Summons to defendants set exparte ina a restored suit
P.Parthasarathi
(Querist) 30 December 2012
This query is : Resolved
A title suit for declaration of right and title was filed by the Plaintiff against 4 claimants to the suit property declaring them as the defendants. Three out of them were set exparte for non-attendance and non filing of written statements. One of them contested. Owing to the negligence of the plaintiff's lawyer the suit was dismissed for default. Plaintiff prayed for restoration of the suit in a mis-case by adding the L/Rs of two deceased defendants( who passed away in the intervening time). The suit has been restored to file. The total number of defendants, including 2 from the original suit who were set exparte in the mis-case numbered to 18. Only one of the 18 present defendants is contesting--who is the L/R of a deceased defendant. The original defendant was the mother of the contesting L/R, who was already set exparte in the original suit.
Now the question is : Whether under these facts and circumstances,(upon restoration of the suit ) it is necessary to again issue notices/summons to the present surviving L/Rs of the deceased defendants and 2 original defendants who were arleady set exprte in the original suit and also in the mis-case.
Kindly give some Citations preferably from the Hon Supreme Court of India on this issue.
ajay sethi
(Expert) 30 December 2012
you will have to serve the LRs of deceased defendants . the suit has been dismissed for default . on restoration you have to serve all Defendants
Devajyoti Barman
(Expert) 30 December 2012
First apply for restoration and then apply for substitution of parties.
Raj Kumar Makkad
(Expert) 30 December 2012
As the suit has been restored so you need not to summon the legal representatives of those defendants who had already became ex-parte. If any of those LRs has to defend the suit, let them come before court seeking setting aside ex-parte proceeding. You need not to summon them nor you are required to bring the fact of death of either of the defendants on file as you have no concern with the defendants who have been proceeded as ex-parte.
P.Parthasarathi
(Querist) 31 December 2012
Dear Rajkumar Makkd Saab,
I shall me most grateful if you could provide some case law concerning this issue. We badly need any decisions of Hon S.C in this regard. Kindly help me and my friend. The case is posted for next hearing in 3rd week of January. Please help us. Our efforts to find decisions in various websites proved in vain.
Parthasarathi.
Raj Kumar Makkad
(Expert) 31 December 2012
Lakpa sherpa versus Tempa Sherpa AIR 1997 Sik. 1 at page 3.
P.Parthasarathi
(Querist) 31 December 2012
Sir,
We are very grateful to you for your reply and the case law. Sir, we also have some judgments directly applicable to our case. We r afraid the opposite party might comeup with decisions of SC. In order to face a situation like that we want to be ready with some S C judgments. We will be grateful for any such decisions of HON SC.
Parthasarathi
Raj Kumar Makkad
(Expert) 31 December 2012
There is no contradictory case law of supeme court as after restoration of the case, the same shall not to the previous stage rather shall start from the stage it was dismissed as default.
