Dismissal of Civil Suit for Default
Balaji Bakthavathsal
(Querist) 24 December 2010
This query is : Resolved
A fraudulent person who attempted to grab our property through some fake/forged documents filed a false civil suit in the district court and using the civil suit as shield, he escaped from the criminal action by the police. When the suit is pending in the court, he made some money by selling our property to other fraudulent persons even though we are in possession and occupation of the property till date. He allowed the civil suit to get dismissed not once but twice for his non-appearance. My question is
1) how can the our judicial system allow the suit to be dismissed for default and that too for the second time without punishing the plaintiff for his default ? Is it not mere wasting of precious court time and causing much hardship to the defendants who are the genuine owners and to the other people who are waiting for their turn for their cases to be heard in the court ?
2) Does the court consider that only the plaintiff is the genuine person and need not bother to hear the defendant in the absence of the plaintiff ?
3) When the plaintiff is absent, why can’t the court give an ear to what defendant has to say on the suit and decide before dismissing the suit for default ?
Balaji Bakthavathsal
(Querist) 24 December 2010
4) And why no lawyer is interested to bring such incidents to the court's notice ?
R.Ramachandran
(Expert) 24 December 2010
Dear Mr. Balaji,
If I go to the court with a case, If I do not pursue it, what the court is to do. It has to dismiss the case for non-prosecution. As far as the court is concerned, there is no case at all. When there is no case, where is the question of hearing anybody? That is the legal position.
So, your question why not the defendant be heard and decided etc., etc., does not arise. There are very many legal implications in doing so. For instance, assume for a while, I file a case in regard to your property but name the defendant as someone else and not you. I do not pursue the case as a plaintiff, according to you, if the court hears the defendant and if the defendant claims that it is his property and the court passes the order - what will happen? Where will you go. After seeing such an order, you have to approach the court and establish your credentials.
Currently, by dismissing the suit for non-prosecution, you have been saved the botheration. What I have stated is only one example. There may be several such examples that may happen, in case your suggestion is accepted.
So, the court is correct in dismissing the suit for non-prosecution by the plaintiff and not hearing the defendant.
Guest
(Expert) 24 December 2010
(1) I hope you have not understood the advantageous position you are put in now. When the case of the plaintiff is dismissed, you should take it to your advantage.
(2) The court is set up only to hear the petitioner's/plaintiff's woes. Hence if the plaintiff does not pursue his case, he should face the dismissal. You are only expected to defend your plaintiff's suit and you cannot set up your Case in the one initiated by your plaintiff.
(3) In fact, you should have filed a Cross-suit when your plaintiff's suit was alive, but you missed the bus.
(4) You should file a separate suit against your plaintiff praying for injunction, declaration, etc.,
(5) So now you should file a separate suit and the Court will hear you certainly and adjudicate the issues putforth by you.
Satyendra Kumar Pandey
(Expert) 24 December 2010
Answers of your query one by one is as under:-
1. In your case as the suit is dismissed twice in absence of plaintiff so he is liable for punishment as which can be compensated with cost, but for that your learned lawyer must be through light on this point and inform the hon'ble court.
2. If you have any grievance against the plaintiff then you must file counter-claim against the plaintiff in his case and in those circumstances court can dismiss his suit and decreed your counterclaim/suit.
3. Plaintiff pay court fees for getting relief from court, and he is the master of his case, so court firstly heard him and thereafter to defendant.
4. for this I am not interested to answer.
s.subramanian
(Expert) 24 December 2010
So long there is a provision for restoration of such suits dismissed for default in Order IX Rule 9 CPC,this kind of abuse will continue for ever. No point in lamenting over this.
bhupender sharma
(Expert) 25 December 2010
the Delhi high court rules provides that the suit in the early hours shall not be dismissed. further more the highcourt also rules also provides that no adverse order be made before lunch and it is the incumbent duty of the subordiante judge to follow the same so as to avoid the multiplicity of the proceedings and the dispoal of the misc. applicaitons. U please go through the concerned high court rules u will find the way.
Balaji Bakthavathsal
(Querist) 25 December 2010
I sincerely thank all the learned experts for their views expressed. I agree with the dismissal of the suit for default due to the absence of the plaintiff. But how can the plaintiff treat the courthall as a play ground and play his game and go unpunished ? During the pendency of the case, he played all the dirty games, sold our property without waiting for the order and created all sorts of problems. I have given criminal complaint with the police and filed a suit in the court also. All are pending. There is no law prohibiting him to revive the suit again and get dismissed again for default. Such false suits simply piles up the cases. Most important point is, no documentary evidences were produced by him while filing the suit for the points he has raised in his plaint. It is regretted to note that any plaint submitted without supporting documents are accepted by the court which should be straightaway rejected is my view.
