Notes

OYE NEHA TERE SAARE ANS LE MARR



Point of difference between DID and Exparte
Your Answer
Ans. Evidence and to proceed with the matter. After recording evidence exparte, the Court can pronounce judgment on the basis ... evidence which is brought by the Plaintiff. In such cases, the suit is not disposed of as provided under Order.

Ex-Parte is a Latin legal term meaning literally "from/out of the party/faction of" (name of party/faction, often omitted), thus signifying "on behalf of (name)". An ex parte decision is one decided by a judge without requiring all of the parties to the dispute to be present.

An ex parte decree is a decree passed in the absence of the defendant (in absenti). Where the plaintiff appears and the defendant does not appear when the suit is called out for hearing and if the defendant is duly served, the court may hear the suit ex-parte and pass a decree against him.

Sometimes, emergency situations require the court to act without both parties receiving notice. If the judge grants the ex parte order, the order is only temporary. ... The judge will hold a full hearing within a short period of time.

Related Content. Latin term meaning "by or for one party." The term refers to an attorney's communication with: A judge or arbitrator without notice to, and outside the presence of, the other parties. Another party outside the presence of that party's attorney.

(3) Ex parte Addleson (The parties are: Applicant and/or Respondent if any) this case is another example of a civil case. However, here the application proceeding has been used. In application proceedings the Latin words ''Ex parte'' (in the application) appear before the applicant's name.



2How a Exparte Decree can be set aside

Your Answer
Ans. Under Order 9, Rule 6(1)(a) the court may proceed ex-parte and pass an ex-parte decree when it deems fit that the defendant has absent himself from the court on the date of hearing stated in the summons served to him in accordance with the provisions of the Code.

Order 9, rule 6(1)(a) states that:

Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing

. The Rule further classifies this situation into three distinct scenario

When summons duly served. if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte.

When summons not duly served. if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant.

When summons served but not in due time. if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons.

Decree can only be given in relation to a suit. Although CPC does not define what suit means, in Hansraj vs Dehradun Mussoorie Tramways Co. Ltd.[1] the Privy Council defined the term suit as a civil proceeding instituted by the presentation of a plaint.

Consequences of Non Appearance of Parties (Order 9)

The general provisions of CPC are based on the principle that both the parties must be given an opportunity to be heard. The proceedings must not be held to the disadvantage of one party. Order 9 lays down rules regarding the appearance and the consequences of nonappearance of a party in the hearing.

Appearance and Non-Appearance

Rule 1 - Parties to appear on day fixed in summons for defendant to appear and answer:

On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.

Dismissal of Suits

Rule 2 - Dismissal of suit where summons not served in consequence of plaintiff’s failure to pay cost:

Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, or to present copies of the plaint or concise statements, as required by rule 9 of order VII, the Court may make an order that the suit be dismissed. Provided that no such order shall be made, if, notwithstanding such failure the defendant attends in person (or by agent when he is allowed to appear by agent) on the day fixed for him to appear and answer.

Rule 3 - Where neither party appears, suit to be dismissed:

Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed

Rule 4 - Plaintiff may bring fresh suit or Court may restore suit to file:

Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in rule 2, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.

Rule 5 - Dismissal of suit where plaintiff after summons returned unserved, fails for one month to apply for fresh summons:

(1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved the plaintiff fails, for a periods of one month from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that-

he has failed after using his best endeavors to discover the residence of the defendant, who has not been served, or

such defendant is avoiding service of process, or

there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

Ex parte Proceedings

Rule 6 - Procedure when only plaintiff appears

Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-

(a) When summons duly servedif it is proved that the summons was duly served, the Court

(b) When summons not duly servedif it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant;

(c) When summons served but not in due timeif it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

Where it is owing to the plaintiffs' default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.


3.Briefly discuss Interpleader Suit

Your Answer
Ans.When the plaintiff on behalf of the claimant filed a suit for choosing the actual owner of the property then it is called an interpleader suit. When a Plaintiff is not in the direct possession of the property or thing, he files a suit. Petitioner has the indirect possession of the property. There is more than one defendant in this suit. Because in this suit more than one defendant can file the suit for the claim of property. When the actual owner of the property dies without transferring the property to anyone then the property transfer becomes the interpleader suit. Other than that the plaintiff may file a suit for the movable or immovable property to deliver the property to the defendant because more than one person has filed a suit for the claim of property. Debt is required in this suit or some amount of money for the dispute which is between two defendants. Defendants can claim some debt from another defendant of the property. Only the plaintiff is the one who cannot claim any cost and is also ready to deliver the property to the defendants. Interpleader is defined in Section 88 of the Civil Procedure Court.



Examples



Sanjeev has a 2 BHK flat in the co-operative colony. He has two wives. Because of some diseases, he caused to die. After his death, his wives claimed the property. The father of Sanjeev filed a suit in the court to decide the actual owner of the property.

Akhil has 2 crores fix deposit. He has two wives and both wives have 1 child. Both of them claim the money for their child maintenance. The bank filed a suit in the court to know the order related to the real owner of the money for the maintenance of the child.

Res Judicata

Res Judicata is the oldest law that is defined in the Civil Procedure Court under section 11. Res Judicata means the suit which has already got the judgment from the court. If any suit is filed under Res Judicata then the same subject-matter cannot filed as a new suit, in other form of law or any other court of law. If by mistake any case is filed in any other court of law which is already filed under Res Judicata then the judge can dismiss that petition directly without any further proceeding.



Interpleader suit in CPC

Interpleader suit in C.P.C is defined in section 88 with order no XXXV. An interpleader suit means if any person claims any property of her husband or her parents and in case the owner of the property is dead without transferring the property, then the second owner has to claim the property from the bank or authority. After claiming for such property the bank or the authority has to file an interpleader suit in the court. Then the court will decide who will be the main owner of the property. In an interpleader suit, there were many defendants to claim the property. Plaintiff gets the monetary value for filing the suit in the court on behalf of the defendant. He is not liable for any damage.



The Reinstitution of interpleader suit.

Where interpleader suit may be reinstituted and Power to state case for the opinion of the Court is defined under Section 88 and 90 of the Code of Civil Procedure 1908. When defendants blame each other for the claim of the same property, debt or sum of money from the plaintiff who is not in the direct possession of the property or debt and also he doesn’t claim interest and ready to deliver the property and he is ready to give the property to the claimant. The suit which is filed related to Res Judicata cannot be instituted in another court.



The Object of filing interpleader suit.

The suit is filed when the object is to be claimed by the defendants. The claim of the suit gets adjudicated. The suit is filed when any person in any condition cause death and has left some of the property without transferring to other members of the family then that other family member has to claim the property or money from the bank and then the bank has to become claimant to file a suit in the court to decide whomever the property has to be transferred. This type of suit filed in the Res Judicata court.



Interpleader suit and its condition

Conditions of Interpleader suit

Debt, money, property either movable or immovable in the dispute.

Two defendants are there in the suit.

Both defendants can claim each other for the property or money.

The person who has to pay the debt to the defendant is not valid for any interest.

The Claimant is willing to pay the debt, or some amount of money, or property to the defendant.

Suits are not pending in this.

This suit cannot be filed twice if the judgment is given in Res judicata.

Test of applicability