HEARING IN ABSENCE OF PARTY

LAND LAW PROJECT

ON

HEARING IN ABSENCE OF PARTY

SUBMITTED TO:
DR. PARVESH K. RAJPUT
(FACULTY OF LAND LAW)
SUBMITTED BY:
HIMANSHU KUNJAM
ROLL NO. 60
SECTION C
SEMESTER VIII, B.A. LLB(HONS.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

UPARWARA POST, ABHANPUR, NEW RAIPUR – 493661 (C.G.)

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ACKNOWLEDGEMENT

I feel highly elated to work on this dynamic and highly popular topic on “Hearing in Absence of
party” which had played a pivotal role in the Land law studies. As this topic drew my attention
and attracted me to choose this as a project topic and examine it.

Firstly I express my deepest gratitude towards Dr. Pravesh K. Rajput, Faculty of Land Law, to
provide me with the opportunity to work on this project. Her able guidance and supervision were
of extreme help in understanding and carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.
Some printing errors might have crept in which are deeply regretted. I would be grateful
to receive comments and suggestions to further improve this project.

Himanshu Kunjam

Semester- VIII

Roll No. 60

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TABLE OF CONTENTS

 Introduction………………..............................................................................................4

 Section -35 of CGLRC…………………………………………………………………6

 Explanation of sec -35…………………………………………………………………..7

 Conclusion.......……………………………………………………………….………..11

 Bibliography………………………………………………………………………..….12

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INTRODUCTION

A Hearing in absence of party term used in the Chhattisgarh Land Revenue Code, 1959 for

describing about the ex-parte decree passed against the defendant.. Section 43 of Chhattisgarh

Land Revenue Code, 19591 Code of Civil Procedure to apply when No Express provision made

in this code. The provisions of the Civil Procedure Code are based on a general principle that, as

far as possible, no proceeding in a court of law should be conducted to the detriment of any party

in his absence. Order IX of the Code enacts the law with regard to the appearance of the parties

to the suit and the consequences of their non-appearance 2. It also provides a remedy for setting

aside an order of dismissal of the suit as also the setting aside of an ex-parte decree passed

against the defendant.

An ‘Ex parte decree’ is a decree passed against a defendant in absentia. Despite service of

summons, where on the date of hearing only plaintiff does and a defendant does not appear the

Court may hear the suit ex parte and pass a decree against the defendant. The legal validity,

enforceability and operation of such decree is similar to any bi-parte decree.

The various provisions in the Code of Civil Procedure, 1908 pertaining to ex parte decree. Part I

of the article enumerates the nature of an ex parte decree and cause of an ex parte decree. Part II

titled Relief Available against an ex party. Order 9 of CPC lays down the rule regarding

appearance and the consequences of non- appearance of party in hearing.

1
Chhattishgarh Land revenue code ,1959

2
Code of Civil procedure 1908
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Research Methodology
Objectives of study
The objective of this project is:
1. To study the concept of Ex- parte .
2. To understand the rights and liabilities in Hearing in absence of party.

Methodology

This research project is descriptive in nature. Accumulation of the information on the topic includes
wide use of primary sources such as cases as well as secondary sources like books, articles etc. The
matter from these sources have been compiled and analysed to understand the concept.

Websites and dictionary have also been referred to understand things in a better way.

Mode of Citation

This project follows a uniform Bluebook 19th Ed. Citation format for footnotes and bibliography.

Scope of Study

Due to time constraint this project aims to cover the concept of Hearing in absence of party
under Chhattisgarh land revenue code in a nutshell. This project does not cover in detail each
mode. It also covers the provision given in CPC 1908.

SECTION 35 OF THE CHHATTISHGARH LAND REVENUE CODE, 1959

(1) If on the date fixed for hearing a case or proceeding, a Revenue Officer finds that a summons
or notice was not served on any party due to the failure of the opposite party to pay the requisite

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process fees for such service, the case or proceeding may be dismissed in default of payment of
such process fees.

(2) If any party to a case or proceeding before a Revenue Officer does not appear on the date
fixed for hearing after due service of a notice or summons on him the case may be heard and
determined in his absence or may be dismissed in default, as the case may be.

