Set exparte!
Rajini Sunderraj
(Querist) 28 July 2013
This query is : Resolved
Sir,
A suit for defamation is filed against my aunty for filing a criminal case that dragged on for about 2 and a half years, because of threats from the accused she did not pursue the case and hence the accused was acquitted.
Later nearly a year he filed a suit for defaming him to a tune of 10L.
My aunt did not attend the 2st agjournment hence she was set exparte.
She is not well. In case she does not attend the next adjournment what will happen?
Does Filing a case and not having convicted by the court leads to defamation? pl clarify!
Advocate M.Bhadra
(Expert) 28 July 2013
Once a Defamation Case is filed then your aunt should defend the case,in the mean time your aunt can file a Quashing Petition u/sec.482 Cr.P.C. in High Court,though merit is rare.
SEC.482 Cr.P.C.;-- Saving of inherent power of High Court.
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.
Nadeem Qureshi
(Expert) 29 July 2013
Dear Rajini
as per your information, it is a suit and your aunty is defendant so no need to worry file an application under Order 9 Rule 7 of CPC for set-aside the previous order.
Read section below
Order 9 rule 7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non appearance.- Where the court has adjourned the hearing of the Suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.
HIGH COURT AMENDMENT
Rajasthan.- The following shall be substituted for Rule 7, namely:
“7. Where the Court has adjourned the hearing of the suit after making an order that it be heard ex parte and the defendant at or before such hearing appears and assigns good cause for his previous non-appearance, the Court may upon such terms as it directs as to costs or otherwise set aside the order for the hearing of the suit ex parte and hear the defendant in answer to the suit as if he had appeared on the day fixed for his appearance”.
(30.6.1956).
prabhakar singh
(Expert) 29 July 2013
Please understand it that when anybody puts criminal law in motion to charge another with a crime and accused gets acquitted finally then the accused gets a cause of action in law of tort to sue the victim and prosecutors for damages under the head of 'malicious prosecution' which you are understanding wrongly as defamation.
Coming to case now after his filing of the suit a notice of summon must have come to your aunty and she was required to file Written statement in reply to suit,since she did not file it by date and was absent on date of issues,the court has ordered the suit to proceed exparte,and would in future ,may pass exparte decree too.
Remedy:Engage a lawyer,get inspected the file,get filed an application to set aside the exparte order stating reasons of absence and asking time to file W.S.
Appearance of your aunty on every date is not necessary; once she files vakalatnama, even you can pursue the case along with her lawyer unless time to lead evidence in case arrives.
prabhakar singh
(Expert) 29 July 2013
To experts!
Though we advise free but it does not confer
right in us to reply so recklessly that one gets misleaded.
Devajyoti Barman
(Expert) 29 July 2013
First get the decree passed ex parte set aside by filing petition under order 9 rule 13 cpc.
Acquittal does not give rise to case for defamation.
Rajendra K Goyal
(Expert) 29 July 2013
File application to set aside the ex parte order against the defendant and fight the case through lawyer.
R.K Nanda
(Expert) 29 July 2013
nothing to add.
