No care
abhimanyu
(Querist) 15 May 2013
This query is : Resolved
A filed a civil case against B. Summons were issued to B to appear on 10.5.2013. Summons were duly served upon B. However, Hon.Judge was on leave on 10.5.2013. The court staff asked whether A and be were present. While A was present, nobody came forward from B's side and next date given is 4th July, 2013.
Now, please advise
(a) how non-appearance of B on 10.5.2013 would be taken by the court.
b) what will court do, if B does not appear on 4.7.2013 also.
Khaleel Ahmed Mohammed
(Expert) 15 May 2013
Three four opportunities will be given for appearance, if B failed to appear your advocate may press court to pass exparte orders.
abhimanyu
(Querist) 15 May 2013
My queries are
(a) will court take cognizance of his non-appearance on 10.5.2013 when judge himself was not there?
(b)Should issue of fresh summons have been pressed on 10.5.2013 itself by A?
Raj Kumar Makkad
(Expert) 15 May 2013
a. No cognizance can be taken for either the presence or non-presence on the day when the court itself was on leave.
b. Fresh notice shall be issued to B.
abhimanyu
(Querist) 15 May 2013
(a)When judge was not there, who will issue fresh notice to B.
(b) What about first summons? Have they gone waste?
Raj Kumar Makkad
(Expert) 16 May 2013
a. Notice shall be issued by same court either summoning the file before going to leave or after coming back from leave.
b. Yes. First summon gone waste.
abhimanyu
(Querist) 16 May 2013
Thanks respected Shri Makkad.
When first summons were duly received by the Defendant and he was directed to appear on 10.5.2013, is it not his duty to find out next date of hearing himself if judge was on leave on 10.5.2013. Further, if he does not bother to find out next date of hearing himself and fails to appear on the next date, will court not record his absence as why Plaintiff should suffer for judge being on leave and benefit going to Defendant. Is this justice our judicial system gives.
Experts may advise action to be taken by Plaintiff so that first summons do not go waste.
ajay sethi
(Expert) 16 May 2013
yes it is duty of defendant to find out next date of hearing . summons have been duly served on defendant
if defendant does not appear on next date court will mark him absent . you have not mentioned nature of civil suit filed by you if you have filed a summary suit and defendant has not entered his appearance within prescribed period you can apply for exparte decree
Raj Kumar Makkad
(Expert) 16 May 2013
As due to leave of the court, the earlier notice whether served or not, could not be considered so the plaintiff shall have to re-summon the defendant.
abhimanyu
(Querist) 17 May 2013
Respected Shri Ajay Sethi has opined that it is duty of defendant to find out next date of hearing . However, Respected Shri Makkad has opined that First summons have gone waste. In case the Defendant does not appear on the next date of hearing, there is no doubt that Defendant will be re-summoned but clarification from experts is requested as to on what ground First summons will be considered waste due to no fault of Plaintiff although Defendant,who knows the date of first hearing, when judge is on leave, does not appear on the first date as well as on the next date given by the Court staff.
What is expected legally from the Defendant in this type of situation?
venkatesh Rao
(Expert) 17 May 2013
The judge is on leave and not the court. In civil suits, the defendent may appear through his advocate and need not be personally present. If the defendent has engaged a counsel, the advocate could have filed vakalath in the office of the court itself.
When the parties are called out even when the judge is on leave, the party apearing for the first time and not represented by a counsel, should be asked to put his signaure on the left side of the order sheet so that the judge on the next date may take note of, and on next date , if he remains absent, may mark him absent and cannot place him exparte, as he has once put in his appearnace.
abhimanyu
(Querist) 17 May 2013
In this particular case, the judge was on leave and when court staff asked about Plaintiff and Defendant, Plaintiff was present and raised his hand but there was none from Defendant's side, who was duly served summons by the court to appear on 10.5.2013. It is not known whether absence of Defendant was marked by the court staff or not. Now, respected Shri Makkad has opined that the first summons have gone waste.
My query is why First summons should go waste as the Defendant can very well find out what happened on 10.5.2013 and can know the next date of hearing and should appear on the said date. If he does not care to appear on 4th July, 2013, he should be marked absent by the Court.
Experts may opine please as to how Plaintiff should proceed in these circumstances so that first summons do not go waste.
venkatesh Rao
(Expert) 19 May 2013
First summons can never be waste. Service is service and absence of judge has got nothing to do with it. Plaintiff may file a memo requesting the court to place the defendant exparte; but the courts normally issue court notice without insisting process fee from the plaintiff.
abhimanyu
(Querist) 20 May 2013
Thanks very much Shri Venkatesh Rao. There is no problem if court issues second summons to the Defendant.
Can't court itself mark absence of Defendant without filing memo by the Plaintiff?