(3) The party against whom any order is passed under sub-section (1) or (2) may apply within
thirty days from the date of such order or knowledge of the order in case the notice or summons
was not duly served, to have it set aside on the ground that he was prevented by any sufficient
cause from paying the requisite process fees for service of a summons or notice on the opposite
party or from appearing at the hearing and the Revenue Officer may, after notice to the opposite
party which was present on the date on which such order was passed and after making such
inquiry as he considers necessary, set aside the order passed.

(4) Where an application filed under sub-section (3) is rejected, the party aggrieved may file an
appeal to the authority to whom an appeal lies from an original order passed by such officer.

(5) Except as provided in sub-section (4) or except where a case or proceeding before any
Revenue Officer has been decided on merits, no appeal shall lie from an order passed under this
section.

EXPLANATION

 Revenue officer is describe under the chhattisgarh land revenue code , 1959 under section 11
of chapter III. Section 35 provides a procedure for the court to proceed when on the date
fixed for hearing some default Is committed. The important fact is that there should be a date
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fixed for hearing. applies where the Revenue Officer finds that on the date fixed for hearing,
summons or notice was not served on any party due to the failure of the opposite party to pay
the requisite process fees for such service. It is one kind of default and the penalty provided
for such default is that the Revenue Officer may dismiss the proceeding for such default. It
may, however, be noted that it is not incumbent upon the officer to dismiss the proceeding. It
is discretion-ary and_ the officer, being a Court, should act judiciously.

 Sub-section (2) provides for a contingency where any of the parties does not appear on the
date fixed for hearing. Here again, there .must a date fixed for hearing. As far as the non-
applicant is con-cerned, the sub-section applies where he does not appear after due service of
a notice or summons on him.

 Where the proceedings are dismissed for default in paying the process fees, the applicant has
to allege and satisfy the court that he was prevented by any sufficient cause from paying the
requisite process fees. Where the proceedings are dismissed for default in appearance on the
date of hearing, he has to make an application for restoring the same alleging therein that he
was prevented by any sufficient cause from appearing on such date.

 On receipt of an application for setting aside an order passed either under sub-section (1) or
sub-section (2) either from the ap-plicant or from the non-applicant, the court has to give
notice of such application to the opposite party. The court is required to make such enquiry as
it thinks necessary after going through the application and its reply. If neces-sary, the parties
may be ordered to produce evidence in support of the allegations made in the application or
its reply.

 Sub-section (4) provides that an appeal shall lie against an order of rejection passed on an
application made under sub- section (3). An application under sub-section (3) is made either
for restoration of proceedings which are dismissed for default or for setting aside an ex-party
order. It therefore becomes clear that rejection would mean rejection of any application,
whether made by the applicant or the non-applicant, appeal would lie. Sub-section (5) flirt
her says that no appeal, excepting that. which is provided for in sub-section (4), would lie
against any order passed under this section. The only exception would be an appeal which is
filed against such order of the Court which is passed on merits.
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DATE OF HEARING

No ex parte order can be passed on a date which was given by the reader; Ramvilas v.
Shivnarayan, 1995 RN 225 (Revenue). Case fixed for hearing by the reader. It cannot be
dismissed for default of appearance. Liberal view to be taken in restoration matters. Party should
not he penalised for default of counsel. A date given by Superintendet of Commissioner's office
is not a date given by the Court.

A person applied for being made a party in the appeal. His application was rejected. He filed an
application for review. On the date fixed for arguments on this review application the appellant
was absent. Held: The appeal could not be dismissed in default on such date, The Court could
decide the review application in absence of the appellants Where by the notice a date of hearing
was, fixed which was a holiday, a fresh notice should be issued. The case cannot be niade exparte
on the basis of such notice lint a holiday.

