Request for Expert advice!
Dadi Uma Mahesh
(Querist) 09 February 2010
This query is : Resolved
1.Divorce Petition on the ground of 6 years desertion and Cruelty was filed by the Husband in the Family Court.
2.Courts Sends the Summons to the Wife of the petitioner and was refused by the respondent(Wife) the summons returned to court.
3.Court Fixed the First Hearing on 09/02/2010, and it was observed that respondent attended to the First hearing even after refusing the Summons.
4.In the absence of Judge who is on Leave on 09/02/2010, the respondent along with Lawyer attended and said they will file vakalatnama,
5.How did they Know about the Bench Date without receiving (after refusing) the Summons?
6.My Question would be if they(Wife) have refused to take Summons, and claiming to file the Vakalatnama on the First hearing be entertained by the Court Staff in the absence of Judge who is on Leave?
7.Can the Husband(Petitioner) Lawyer insist for Ex-Parte Judgement in the next hearing on 08/03/2010 based on above Facts?
R.R. KRISHNAA
(Expert) 09 February 2010
Summons is a form of notice to attend the hearing/court. There is no strict and hard rule that a person refusing summons should not come and file vakalat in the first hearing. In the absence of the judge, the court officer is entitled to receive vakalat, memo or any petitions from the parties with the seal of the court. It is a usual practice. There is nothing wrong on the part of court officers to receive vakalat from the respondent.
Needless to say petitioner counsel is entitled to seek for exparte decree as the summons has been refused by the respondent. But when the respondent is present in the court or when the respondent has undertaken before the court officers that she will file vakalat in the next hearing, it would not be correct/fair on the part of the petitioner counsel to seek ex-parte judgment.
Raj Kumar Makkad
(Expert) 09 February 2010
The counsel for the petititoner has got no opportunity to pray for ex-parte order pased against the respondent when she with her counsel is present in the court though she may have refused the notice. The purpose of sending the notice is to secure the presence of the party in favour of whom such summon has been sent and it is also cleared in the same notice that on failure to attend the hearing fixed on the date mentioned in the summon, the ex-parte proceeding shall be initiated against him/her. So there is no illegality on the part of respondent and court staff has duly received vakaltnma on her bahalf filed in favour of her counsel and no benefit of the given facts can go in favour of the petitioner.
Guest
(Expert) 09 February 2010
summons are only in the benefit of the opposite party that they even know that some suit filed against them and on what date he/they ve to appear before the concerning court otherwise the matter'll decide ex-parte. If respondant refuse to take summons then afterward he/she appeared on the first hearing of the case n file vakalatnama then nothing wrong in that.In the absence of Judge who is on Leave on 09/02/2010 There is nothing wrong on the part of court officers to receive vakalat from the respondent
Parveen Kr. Aggarwal
(Expert) 09 February 2010
What are the contents of summons? - Requiring the respondent to attend the court on the date and time mentioned therein.
In case the respondent attends the court at the date and time, what is wrong in it. Rather it is compliance of what has been stated in the summons. It is nowhere provided that for marking presence of the respondent it is mandatory that he must receive summons.
Section 21 of the Hindu Marriage Act, 1955,
Application of Act 5 of 1908.- Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (5 of 1908).
Order 9, Rule 1 of CPC provides:
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.
