The Rajasthan High Court has held that an ex parte interim order cannot be treated as one passed "without giving an opportunity of hearing" under Article 226(3) of the Constitution, where the affected party had already been served with the writ petition and relevant documents and had been granted sufficient opportunity to appear and contest the matter.

The Court observed that a party cannot take advantage of its own absence and subsequently seek vacation of the interim order under Article 226(3).

The Court was hearing an application filed by the State under Article 226(3) of the Constitution seeking vacation of an interim order passed in a writ petition. The State contended that since the interim order had been passed in its absence, the same was liable to be treated as an order passed without granting an opportunity of hearing and was therefore liable to be vacated under Article 226(3).

The petitioner opposed the application, contending that copies of the writ petition and supporting documents had already been furnished to the respondents and sufficient opportunity had been granted to contest the matter.

A Bench of Justice Sanjeet Purohit, while rejecting an application filed by the State, examined the scope of clause (b) of Article 226(3), and observed: “the expression ‘without giving such party an opportunity of being heard’ cannot be equated or construed as ‘actual availing of such opportunity or participation in hearing’. The intent behind the said Article is to ensure the grant of an effective opportunity to be heard, and the same cannot be made dependent upon availing of such opportunity by the concerned party at his convenience or sweet will. Once such an opportunity is duly given by the Court, the constitutional requirement stands satisfied, and a party cannot, by its own absence or default, render the interim order amenable/vulnerable under Article 226(3)”.

Advocate Divik Mathur represented the petitioner, while Senior Advocate Rajesh Panwar, AAG and Advocate Monal Chugh appeared on behalf of the State.

Background

The writ petition was initially listed before the Court, where directions were issued for the respondent department to supply a copy of the petition. Subsequently, counsel appeared on behalf of the respondents and time was granted to file a reply. However, when the matter was next taken up, neither a reply was filed nor did any counsel appear on behalf of the respondents. The Court thereafter passed an interim order staying the operation of the impugned order.

Following the grant of interim relief, the respondents filed a preliminary reply along with an application under Article 226(3) of the Constitution seeking vacation of the interim order on the ground that it had been passed ex parte.

Court's Observations

The Court examined Article 226(3) and observed that the provision contemplates two cumulative preconditions before an application for vacation of an interim order can be maintained.

The Bench held: "Article 226(3) of the Constitution of India in clear and unambiguous terms, contemplates two cumulative conditions precedent for invocation of the remedy of vacation of an interim order, namely: (a) where such interim order has been passed without furnishing copy of the writ petition and documents to the affected party; and (b) where the order has been passed without giving such party an opportunity of being heard."

The Court noted that both requirements must exist simultaneously for the remedy under Article 226(3) to become available.

The Court rejected the contention that every ex parte order automatically amounts to an order passed without an opportunity of hearing. The Bench observed:

"The expression 'without giving such party an opportunity of being heard' cannot be equated or construed as 'actual availing of such opportunity or participation in hearing'."

The Court explained that the constitutional requirement is satisfied once an effective opportunity has been granted by the Court.

It held that once such an opportunity is duly given by the Court, the constitutional requirement stands satisfied, and a party cannot, by its own absence or default, render the interim order amenable under Article 226(3).

The Court further observed that permitting such applications would allow litigants to deliberately remain absent and later challenge interim orders on the ground that they were passed ex parte.

The Bench held: "The provision cannot be construed to enable a party, who has been duly served and given with adequate opportunity but has chosen not to participate, to subsequently contend that no opportunity of hearing was granted."

The Court added: "Acceptance of such a contention would amount to permitting a party to take advantage of its own default and would render the judicial process susceptible to abuse, by allowing deliberate abstention from proceedings followed by a plea that an ex parte order was passed prejudicial to his interest."

Emphasising the constitutional scheme underlying Article 226, the Court held that there is a fundamental distinction between the Court granting an opportunity and a party choosing to utilise it.

The Bench observed: "This Court is, therefore, of the considered view that the distinction between 'giving of opportunity' and 'availing of opportunity' is fundamental to the constitutional scheme under Article 226."

It further held: "Where opportunity has been duly granted, and the party chooses not to avail the same, it cannot be permitted to invoke Article 226(3) on the premise that the order is vitiated for want of grant of opportunity of hearing."

Considering the facts of the case, the Court held that the interim order, though passed in the absence of the respondents, would in law be treated as an order passed after a biparty hearing because the respondents had already been served and granted an opportunity to contest the matter.

The Court observed: "This Court is of the firm view that the interim order 29.04.2026 though ex-parte is deemed in law to have been passed after a bi-party hearing as the copies of the writ petition and documents were furnished to the respondents and opportunity of being heard was also given; however, the same was conspicuously not availed by the respondents."

The Court cautioned that accepting the respondents' interpretation would defeat the very purpose of Article 226(3).

The Bench observed: "This Court is of the view that if such application is allowed to sustain and the provisions of the said Article are interpreted in such manner, the same would frustrate the object sought to be achieved by the said Article."

According to the Court, such an interpretation would encourage parties to remain absent despite service and thereafter seek vacation of interim orders on the ground that they were not heard.

While referring to a decision of the Gujarat High Court in Vinayakrao S. Desai v. Interlink Petroleum Ltd. & Ors reported (2001), the Court concluded: "looking to facts of present case, the instant application filed by the respondents under Article 226(3) for vacation of interim order is not maintainable, as conditions for maintaining such an application under Article 226(3) of the Constitution of India are not satisfied in present case".

Conclusion

Holding that copies of the writ petition and relevant documents had been furnished to the respondents and that adequate opportunity of hearing had been granted before passing of the interim order, the Rajasthan High Court held that the conditions required under Article 226(3) were not satisfied.

Consequently, the application seeking vacation of the interim order was rejected as not maintainable.

Cause Title: Bharat Kumar Choudhary v. State of Rajasthan & Ors. (Neutral Citation: 2026:RJ-JD:26988)

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