Consequences of non-appearance of parties in civil litigations

[abduarif]

Raisul Islam Sourav

Appearance and non-appearance of parties during trial before the court is a crucial issue to resolve civil dispute. Because, mere appearance or non- appearance can determine the ultimate result of a civil litigation. The provisions of the Code of Civil Procedure (CPC), 1908 are based on a general principle that, as far as possible, no proceeding in a court of law should be conducted to the detriment of any party in his/her absence. Also it is the duty of the concern party to be aware of his rights, show vigilance towards the court and establish his/her claim by taking proper measures.

In law, appearance means appearance in person or through advocate for conducting a case. However, appearance by a pleader within the meaning of CPC does not mean mere presence in the court; it means “appearance by a pleader” duly instructed and able to answer all material questions relating to the suit.

Effect of non-appearance of the plaintiff

On the first day of a trial, if it is found that the summons which need to be served upon the defendant has not been served properly in consequence of the failure of the plaintiff to pay the court-fee or postal charges payable for such service, the court may dismiss the suit for the default of the plaintiff.

Again, on the date of peremptory hearing, if the plaintiff does not show up but the defendant  appears before the court, the suit will be dismissed accordingly unless the defendant admits the whole claim or any part of it. In the latter case the court shall pass a decree against the defendant upon such admission, and, shall dismiss the part of the claim not admitted.

Remedies against such dismissal

If a suit is dismissed for non-appearance of the claimant, the plaintiff has two-fold options to revive his/her case. However, where concurrent remedies are available at the same time it is the duty of the concerned lawyer to choose the best one for the protection of the rights of his/her client. In that case the remedies are:

a) Filing a fresh suit on the same cause of action before the competent court

b) The plaintiff may file a petition to set the dismissal order aside. The petitioner shall have 30 days to file the petition from the date of cancellation of such suit. After the expiry of that 30 days the petitioner has another chance to file the petition by virtue of Section 5 of the Limitation Act.

Apart from these, in case of dismissal of suit for non-attendance, the defaulter may file an application to set aside the dismissal order by swearing an affidavit to the concerned court within 30 days from the date of such dismissal order, along with a fee of not more than Tk1,000.

Effect of non-appearance of the defendant

After the service of summons,  the defendant has to appear before the court in person or represented by a pleader on such date stipulated in the summons. If the defendant is not ready to defend his/her case at that day, he/she may take further time to answer after getting permission from the court. If the party does not appear in person or through his/her lawyer, the suit will be determined finally by the court at that day, only for non-appearance of the defendant and the plaintiff will get an ex parte decree from the court.

Further, on the date of peremptory hearing, if the plaintiff is present but the defendant is not then the suit will also be decreed ex-parte on the basis of plaintiff’s claim. However, the defendant has an opportunity to adjourn the hearing by showing proper reason for his/her absence. However, to avail this opportunity, he/she needs to pursue his/her suit by appearing in person before the court.

Remedies against such ex parte decree

If an ex parte decree has been passed against the defendant then the defendant has to take any of the following five actions against such decision:

1. The defendant may file a petition by swearing an affidavit within 30 days from the decision of the trial court to set aside the decree with a fine of not more than Tk3,000 and the defendant can get this opportunity once in a suit according to the provision of  the Code of Civil Procedure.

2. The defendant may apply for setting aside the ex parte decree after showing sufficient cause and substantial reason for not appearing before the court. However, the term “sufficient cause” has not been defined anywhere in the Code, it is a question of fact and it will be determined considering the fact and circumstances of each case.

3. The defendant may file an appeal under section 96 of the CPC to reverse the decision of the trial court.

4. The defendant may file a review petition before the same decision making trial court to set aside its former decision.

5. The affected party may file an independent suit for cancellation of the decree under the Specific Relief Act, 1887.

Consequences of non-appearance of both the parties

If both the contesting parties (plaintiff and defendant) remain absent from the hearing on the date of peremptory or final hearing, the suit may be dismissed by the court. In that case, both the parties have the same remedy that a claimant has against an order of dismissal for non-appearance.

Finally, non-appearance of parties in a civil litigation has a great impact upon the whole proceedings of the case.

It is the duty of both the parties to appear before the learned court at appropriate time and to cooperate with the court to settle the dispute effectively.

- See more at: http://www.dhakatribune.com/juris/2014/may/21/consequences-non-appearance-parties-civil-litigations#sthash.570WNeRr.dpuf