Contesting parties must receive notice and an opportunity to oppose interlocutory applications.

Respondents 1 and 2, who had been set ex parte in a partition suit, applied to set aside the ex parte order against them. The trial court allowed that application on 10 February 2023, relying on the plaintiff’s “no objection” endorsement.

The petitioners—contesting defendants, including the legal representatives of deceased defendant S. Harikrishnan—then filed an application seeking recall of that order, asserting they had not been given an opportunity to file objections. The trial court rejected the recall application at the filing stage, without numbering it, on 3 March 2023.

The petitioners challenged that rejection under Article 227 of the Constitution.

1. Whether the contesting defendants were entitled to notice and an opportunity to object before the application to set aside the ex parte order was allowed

2. Whether the trial court’s rejection, without numbering, of the petitioners’ recall application could be sustained where they claimed they had been denied an opportunity to be heard

Rule 31 of the Civil Rules of Practice requires notice of an interlocutory application to be given to the other parties, unless the court otherwise orders.

The court also relied on the principle that a court may recall an order passed without giving an affected party an opportunity to be heard, as distinguished from reviewing an order on its merits (Asit Kumar Kar v. State of West Bengal, 2009 (2) SCC 703).

Further, the court referred to the inherent powers under Section 151 of the Code of Civil Procedure to secure substantial justice and prevent technical considerations from defeating it (Kaliyaperumal v. Pudupettai Chokkanathaswamy, 2007 (3) CTC 444), and to this Court’s decision in T. Jaswanth v. S. Ravichandran concerning the need to afford a party an opportunity to file a counter.

The petitioners were parties to the interlocutory application and were contesting defendants in the suit; under Rule 31, they were therefore entitled to notice and an opportunity to present objections absent an order dispensing with notice.

Although notice was said to have been served, the court noted that the application was allowed on the plaintiff’s “no objection” endorsement without considering the petitioners’ objections.

The petitioners promptly sought recall after learning of the order, but the trial court rejected their application without numbering it, thereby denying them an opportunity to have their request considered on its merits. The need for speedy disposal did not justify denying that opportunity.

It directed the trial court to number I.A.Sr.No.1577A of 2023, if otherwise in order, and decide it on the merits and in accordance with law after issuing notice and giving all respective parties an opportunity to file counters or objections.

The court made no order as to costs and closed the connected miscellaneous petition.