Appearance of Defendant
SURESH KUMAR PATRA
(Querist) 19 April 2011
This query is : Resolved
Can a Defendant (who learns that a civil suit is filed against him) appear in the suit before admission of that suit without being summoned and can challenge the admissibility of that suit. If so, under what provisions of law.
manoj r. dubey
(Expert) 19 April 2011
yes he can appear in person or through his pleader without being summoned and can challenge the admissibility of the suit under the provision of C.P.C.
Guest
(Expert) 19 April 2011
You have every right to defend yourself. Better nip the evil in the bud before it prospers.
Parveen Kr. Aggarwal
(Expert) 19 April 2011
Order 5, Rule 1 of the Code of Civil Procedure, 1908:
"Summons: (1) When a suit has been duly instituted, a summons may issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant;
Provided that no such summons shall be issued when a defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim :
Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other days as may be specified by the Court for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.
(2) A defendant to whom a summons has been issued under sub-rule (1) may appear—
(a) in person, or
(b) by a pleader duly instructed and able to answer all material questions relating to the suit, or
(c) by a pleader accompanied by some person able to answer all such questions."
G. ARAVINTHAN
(Expert) 19 April 2011
Any person, who is a party to the suit can appear if he has the knowledge of the suit
adv. rajeev ( rajoo )
(Expert) 20 April 2011
He can appear without the service of summons, he can file his written statement. Suits will be decided only on the merit. If there is a issue on jurisdiction, res-judicta etc., then such issues will be treated as preliminary issues and those will be heard first and decide the case, otherwise as usual evidences and arguments.
Advocate. Arunagiri
(Expert) 20 April 2011
Normally the civil cases will be posted after 4 or 5 weeks on numbering stage itself. This is to enable to serve the summons. So, the court will hear the case only after the service of summon is at least attempted.
SURESH KUMAR PATRA
(Querist) 20 April 2011
I am not satisfied with the opinions of the experts. The crux here is whether the Defendant can appear before the summons is served on him & challenge the admissibility of the suit.One of the Experts Mr. Praveen Ku. Agrawal though quoted the provisions of law, I don't think it cater to the need of my query as the first Proviso the Or.5 Rule 1 of C.P.C. reveals that no such summons shall be issued when a defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim but in the instant suit the Defendant is not going to admit the claim of the Plaintiff but wants to challenge the admissibility of the Suit.So, I don't think the Defendant can appear & challenge the admissibility of the suit before being summoned.
Guest
(Expert) 20 April 2011
Dear Suresh,
Your response says you don't agree with the opinion of experts, i.e., with the opinion of all the experts.
So, if you feel that the opinions of one and all are wrong, you need not appear before the issue of summons. Fine for me at least! I won't insist you to adhere to my advice, irrespective of the fact that I have my firm conviction that the defendant has the right to defend himself right from the origin of the case.
J K Agrawal
(Expert) 20 April 2011
Plea of demurrer can be raised at any stage even at the time of initial registration of suit itself.
Secondly it is very common sense that if defendant appears Court has no law that it will not record his presence.
Very purpose of caveat is that plaintiff should not get an order from court ad interim and without even summoning the defendant.
