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Ex-parte Decree Issue of Law and Issue of Fact
Question: When can the civil court proceed to an ex-parte decree in any litigation?
Answer:
An ex-parte decree:
Ex-parte decree means that the case is to be settled after hearing the plaintiff. The decree in which the court provides decree by only hearing one party, is called an ex-parte decree. Ex-parte decree refers to the decree, which is provided in the absence of the defendant, That is, the decree provided in favor of the plaintiff in the absence of the defendant is called an ex-parte decree.
According to rule-6 of order-9 of the Code of Civil Procedure, where at the day of hearing of the case, the plaintiff is present, and the defendant is absent, and if it is proved that the summons were issued as usual on the defendant, court may pronounce a decree in the absence of the defendant, which is called an ex parte decree.
Question: Who can apply for cancellation of an ex-parte decree? When can the court cancel ex-parte decree? Answer with the relevant provisions of The Code of Civil Procedure, 1908.
Answer:
Who can apply for setting aside an exparte decree.
A defendant can apply under rule 6 of order 9 of the code of civil procedure for setting aside an exparte-decree.
When a court can set aside an ex-parte decree.
1. Setting aside an ex-parte decree:
Defendant can apply within 30 days (as per article 164 of the Limitation Act) to the decreeing court for setting aside of an exparte decree in accordance with Rule 13 of Order-9 of the Civil Procedure Code. In this case, if the defendant can convince the court that he has not been summoned as usual or that he could not appear in court on the day of hearing of the case for any other reasonable cause, the court will order setting of the exparte decree and fix a date for trial. Appropriate reason is a matter of information that is judged by the situation or event.
2. Directly setting aside ex-parte decree:
In accordance with Rule 13A of Order-9 of the Civil Procedure Code, the defendant may apply for directly setting aside of the ex-parte decree. In case of directly setting aside, the following conditions have to be fulfilled:
a) The application has to be made within 30 days.
B) There must have an affidavit with the application.
C) Notice has to be given to the other party as per order 9, rule-14.
The court may directly order the setting aside of the ex-parte decree and order the defendant to pay a cost not exceeding tk.3000. The court may direct setting aside order shall not be made more than once.
There is no need to present evidence to prove the reason for the defendant's absence to satisfy the court.
Question: A filed a civil suit against B before the Court of Assistant Judge, Faridpur. B was present at the date fixed for the hearing. But in the absence of 'A', the suit is dismissed. What can A do to set aside the order of dismissal? Discuss with the relevant provision of the Code of Civil Procedure, 1908.
Answer:
Facts:
'A' filed a civil suit against 'B' in Faridpur Assistant Judge's Court. At the date of hearing B was present. But in the absence of 'A' the suit was dismissed.
What steps can 'A' take for setting aside of dismissal order:
According to Rule 8, Order-9 of the Code of Civil Procedure, where only the defendant appears on the day of hearing of the case but the plaintiff is absent, in that case, if the defendant agrees with the plaintiff's demand, court will issue a decree on behalf of the plaintiff and if the defendant denies the claim, court will order dismissal of the case. If the case is dismissed under Rule 8 of Order 9 of the Civil Procedure Code, 1908, the plaintiff may obtain the set aside of the dismissal order or any of the following remedies against the said order:
1. Setting aside of the order:
If the case is dismissed under Rule-8, Order-9 of the Civil Procedure Code, 1908, the plaintiff will not be able to file a new case. But may apply for setting aside of the dismissal order, showing reasonable grounds. The court will not set aside the order dismissing the case without giving notice to the defendant regarding the plaintiff's application. The plaintiff may, in accordance with Rule 9 of Order-9 of the Civil Procedure Code, apply to the ordering court to set aside the dismissal order. In this case, if the plaintiff can convince the court that he could not appear in court on the day of hearing of the case due to sufficient reasons, the court will order the set aside the dismissal order and set a date for trial of the original case. Appropriate reason is a matter of information that is judged by the situation or event.
2. Directly setting aside:
The plaintiff can apply for direct setting aside of the dismissal order under Rule-9A, Order-9 of the Civil Procedure Code, 1908. However, the following conditions must be met:
A) The application must be made within 30 days.
B) Affidavit will be attached with the application.
C) The other party has to be given notice.
The court may order the plaintiff to pay compensation of not more than tk.1000.
The order of directly setting aside of an order shall not be more than once. Showing the reason for the plaintiff's absence to satisfy the court is not needed.
Question: The court directed the plaintiff to submit the said document within the stipulated time in the light of the defendant's application for inspection relating to the content of the case. But if the plaintiff fails to comply with the order of the court, what can be the result of such failure? Discuss the relevant provisions of the law.
Answer:
According to Rule 21 of Order-11 of the Civil Procedure Code, in case a party fails to comply with an order to answer the questionnaire or to open or inspect the documents, if he is a plaintiff, he will be liable for dismissal of the case and if he is a defendant, he will be liable for the cancellation or deduction of any reply given in his defense and it will be assumed that the defendant has not submitted any reply. The questioning party or the petitioner of the revelation or inspection shall apply to the court for an order to that effect and the court may issue an order accordingly.
Remedy:
The order to be issued under Rule 21 of Order-11 of the Civil Procedure Code is an appealable order under Rule 1 of Order-43 of the Civil Procedure Code.
Question: What do you mean by issue of law and issue of fact between the parties? Briefly describe the procedure for forming an issue by a court of law. What can the parties do in court if there is no legal or factual matter to be heard on the day of the first hearing of the case? Answer by mentioning the rules and regulations.
Answer:
Issue of law and issue of fact:
According to Rule 1 of Order-14 of the Civil Procedure Code, the matter arises when one party firmly declares the important matter of the incident or law and the other party denies it. Important matters of fact and law are those matters of law or fact which the plaintiff must complain in order to establish his right to sue or the matters on which the defendant has to rely to defend his defense. Strongly declared by one side and each important issue rejected by the other party will create a separate fact in issue. There are two types of issues to be considered:
a. issue of facts and
b. issue of law.
The matter that the court decides on the basis of the facts is the matter to be judged on the basis of facts and the matter which is decided on the basis of law is the matter to be judged on the basis of law. Pursuant to Rule 2 of Order-14 of the Civil Procedure Code, if there is a cause of action on both the law and the fact in the case and if the court thinks that the issue of law can be tried, then the issue of fact may be adjourned till the issue of law is determined.
Brief discussion on the method of forming issue by the court:
In accordance with Rule 1 (5) of Order-14 of the Civil Procedure Code, on the day of the first hearing of the case, the court reads the plaintiff's plaint and the defendant's written statement, if any, and then proceed to formulate and write down all the issues on which the case appears to be based on. In any case, within 15 days of the first hearing of the case or submission of a written statement, whichever comes later, the issue is to be framed. Pursuant to Rule 3 of Order-14 of the Civil Procedure Code, the matters from which the issue can be formulated are:
✔ From allegations raised by the parties or their representatives or their attorneys through oaths.
✔ From the allegations made in the plaint or written statement or answer to the questionnaire given in the case.
✔ From the contents of the deed submitted by any party.
On the day of the first hearing of the cage, if the parties do not have any issue:
According to order 14, rule 1 (6) of the Code of Civil Procedure if the defendants does not defend, the court shall not determine any issue.