Wednesday, 26 January 2022

THE FAMOUS RECENT EVICTION CASE

 THE FAMOUS RECENT EVICTION CASE

In an eviction proceeding, 27-11-2020 was fixed for the evidence of a landlord and 02-12-2020 form the evidence of a tenant. On 27-11-2020, neither the tenant nor his counsel appeared at hearing. The court recorded the evidence of a landlord and passed ex parte eviction order. The same day, the tenant applied for setting aside the ex parte order alleging that he was ill and his counsel had forgotten to mention the case in his diary. He filed his affidavit but did not file the medical certificate, diary and the affidavit of counsel. The landlord rebutted his allegation on affidavit.

The parties' appearance and non-appearance affect whose interests the case will be decided in. In a civil litigation, a party's failure to attend on the day set before the court on which the matter will be heard will have a negative impact on the party. As a result, it is the parties' responsibility to appear in court. In the event that one of the parties to the suit fails to appear, the decision will be in favour of the party who appears in court. The non-appearing party, on the other hand, can protect its interests by renewing the lawsuit.

Analysing the scenario at hand: 

  1. In an evidence proceeding a date of 27th November was fixed for the eviction of a landlord and on December 2nd form the evidence of a tenant.

  2. On 27th November, neither the tenant nor his counsel appeared at hearing.

  3. The court recorded the evidence of a landlord and passed ex parte eviction order.

  4. The same day, the tenant applied forsetting aside the ex parte order alleging that he was ill and his counsel had forgotten to mention the case in his diary

  5. He filed his affidavit but did not file the medical certificate, diary and the affidavit of counsel

  6. The landlord rebutted his allegation on affidavit.

APPLICATION BASED ON THE ABOVE FACTS

Order IX of Civil procedure code, 1908, lays down appearance of parties and consequences of nonappearance. In Jagraj Singh v. Birpal Kaur, the spouse filed an appeal against a High Court interim order that had been issued against him. A summons was delivered to the husband's residence in Italy because he did not reside in India at the time. Later on, a second summons was sent. The spouse, on the other hand, did not show up in court. The case was subsequently extended twice to more convenient dates in order to assure the appellant's attendance at the hearing. The spouse, on the other hand, was absent both occasions. The appeal was denied because the wife was present in court.

If only the plaintiff shows in court on the scheduled day, the court may proceed with the hearing ex parte in the defendant's absence if the plaintiff can show that the summons was duly served on the defendant. If the summons was not properly served on the defendant, the court may issue a second summons to the defendant, and if the summons was properly served on the defendant but did not give him or her enough time to appear in court on the stipulated date, the court will adjourn the suit to a more convenient date.

If it is proven that the summons was not properly served on the defendant due to the plaintiff's error, the court will order the plaintiff to pay the costs incurred as a result of the suit being adjourned to a later date. If there are several plaintiffs in a case and just a few of them fail to show in court on the scheduled day, the court may, at its discretion, allow the case to be heard as if all of the plaintiffs were present.

In the case of Kulendra Kishore Roy v. Rai Kishori Shaha, the plaintiff was directed to appear in person at the case's next hearing. The matter was then moved to a different court. The plaintiff did not show up in court on the scheduled day. The court did not take any action since the plaintiff was not present. Because there were several plaintiffs in this case, it was eventually decided that Rule 10 of Order IX of the Code of Civil Procedure, 1908 would apply. As a result, it was determined that continuing the lawsuit as if all of the plaintiffs were present was correct.

EXPARTE AND SETTING ASIDE OF EX PARTE 

In the absence of the defendant, the court may enter any decision ex parte under Rule 6(1) (a) of Order IX of the Civil Procedure Code. When the plaintiff shows up and the defendant does not, the case is summoned for a hearing. Ex parte decrees are not null and invalid or ineffective; rather, they are voidable and, until and until they are annulled on legal and legitimate reasons, they are proper, lawful, operative, and enforceable in the same way that bipartite decrees are, and they have all the force of valid decrees. The Supreme Court noted in Hoechst Company v. V.S. Chemical Company that an ex parte decree is one in which the defendant does not present in court and the matter is heard in his or her absence from the outset.

SETTING ASIDE EX PARTE ON BASIS OF INSUFFICIENT CAUSE

The requirements of Rule 13 of Order IX of the Civil Procedure Code apply to setting aside the court's Ex parte decree. The defendant against whom the ex parte decree was obtained might request to have it set aside if he can show that the summons was not properly served or that he was prevented from attending in the proceedings.  If the court is pleased with the procedures, it will issue an order to set aside the decree. The caveat to rule 13 further states that no court may set aside an ex parte decision only because of an error in the serving of summons provided the court is satisfied that the defendant was given notice of the hearing date and had ample time to present and address the plaintiff's claim. 

INSUFFICIENT CAUSE

The term "sufficient cause" must be generously defined to strike a balance between the decree holder's rights and the unfairness of depriving a judgement debtor of his right to adjudication for a reason that was fairly out of his will. The reason, however, must be genuine. When adequate cause is demonstrated for the non-appearance, the court has complete authority to reinstate the case. After the statute of limitations has expired, the other party is usually favoured, and the matter is only permitted to be reopened if the other party can prove adequate reason. 

In the case of Sohan Lal v. Kedar Nath, the non-appearance of the party owing to a municipal curfew was sufficient grounds for the ex parte order to be set aside. In P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar, the court had the power to throw aside the cases if there was insufficient grounds.

IN CONCLUSION, Both parties to the lawsuit, the plaintiff and defendant, are required to present in court on the day specified in the summons issued by the court to the defendant, either in person or through their pleaders. However, it is quite likely that one or both of the parties to the lawsuit will fail to appear on the court's scheduled date. Whatever the situation, the court has the option of hearing the suit ex parte or dismissing it entirely, depending on their discretion and the rules of Order IX of the Civil Procedure Code, 1908. However, if the plaintiff attends in court and the defendant is unable to do so, the court may issue an ex parte order against the defendant. Certain remedies are available to the party if there is adequate cause for the non-appearance. If the court is satisfied, the ex-parte order may be set aside. The right to be heard is one of the most fundamental elements of natural justice and civil process. 

In the case at hand, where the tenant doesn’t appear, and files an affidavit to set aside ex parte based on his illness and hasn’t provided with sufficient cause here the applicant who seeks to set aside the ex parte decree bears the burden of proving that the summons in the case was not properly served on him or that there was adequate grounds for his non-appearance which in this case would be the proof of his illness due to which he couldn’t appear before the court and the mistake of his counsel. On and off chance where he didn’t file the medical certificate, diary and the affidavit of the counsel his manifestation to set aside exparte, based on my understanding and the above mentioned arguments should be dismissed as this would be taking the court for granted and the ex parte eviction should stand.



No comments:

Post a Comment

Equality before law

  Equality before law “The state shall not deny to any person equality before the law. Meaning of right to equality This means that every pe...