03 March 2012 Written by  Alem Abraha and Tafesse Habte

PRE -TRIAL PROCEEDINGS

The First Hearing

Overview

Under this topic, we are going to discuss the procedural steps that will be applicable during the first hearing. In the first hearing, parties to litigation, mainly, party plaintiff and party defendant, are expected to appear. If both parties appear as ordered by the court, the court then will examine them. This is to clearly identify the controversial point of the dispute. If the defendant has raised objections, the court will give a ruling on the objection and if the objection will not result in striking out or dismissal of the suit, it will proceed and frame the issues. However, some times, one or both of the parties may fail to appear in the court of law at first hearing. In such cases, the court will order based on the procedure.

 

In general, at first hearing, the court reads the statement of defense, examines both parties to determine their respective positions, rules on any preliminary objections, and frames the issues for trial. In certain circumstances, the court may adjudicate the case at the first hearing without requiring a full-scale trial. If the proceeding is transferred to the trial stage, the court sets a date for the trial and at the trial it hears evidence and decides the issues. Here under, we are going to discuss the procedural steps to be applied during first hearing.

 

Non -Appearance of parties

 

As we have seen above, if a defendant appears in the first hearing with his statement of defense, will the court holds what is called the first hearing. However, a question like the following one may arise: “what will happen where a party does not appear before the court at the required time?” The problem of non-appearance may arise throughout the proceeding and the provisions may be applicable to all stages of the proceedings. i.e. the first hearing, the trial and review. But the problem of non-appearance usually happens at the first hearing.

 

An appearance involves coming before the court so that the court can adjudicate the case or take any other action it deems necessary. A party to a suit is not mandatorily required to appear personally at the hearing.

 

A party may appear through an agent or pleader. However, the court may require that the party should appear in person, and if a party who has been ordered to appear fails without good cause, it is considered as if there was no appearance. Where there are several plaintiffs or defendants, anyone of them may be authorized to appear on behalf of them all. (Art.66 (1). Such authority must be in writing and signed by the party giving it, and filed in the court (Art. 66(2)). Where persons are sued as partners in the name of the firm, each must appear individually in his own name. But subsequent proceedings will continue in the firm name. So, if a partnership is sued in the firm name, all the partners must appear individually at the first hearing (Art. 67). Where a body corporate is sued, the court may require the personal appearance of the secretary, any director or other principal officer who can answer questions relating to the suit (Art. 68(1)). The same is true with government employees who may be able to answer questions in a suit involving to government (Art 68(2)). In other words, while a personal appearance is not ordinarily required, the court has the power to compel the personal attendance of parties or agents where it concludes that such attendance is necessary for the determination of the questions in the suit. Where a party appears through a pleader, the pleader must be able to answer such questions or be accompanied by a person who can.

 

 

Action upon Non-appearance

 

 

The Civil Procedure Code is strict on the requirement of appearance. Of course, it has its own rational. If one of the parties ordered by the court fails to appear and if the court does not take immediate action, then the case would be delayed and the court would adjourn the case to a later date. This will create a lot of problems to the parties, and to the court. This is not permitted under the code. Hence, if a party is ordered by the court to appear on a certain date, he has to appear. Non appearance results in affirmative action on the part of the court depending on who appears or who fail to appear the court will either struck out, dismiss, adjourn or proceed to hear the case in the absence of the non-appearing party.

 

In the following, section we are going to see these different rules applied during non-appearance of a party.

 

Action Upon non-appearance of both parties

Where both parties, i.e., party plaintiff and party defendant fail to appear in court of law, when the suit is called on for hearing, the court shall make an order that the suit be struck out, or in case of appeal, that the appeal be dismissed. (Art. 69(2))

Heres the court has no discretion to adjourn the case. However, this is not the case in the Indian code of Civil Procedure. According to order IX, rule 3 of the Indian code of Civil Procedure, the court has a discretionary power to adjourn the case instead of dismissing it.

 

Action where defendant does not appear

If a plaintiff appears and the defendant does not appear, when the suit is called on for hearing, the court does not simply take action without having enough information about the non-appearance. This is because such non-appearance may be due to the fact that the defendant did not receive notice of the proceedings. Hence, where the defendant does not appear, the first question the court must ask is whether he/she was duly served or not. Then, it is up to the plaintiff to convince the court that he/she has duly served the defendant.

