CIVIL PROCEDURE LECTURE 10 7TH July 2006.doc

If the defendant has entered appearance they must

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If the defendant has entered appearance they must take a date and if the other party does not appear then one can take an exparte date and serve the other party. Where a suit is fixed for trial Consequences of non-attendance or where all parties attend with witnesses; the parties may choose to do nothing, take no step in the proceedings and one has to worry about the proceedings that give court power to ask parties to show cause why the suit should not be dismissed. FIXING OF DATES Once pleadings are closed and all the preliminary applications and steps are taken, the suit ought to be fixed for trial. The provisions of Order XVI give the procedure to be followed where either parties have failed to fix the suit for trial within a particular time or where having fixed the suit for trial it is stood over generally. Order XVI Rule 5 – the defendant is given the choice of fixing the suit for trial or to apply for dismissal. Every defendant who has entered appearance ought to be served but if the defendant is invited to fix a date, the obligation is in regard to the defendant who has appeared. One is required to invite the defendant whether there is a defence or not. If the party has entered appearance the matter must proceed for formal proof. Once the other party has been invited and the hearing date has been fixed Order 9b – both the plaintif and defendant are supposed to appear on the date fixed for trial. Rule 2 of 9b provides that the court may dismiss the suit where both parties don’t appear. Where only the plaintif appears, the court may proceed ex-parte. It is the duty of the plaintif to satisfy the court that notice to attend was served on the other party in good time, they have the discretion then to dismiss. Where only the defendant attends court, and if the defendant does not admit any part of the plaintif’s claim then the court shall dismiss the suit and record is reasons for dismissing. Where the defendant admits
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part of the defendant’s claim, the court will enter judgment on such admission and then dismiss the remainder of the claim, if the defendant has a counter claim then if he does not admit any part of the plaintif’s claim the Plaintif’s claim will be dismissed and the defendant will proceed to prove the counter claim against the plaintif. One will need to find out whether there was a claim for set-of, the court in this case may stay the plaintif’s claim until the counterclaim is determined and then allow for set-of. If the suit is dismissed for non –attendance, the Plaintif may bring a fresh suit but where the Plaintif does not attend the court will dismiss and the plaintif cannot bring a fresh suit. Where the suit has been dismissed for non attendance or judgment entered the parties may agree to have the judgment set aside. If a party gives good reasons why judgment entered for non-attendance should be set aside the court may allow for fresh application.
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