spl. civil suit
Querist :
Anonymous
(Querist) 06 August 2010
This query is : Resolved
I am a junior advocate and started independent practice since last about a year and a half . I am recently started practicing in a dist. Court in Maharashtra. in one of my matter I need expert’s help. The matter is that one civil matter is transferred to me from one advocate. The suit is for recovery of amount and interest. In the said matter summons is served long back about 3-4 years back. The defendant failed to file their appearance and w.s. the earlier advocate has neglected to attend the matter hence the matter transferred to me. (The advocate after returning the brief still trying to spoiled the matter as he is paying by the defendant. That’s why he removed by the plaintiff) Recently I found that the proof of A.D. card and a copy of application wherein order passed by the court are misplaced from the record of court. On the board of court my matter is mentioned under the caption of “for passing order on exhibit” but The judge is not ready understood the matter and simply avoiding to hear the matter and/or passing the ex- parte order. The judicial clerk giving me dates stating that on next date ex- parte order will pass. Under the circumstances what should I do?
Plz. help me and guide me in details.
S. Bharath
(Expert) 06 August 2010
Can you refine your query..
Chanchal Nag Chowdhury
(Expert) 06 August 2010
U will have to satisfy the court that the summons has actually been served upon the deft. Remember that Order 5 CPC provides for Bailiff service in addition to Postal service. If service has not been satisfactory, U R advised that this part is completed first before proceeding further,if necessary, by fresh service.
Find out what is the court's finding about service.If it is satisfactory & still the court is not proceeding, U may either file an application u/s 24 CPC before the District Judge for transfer of the case to another court or U can prefer an application under Art. 227 of the Constitution of India in the High Court.
Given the option, I would have preferred an application under Art. 227.
niranjan
(Expert) 06 August 2010
Pl.go through the file of court,find out whether summons is served or not,if not,do it again.pl.also find out whether the suit is a summary suit.If you find out the summons is served,deft.has appeared and not filed ws then apply to the court for passing decree in the matter,if needed by adducing evidence exparte in the matter.Or find out as to on which exhibit the order is tobe made, and what is the stage of the suit.
s.subramanian
(Expert) 07 August 2010
yes. i agree with Mr.chanchal.
Querist :
Anonymous
(Querist) 08 August 2010
Sir,
Summons is served through R. P. Ad. about 4 years back. and affidavit of service also filed by earlier advocate and on the application of the advocate for the plaintiff, court has ordered to file claim affidavit for ex-parte evidence. the Affidavit filed and argued out and matter is placed for order since last about a year. now a few dates back i came to know that the said Ad. card and Application on which the order was passed is removed/stolen/misplaced from the record.
