Every person has the right to be heard. So every party in the court case is entitled to notice of court for hearing and get the opportunity to hear by the judge in that particular case. But the terms of ex parte is against this rule. In this article, we will learn about ex parte and the principle of res judicata.
The “Ex Parte” is a Latin word which means “on one side only”, which means the judge gives the decision without requiring all parties in the case, this is called “Ex Parte”. In simple words, the court can take the proceedings in the court without the presence of another party in the case.
Ex Parte decree
Any decree which is passed by the court against the party without heard or knowledge of the party is called a decree of Ex Parte. When a plaintiff files the suit or plaint in the court, the service of the summons is being done by the court but at the date of hearing the defendant does not appear and the court has the knowledge that the summons was duly served, that court has the power to pass the decree against such person, this decree, without the presence of the defendant is known as Ex Parte decree. The court will pass this decree without hearing the defendant.
The court cannot give its decision against the party who does not appear in the court after the service of summons. It will take the witness of the party who is present at the date of hearing and if found the witnesses and documents are against the other party, the court may pass its decision against that party. But if the court satisfies that the witness or documents are not authentic, the court may dismiss the case.
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Relief against Ex Parte decree
The person has the remedies provided under the law if the decree of Ex Parte is passed against him, which are:
Set aside: the person can move the application for setting aside the order in the court.
Appeal: the person can move the application in the court for the appeal against such decree of Ex Parte.
By review: the person can apply for the review of the decree of Ex Parte.
Principle of Res Judicata
The principle of Res Judicata is used as the restriction on the suit where the decision is already given in that suit. The true means of the principle of Res Judicata is ”the suit or case, where the court which was the competent jurisdiction to give its decision in that particular case, passed the decision, between the same parties, the court shall dismiss the case as the case is useless”.
Objects of Res Judicata
The doctrine of Res Judicata is based on 3 maxims, which are:
No person must be affected twice for the same cause.
It should be an end of litigation.
The decision given by the judge must be accepted as same.
Conditions for application of Res Judicata
There are some conditions for the application of Res Judicata
There must be the two suits where one is a former suit and the other is subsequent. Former suit means the suit which was previously decided by the competent court where the court has the jurisdiction to decide the case. Subsequent suit means the fresh suit applied for the same matter as the former suit.
The matter is direct and subsequent in the subsequent suit:
The matter must be directly related to the formal suit. If the matter is not as same as in the former suit, the principle of Res Judicata will not apply.
There must be the same parties:
The parties for the suits are those who file the case and others defend the case (petitioner and defendant). If the parties were in a case and the case was decided, them their legal heir will also be considered as binding by the decision. They cannot file the suit for the same matters.
There must be the same title:
If the suit is with the same title with the same parties, the principle of Res Judicata will apply. But if the title of the suit is not the same, the principle of Res Judicata will not bar the suit.
The decision must be made by the competent court:
The former decision which is passed in the previous suit must be passed by the competent court having the jurisdiction to pass the decision in that case. If a court without the proper jurisdiction gives the decision in a case, the principle of Res Judicata will not apply.
The decision must be heard and finally decided:
The matter which is in question must be heard and finally decided by the court. Any decision which was not heard by the court in the former suit will no barred by the principle of Res Judicata.
For example, any ex-parte decision, dismissal, the decree on an award, etc.