EEFECTS OF NON – APPEARANCE

Appeal decided on merits in absence of appellant-Application for restoration does not lie. Onlu
appeal against the order is competent-If a party to a case or proceeding before the revenue officer
does not appeal on the date for hearing, the case may be heard and determined in his absence or
may be dismissed in default. If on the date fixed for hearing the appellant does not appear, the
revenue officer has two options, i.e. either to hear and determine the appeal in the absence of the
party or dismisses the same in default. Under sub- section (4) where an application for
restoration of appeal dismissed in default. is rejected, the party aggrieved may file an appeal to
the authority to whom an appeal lies from an original order passed by such an officer. Under sub-
section (5), except where a case or proceeding before any revenue officer has been decided on
merits, no appeal shall lie from an order passed under this section. Thus, application for
restoration of an appeal can lie only when the appeal is dismissed in default.
The remedy of the appellant lies in filing an appeal agaimi that order and an application for
restoration is not maintainable. Dhararnsi Bhai v. State of M.P.3

3
2004 (1)MPLJ108 =2004 RN74
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Hearing date and place.-

Where case was fixed to be heard at Sagar for convenience of parties, the date of hearing and its
place cannot be changed without proper notice to the interested parties. Ex parte order passed in
such cases should be set aside. Rani Bahu vs State of M.P.4

Notice or summon was not duly served.- In Schedule 1, certain rules are given which provide for
issue of summons and their service. A notice or summon should be issued and served in the
manner provided therein. If service is not effected in the manner provided therein, it will be
deemed that the summons was not duly served.

Under rule 6 of the rules made under section 41 for the service of summons, a Kotwar cannot be
required to serve a summons. case cannot be made ex-parte on the basis of service by affixture
made by a Kotwar. It is well settled that in the case of an ex-parte order grounds for absence
cannot be made the subject matter of appeal. But where there is a defect in service of the
summons, an appeal against the ex-parte order on that ground is not barred. Sub-section (1) of
section 42 puts no restriction on the scope of the first appeal except the one contained in section
42 of the Code. But defects in the service of the summons not covered by section 42.
Proceedings are prima facie illegal where the same is preceded against ex-parte without service
of notice.

Notice to the opposite party

In sub-section (3), while powers are conferred for setting aside an order passed either under sub-
section (1) or under sub-section (2), two conditions have got to be satisfied. One is that on
receipt of an application requesting setting aside of such an order, notice should be given to the
opposite party who was present on the date when the impugned order was passed. The provision

4
2003 RN 24 HC
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is mandatory and no application should be decided without giving such notice to the opposite
party.

On the disputed lands, names of respondents were entered. The petitioner made an application
for mutation of his name on this land. Without giving notice to the respondents, the Naib-
Tahsildar passed the order of certification. This order was set aside by the Board of Revenue.
Order of Board held legal. Phularcun v. Narb-aria Bai.5

CONCLUSION

A Hearing in absence of party term used in the Chhattisgarh Land Revenue Code, 1959 for
describing about the ex-parte decree passed against the defendant. When an ex-parte order
passed was set aside, the parties should be placed in a position when such an order was passed. It
is not necessary that an affidavit should be filed along with an application for restoration of a
case dismissed for default. A party against whom an ex-parte order has been passed, has a right

5
1965 JLJ SN136
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to participate in further proceedings but has no right to claim re-opening of the proceedings
proceeded in his absence. Even where a party is absent, the Revenue Officers can pass orders on
merit the Public Trust Act, makes the Civil Procedure Code applicable to the proceedings under
the Act, in so far as the provisions of the Code are not inconsistent with anything contained in the
Act. The procedure provided in the Land Revenue Code is not applicable to the proceedings
under the Act. The Sub- Divisional Officer and the Registrar both acted in excess of jurisdiction
in passing orders under section 35 (1) of the 'Land Revenue Code.

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BIBLIOGRAPHY

Books

 M.L. Jindal, M.P./Chhattisgarh Land Revenue Code, 1959, 4th ed., 2006
Rajkamal Publication, Indore

 Dvivedi, Harikisan Nivas, Commentary on Madhya Pradesh Land Revenue

Code, 11th Edn. , 1989,Law Journal Publication, Gwalior

Legislations

 CG Land Revenue Code, 1959.

Websites

 www.nlsenlaw.org

 www.legalserviceindia.com

 www.thehindubusinessline.com

 www.offstumped.wordpress.com

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