Affidavit to Recall an Ex Parte Order (India)
This template provides a formal affidavit format for a defendant in India to request the court to recall an ex parte order. It is specifically designed for situations where the defendant was not properly served with summons or was prevented by a sufficient cause from attending the court hearing.
Affidavit to Recall ex- parte order and set aside the order passed in the absence of Defendant.
Format of Affidavit for Miscellaneous Application to recall ex parte order passed against the Defendant.
Miscellaneous Application an be filed against ex parte order. Application under Order IX Rule 13 of Code of Civil Procedure dealing with Setting aside of decree ex parte against the defendant can be entertained only the following two grounds:
- Where summons were not duly served
- Where defendant was prevented from sufficient cause from appearing where the fact called for hearing.
Sample Format of Affidavit for Miscellaneous Application to recall ex parte order is given below:
IN THE COURT OF THE _____________ JUDGE AT _________
MISCELLANEOUS APPLICATION NO _______ OF 20__
MR ______________ APPLICANT / DEFENDANT
VS
MR _______________ RESPONDENT / PLAINTIFF
AFFIDAVIT
I, _______________ Son of _______________ aged _________ years, Resident of _________________________, do solemnly affirm and say as follows:
1. That I say, that I am the defendant in the above suit and the applicant in the application. I am well conversant with the facts and circumstances of the case and stand competent to swear to this affidavit.
2. That I say, that the aforementioned suit is for the recovery of an amount of Rs ________, allegedly due to the respondent-plaintiff from me, for selling Electronic Weighing Machine to the applicant.
3. That I say, that notice in the suit was not duly served on me.
4. The notice was in fact served to another person in my name in the same locality without verifying address. The said person did not care to inform me about any such service of notice and it was only on enquiry that I came to know that the address was wrongly given into the Process Memo of the summons by the respondent-plaintiff and therefore the notice was returned unserved earlier. Therefore, there was no due or proper service of notice on the applicant.
4. That I say, that it was only from one of my friends , who happened to have a case before this Hon'ble Court last week, that I came to know about the filing of the suit and the declaration of the applicant ex parte by this Hon'ble Court, not having appeared before this Hon'ble Court inspite of the alleged service of notice. This has caused great inconvenience and hardship to me. I further came to know that this Hon'ble Court had posted the case to for plaintiff's evidence. If evidence is taken ex parte and the suit decreed by this Hon'ble Court, it will cause irreparable loss, injury and hardship to me.
5. That I say, that I have got very serious contentions in the suit and have records to show that all amounts due to the respondent-plaintiff towards the aforementioned construction have been fully paid against proper receipts issued by him and there is no amount due from, and payable by me.
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