If the court is satisfied with the mode of service to the defendant, it automatically orders Ex-parte proceeding. (Art.70 (a)). However, we have to understand the distinction between Ex-parte proceeding made according to Article 70 of the Ci.Pr.C and Default proceeding made based on Article 233 of the Ci.Pr.C. On this point, the Federal Court of Cassation Division has made a very interesting interpretation under file15835.

 

The very interpretation of the court is, when the court should order Ex-parte proceeding and Default proceeding, what is the effect of those orders. Articles 70(a) and 233 of the code says:

Art. 70 Defendant failing to appear

Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing:

(a)    if it is proved that the summon was duly served, the suit shall be heard ex-parte;

Art. 233. - Service of statement of claim

Where there are no reasons for rejecting a statement of claim under Art. 231, the court shall cause the statement of claim and annexes to be served on the defendant together with a summons requiring him to appear with his statement of defence on a day to be fixed in the summons and informing him that the case will proceed with notwithstanding that he does not appear or that he appears without his statement of defence.

 

According to the Federal Court of Cassation Division interpretation, first we have to clearly differentiate the date for submitting statement of defence and the date of hearing. If the hypen happened on the date which is fixed for submission of statement of defence, and if it is proved that the defendant is duly served with the summon, the court should order Default proceeding based on Article 233 of the Ci.Pr.C. Whereas, if the hyphen  of the defendant is on the date which is fixed for hearing, the order of the court will be Ex-parte proceeding. We will see the effect of both proceedings later.

On the other side, if it is proved that the defendant failed to appear in court of law on the date which is fixed for hearing because he was not duly served or the summons was not served on him in any of the modes of service that is sufficient to notify him, the court will order Second summon to be served on the defendant.

 

The third possibility with regard to non-appearance of defendant is, in case where the summons was served on him in so short time that he may not be able to appear. In such cases the defendant will be served with the summons but the summons might have not been served in sufficient time, in which case the court will adjourn the hearing so that the defendant will have sufficient time to consider the allegations of the statement of claim and able to appear at the day fixed with his/her defense. But despite the fact that the defendant has not been served, if he/she appears in that day, the suit will continue.

 

Action where plaintiff does not appear

 

Where the defendant appears and the plaintiff does not, when the suit is called for hearing, the court shall make an order that the suit be dismissed, unless and otherwise the defendant, in his/her statement of defense, admits all or part of the claim. If there is admission, even though the plaintiff fails to appear, the court shall pass a decree based on that admission. If no admission by the defendant, the dismissal is mandatory, and the defendant cannot demand the suit to continue. But, sometimes the defendant may assert a claim of counterclaim or set off. In such a case, the court will proceed to hear that part of the case, since as to such counterclaim or set-off, the defendant occupies the position of plaintiff, and the rules relating to the non-appearance of the defendant apply.  Here , we can also see the interpretation of the law made by the Federal cassation court interpretation under file14184, so that we can see the difference between the date that is fixed for submission of statement of defence, in which the suit should not be dismissed and the date that is fixed for hearing, in which dismissing of suit is appropriate.

 

The problem of non-appearance may also arise in the case of multiple parties. Suppose that two plaintiffs have joined; or two defendants have been joined, and one does not appear. This situation is governed by Art. 75 of the Civil Procedure Code.

 

When does Art. 75(1) apply? Remember that the non-appearing plaintiffs have joined in the suit and are parties of record. The non-appearance does not affect the power of the court to enter a decree involving their rights. Striking out or dismissing the suit as to them would also require such action with respect to the appearing plaintiffs, since the suit cannot proceed in the absence of indispensable parties. This would be unfair to the appearing plaintiffs, and since the court may enter a decree as to non-appearing plaintiffs, it should proceed with the suit.

 

Non-appearance of one of the several defendants has also the same effect. Where one or more of the several defendants, although duly served, has failed to appear, the suit will proceed against all defendants or the suit may proceed as ex-parte against the non-appearing defendant.

Last modified on Tuesday, 12 June 2012 23:41