Ex parte judgment
senthil
(Querist) 05 September 2013
This query is : Resolved
In 2001 a civil case case between ourself and relative was closed as an Exparte judgement.
My realtive was not attended the trial when judges called him. so, judgement made as an Exparte
Now, after 12 years he filed the same civil case and also filled a criminal suite against us states that "He was not aware of the civil case which is closed on 2001.".
He was appointed a lawyer for that 2001 civil case. He signed in vakalathama, and he signed in the court summon also. Everything send to his address in registered post.
But he telling that he was not signed in any documents. it's a forgery that some one signed in his place.
He is denying every thing about 2001 case and framing us like criminals.
How to prove that he is lying and it's his own sign ? is it a valid case ?
I have posted the same problem in Forum but i was not received any answers. Please help me on this problem
Devajyoti Barman
(Expert) 05 September 2013
If decree is granted on the self same subject, then the subsequent suit is barred by res judicata.
Raj Kumar Makkad
(Expert) 05 September 2013
You ned not to worry rather have to defend the application seeking setting aside the ex-parte order and judgment vigorously and effectively with the help of your lawyer. No criminal case lies in the given facts.
Advocate Bhartesh goyal
(Expert) 06 September 2013
If your relative had appointed and filed the vakalatnama in case in 2001 than he is legally estopped to raise the plea that he is not aware of the civil case.Ex parte judgment can not be set aside on given grounds also he can not succeed in criminal case.
Rajendra K Goyal
(Expert) 06 September 2013
Agree with the experts, nothing more to add.
senthil
(Querist) 06 September 2013
Thanks to all experts.
C.V.Kansara
(Expert) 06 September 2013
I agree with experts.
prabhakar singh
(Expert) 06 September 2013
NO FRESH SUIT LIES TO SET ASIDE A DECREE PASSED EX PARTE.
GET SURE HE HAS MOVED RESTORATION UNDER O.9 RULE 13 OF C.P.C.
IT WOULD BE HE TO PROVE WHAT HE IS SAYING.
HE WOULD HAVE TO SEND HIS ADMITTED AND SPECIMEN SIGNATURES TO EXPERT FOR COMPARISON WITH DISPUTED,IN REBUTTAL YOU SHALL ALSO DO THE SAME,EVIDENCE OF HIS LAWYER AT THEN AS COURT WITNESS WOULD BE OF ADDED ADVANTAGE.
senthil
(Querist) 07 September 2013
Thanks prabhakar singh sir.
Can you please elaborate O.9 RULE 13 OF C.P.C?
whether some one can say that "I was not received court summon" even he signed in receipt of registered post. Is it a valid point? whether court will accept this?
Even though summon is a court document whether i need to prove his signature with hand writing experts?
And "EVIDENCE OF HIS LAWYER". The case is filed on 1993 and closed on 2001. So, it's almost 20 years dispute. I don't think his lawyer can identify him..
Rajendra K Goyal
(Expert) 07 September 2013
Order IX, R.13 CPC:
The aforesaid provisions read as under:
"Setting aside decree ex-parte against defendant In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; xx xx xx Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
- See more at: http://www.legalblog.in/2011/02/sufficient-cause-for-setting-aside-ex.html#sthash.6tY0X8VM.dpuf
