October 20,2018:

The Author, Anuj Kumar Gera is a 5th Year student of University Institute of Law and Management Studies, Gurugram, Haryana. He is currently interning with LatestLaws.com.ORDER 9 INTRODUCTION

Order 9 deals with appearance and consequence of non appearance of parties. It also provides remedy for setting aside and order for dismissal of suit and also the setting aside of ex-parte decree. This order contains 14 rules

Q1. Where neither party appears on first date of hearing?

Ans. In such case the court may dismiss the suit however, if the court is satisfied that there are sufficient grounds for non appearance court can set aside its order of dismissal and fixed a date for hearing

Q2. Where only plaintiff appears?

Ans. Where plaintiff appears and defendant does not appears then court may make order that suit to be heard ex parte but he must proof service of summon that it was duly served.

Q3. Where only defendant appears?

Ans. In such case court can pass an order of dismissal of suit unless, there was sufficient grounds for non-appearance or defendant admits  the plaintiff claim either wholly or in part, in such case the court will pass a decree against defendant

Q4. What if the summons is not served?

Ans. It is a fundamental rule of law that party must have a reasonable opportunity of being heard and for that purpose; he must have a notice of legal proceedings initiated against him.

If summon is not served to the defendant or it does not give him sufficient time to represent his case then no decree can be passed against him.

Q5. What is ex-parte decree?

Ans. An ex-parte decree is a decree passed against the defendant in absentia despite serving of summons where on date of hearing only plaintiff appears and the defendant does not appears the court may hear the suit ex-parte and can pass a decree against defendant it is voidable on legal and valid grounds but otherwise it has all the force of valid decree.

Q6. What is the procedure for setting aside ex-parte decree?

Ans. The defendant against whom ex parte decree passed may apply for setting it aside. The application for setting aside an ex-parte decree can be made

  1. to the court who passed the decree
  2. An application may be filled to a superior court

The grounds of setting aside ex-parte decree are

  1. The summon was not duly served
  2. He was prevented by any sufficient case for appearance

INTRODUCTION OF ORDER 10

Order 10 provides the court must at the first date of the case ascertain from each party or his pleader where he admits or denies such charges after recording admissions and denial if any and court will direct the party to refer the case to ADR

Q1. What will be the procedure in order 10 if no settlement takes place in ADR?

Ans. In such case the matter will again referred to Court.

Q2. What if the pleader refuses or unable to answer any question relating to suit?

Ans. In that case, court may postpone the case and direct the party to appear on such date.

INTRODUCTION OF ORDER 11

Order 11 deals with the mode of discovery and inspection. In every suit there are two sets of facts namely.

Facta probanda:  The fact which constitutes the party case.

Facta promantia: The fact by which the said case is to be proved.

Party is entitled to know only first set of fact that is Facta probanda which disclose the nature of party’s case.

Q1. How the party discovers the nature of case under this order?

Ans. By following ways

  1. Through interrogatives
  2. By production of documents
  3. By inspection

Q2. What is interrogatory?

Ans. It means to ask questions or to make enquiries. Where a party to a suit required for information of facts from the opposite party he may ask series of question those questions are called interrogatories.

Q3. Against whom interrogatories may be allowed?

Ans. It may be allowed against plaintiff or defendant. It can also be made against government. In cases where party to a suit is a minor or lunatic or of unsound Mind interrogatories main PCR served to next friend or guardian.

Q4. What are the forms of interrogatories?

Ans. Interrogatories should be in form number 1 and 2 of appendix C and answer to interrogatories should be in form 3

Q5. Party takes objection to interrogatories?

Ans. Party may object to answer if it is Scandalou, Irrelevant, Filled with Malafide intention, Immaterial, Where question is prolix, Question is unnecessarily asked

Q6. Can interrogators be set aside?

Ans. Yes, it can be set aside on any ground which is mentioned above and application may be made within 7 days after service of interrogatories

Q7. What questions may be allowed in interrogatories?

Ans. The question which answer will either Prove the case of parties or destroy his case question must be precious not too lengthy must be direct and most importantly must be relevant to the matter in question in the suit

Q8. Can a party ask for production of documents?

Ans. Yes, court may ask for production of document Court if satisfied that it is necessary for justice and also refuse if it is not necessary for deposing fairly

Q9. What is the form for notice to produce?

Ans. Form 7 in appendix C, with such varieties as circumstances may required

Q10. Can the answer given in reply to interrogatories used in trial?

Ans. Yes, rule 22 gives answer to this question. A party may use in evidence any answer or any part thereof in trial.

Q11. What if any party fails to comply with any order of Discovery inspection or interrogators

Ans. When a party fails to comply with any order then if he is plaintiff, then he is liable to have his suit dismissed and if the defendant fails then he is to be placed in the same position as he had not defended but only after notice to the parties and given them reasonable opportunity of being heard if the suit is dismissed the plaintiff will not be allowed to bring a fresh suit on the same cause of action.

Introduction to Order 12

This order deals with admissions. As section 58 of evidence act says that a fact admitted need not be proved. The adoption of procedure laid down in order 12 which results in saving the cost and speedy disposal case.

Q1. How can parties makes admission?

Ans. By notice through his pleader or otherwise

Q2. Can either party call upon other party to admit any facts or truth of document?

Ans. Yes, a party can give a notice to other party to admit any document within 7 days from the date of service and for admission of facts by notice not later than 9 days

Q3. Which is the form of notice, form of admissions and of notice to produce document?

Ans. For notice to admit document- Form 9 in Appendix C

For notice to admit facts – Form 10 in Appendix C

For admission of facts – Form 11 in Appendix C

For notice to produce document – Form 12 in Appendix C

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