Kevin Moses Paul
18 October 2021
As per your concern let me inform you that if in a civil case the Defendant does not appear for hearing of the matter, the Plaintiff can plea before the court for a default judgment against the Defendant. However, in order to get the Judge to grant the default judgment, the Plaintiff is requisite to prove to the Judge some following factors, such as:-
(1) There is a reasonable probability the Defendant was actually served with the Notice of Claim.
(2) So far the Plaintiff knows, the Defendant: (a) is not on active duty in the military, (b) can read, write and understand the English language, (c) has no legal impairment or physical or mental disability that would keep him/her from attending the trial or that would prevent the Defendant from understanding the nature of the proceedings.
(3) The Plaintiff has a valid claim and should recover a money judgment from the Defendant.
Moreover, the Judge in such a case may also ask the Plaintiff to testify as well as to briefly present evidence to prove the claim.
Basically, the plaintiff appears but the defendant does not appear, then an ex-parte order can be passed against the defendant. But, the plaintiff needs to prove that the summon was served to the defendant along with the facts/situations discussed above.
Once, the service of the summons is proved then only the court can proceed for an ex-parte against the defendant and the court may pass a decree in favour of the plaintiff. However, this provision applies only for the first hearing and not for the subsequent hearings of the matter and the same has been held in the case of "Sangram Singh v. Election Tribunal".
While, in the case of "Maya Devi v. Lalta Prasad", it has been held by the Supreme Court that — 'It is the duty of the court to ensure that statements in the plaint stand proven and the prayers asked before the court are worthy of being granted. This provision of passing ex parte order cannot be passed when there are more than one defendants in the case and any of them appears'.
Regarding this concern order VIII Rule 1 of Code of Civil Procedure 1908 provides for a time limit of a maximum of 120 days for filing written statements after the service of summons is complete. Whether it is mandatory or directory depends on the nature of the transaction or the subject matter of the case.
Issue of Summons
Summons - (1) When a suit has been duly instituted, a summons may issued to the defendant to appear and answer the claim and to file the writ statement of his defence, if any, within thirty days from the date of service summons on that defendant;
Provided that no such summons shall be issued when a defendant has appeal at the presentation of the plaint and admitted the plaintiff's claim :
Provided further that where the defendant fails to file the written statement wit! the said period of thirty days, he shall be allowed to file the same on such other days as may be specified by the Court for reasons to be recorded in writing, but whi shall not be later than ninety days from the date of service of summons.
PROCEDURE WHEN ONLY PLAINTIFF APPEARS —
(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-
(a) When summons duly served- if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte.
(b) When summons not duly served- if it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant;
(c) When summons served but not in due time- if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons,
the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiffs’ default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.
Henceforth, 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;
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
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.
Hope This Helps!
Regards,
Kevin M. Paul
