv Shakti Coop. Housing Society v. Swaraj Developers (2003) – The Supreme Court explained the narrow scope of Section 115 CPC, emphasizing that interlocutory orders can be revised only in limited situations.

2. When Revision Is Maintainable in Criminal Matters

An ex parte order in a criminal case can also be challenged in revision, subject to the bar under Section 397(2) CrPC.
Examples:

Ex parte maintenance order under Section 125 CrPC if the respondent had no notice or opportunity to contest.
Ex parte interim protection order under the Domestic Violence Act issued without following procedure.

Case Law:

Kamaljit Singh v. State of Punjab (2019) – The High Court interfered in a revision petition challenging an ex parte maintenance order under Section 125 CrPC due to lack of proper service.

Limitations on Challenging Ex Parte Orders in Revision

Jurisdictional Errors Only: The High Court cannot interfere merely because it disagrees with the trial court’s discretion.
No Reappreciation of Facts: The High Court will not substitute its own conclusions for the trial court’s.
Interlocutory Orders Bar: Section 397(2) CrPC and post-2002 Section 115 CPC amendments restrict revision against interlocutory orders.
Alternative Remedies Preferred: High Courts insist that parties first exhaust remedies such as applications under Order IX Rule 13 CPC or Section 126(2) CrPC.
Delay and Laches: Revisions filed after unreasonable delay may be dismissed.

Procedure for Filing Revision Against Ex Parte Orders

Step 1: Obtain Certified Copy

Get a certified copy of the ex parte order from the trial court.

Step 2: Draft the Revision Petition

Clearly mention:

The facts leading to the ex parte order.
The grounds for revision (lack of jurisdiction, procedural irregularity, violation of natural justice).
Absence of any other remedy or exceptional circumstances.

Step 3: Annex Supporting Documents

Attach pleadings, evidence of non-service of notice, or other procedural defects.

Step 4: File Within Limitation

For criminal revisions: 90 days (Limitation Act, Art. 131).
For civil revisions: No fixed period under CPC, but generally treated as 90 days as per High Court rules.

Step 5: Seek Interim Relief

Along with the revision, file an application seeking stay of operation of the ex parte order pending the revision.

Situations Where Revision Is Commonly Used Against Ex Parte Orders

Ex parte interim injunction orders under Order XXXIX CPC.
Ex parte orders of attachment before judgment under Order XXXVIII CPC.
Ex parte orders of maintenance under Section 125 CrPC.
Ex parte protection orders under the Domestic Violence Act.
Ex parte bail cancellation or issuance of NBWs.

Alternatives to Revision – Strategic Considerations

Application to Set Aside Ex Parte Order: Preferred because it allows the trial court to reconsider its order without invoking the High Court’s supervisory jurisdiction.
Appeal: If the order is appealable, always choose an appeal over a revision.
Writ Petition: In exceptional cases of gross violation of natural justice, a writ petition under Articles 226/227 may be more effective than a revision.

Case Laws Illustrating Revision Against Ex Parte Orders

Hindustan Aeronautics Ltd. v. Ajit Prasad (1973) – The Supreme Court emphasized the revisional jurisdiction is for correcting jurisdictional errors.
Smt. Krishna Kumari v. Additional District Judge (1992) – High Court allowed revision against an ex parte interim maintenance order.
Ravi Kumar v. Juliana (2010) – Clarified that Section 126(2) CrPC provides a remedy to set aside ex parte orders before invoking revisional powers.

FAQs on Challenging Ex Parte Orders in Revision

Q1. Can an ex parte decree be challenged directly in revision?
Generally no. Order IX Rule 13 CPC provides a specific remedy to set aside an ex parte decree. Revision is maintainable only if there is a jurisdictional error or no other remedy exists.

Q2. Can interim ex parte injunction orders be challenged in revision?
Yes, but only if they are beyond the jurisdiction of the court or cause grave injustice and no appeal is provided.

Q3. Can a criminal ex parte maintenance order be challenged in revision?
Yes, under Sections 397–401 CrPC, but the respondent should first apply under Section 126(2) CrPC to set aside the order in the magistrate’s court.

Q4. Is there any time limit to challenge ex parte orders in revision?
For criminal revisions, generally 90 days; for civil, as per High Court rules or Limitation Act principles.

Q5. Does filing a revision automatically stay an ex parte order?
No. A separate application for stay must be filed with the revision petition.

Key Takeaways

Yes, ex parte orders can be challenged in revision before the High Court, but only on limited grounds like jurisdictional error, illegality, or violation of natural justice.
Before approaching the High Court, parties should exhaust statutory remedies like Order IX Rule 13 CPC (civil) or Section 126(2) CrPC (criminal).
Revision cannot be used as a substitute for appeal or for rearguing the merits of the case.
High Courts exercise revisional powers sparingly and only to prevent gross miscarriage of justice.

Conclusion

Ex parte orders, by their nature, significantly affect the rights of a party without hearing them. While the law allows such orders in urgent or default situations, it also provides remedies to challenge them. A revision petition before the High Court is a valid tool to challenge ex parte orders, but only under limited circumstances involving jurisdictional error, illegality, or procedural irregularity, and usually after exhausting alternative remedies.

This balanced approach ensures that the principle of natural justice is preserved while also maintaining judicial efficiency and preventing abuse of process.

Important: Kindly Refer New Corresponding Sections of Bharatiya Nyaya Sanhita 2023, (BNS); Bharatiya Nagarik Suraksha Sanhita 2023, (BNSS); & Bharatiya Sakshya Adhiniyam 2023, (BSA) for IPC; CrPC & IEA used in the article.

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.

Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304