• Interpretation of "Hearing", what it includes

The Sub-Rule 2 of rule 105 of Order 21 of Civil Procedure Code.

I AM LOOKING FOR CLEAR CITATION ON “Interpretation OR Settle Law OR Provision under Act itself of word “Hearing” as expected in above CODE” in view of below Order sheet or Rojnama.

In Order Sheet (Rojnama) of Civil Court in my E.P., the words in Marathi Language are used, whenever the Court adjourned to the next date. The words are as below.

1). चौकशीवर (in english may be - on enquiry)
2). चौकशीवर तहकुब (in english may be - stayed on enquiry)
3). ऑर्डर करीता तहकूब (in english may be -stayed for order)
4). keep for appropriate order.

My EP is dismissed in Default and I wish to prove that my case was not kept on hearing on day of dismissal, as mentioned and expected in Sub-Rule 2 of rule 105 of Order 21 of Civil Procedure Code.

To Prove my statement, I need strong citations, which is on “interpretation of Hearing”.

You all are requested to advise me as below. Please guide on below two questions only. 

1). What things comes or falls under “Hearing”

2). Please Provide the best citations, which will be useful for me while contesting my Restoration Application + Delay Condone Application, already filed by me.

Regards.
Asked 4 years ago in Civil Law

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9 Answers

its a dismissal due to default

therefore no question of giving any hearing

if there are certain compliance which have been directed by the court to be done by a party and if that party does not comply with those directions then court can dismiss the proceeding

for such dismissal it will not afford any hearing to the defaulter

if hearing was to be given then it will be like praising the defaulter for his own default

clearly this would prejudice the other side

law is equitable

it balances the interest of both the disputing parties

if a party to whom direction is given to do certain thing and if that thing is not done as directed then clearly the consequence of it will be dismissal without any hearing

you will have to change the strategy to argue your restoration application

Yusuf Rampurawala
Advocate, Mumbai
6880 Answers
79 Consultations

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Hearing presupposes the existence of an occasion which enables the parties to be heard by the Court in respect of the cause.

2) Kanwar Singh Saini v/s High Court of Delhi [2012 (4) SCC 307].

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

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Sir the charges paid by you mean nothing to the lawyer

several lawyers try to answer to the posted query

your charges are divided among the answering lawyers which after division comes to a few rupees

so by writing in bold and capital that you have paid the charges - is not at all appropriate

the lawyers here reply on a honorary basis

So using words like 'unfortunate' etc. is not appropriate

Anyway kindly type out the dismissal order of the court for a greater perspective

section 151 pertains to inherent powers of the court

what is the reason for dismissal can be determined from the dismissal order itself

Yusuf Rampurawala
Advocate, Mumbai
6880 Answers
79 Consultations

5.0 on 5.0

if the Court has an inherent power to pass an order of dismissal, there is absolutely no reason why it should not possess a similar power to set aside the dismissal if the ends of justice render it necessary to do

2) the executing Court has inherent power not only to dismiss the applications in the execution proceedings but also to restore them to file under Section 151 Civil Procedure Code,

3)inherent power vested in Courts under Section 151 Civil Procedure Code could not be invoked where the procedure to be adopted in a particular case or class of cases was expressly provided for by the Code and that in such matters the Court could not act except under the conditions specified by the express provisions.

4) Hearing presupposes the existence of an occasion which enables the parties to be heard by the Court in respect of the cause.

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

Hello,

I am not able to find if any where the term hearing has been defined. However, general interpretation says that 'hearing' implies a date wherein the rights of the parties are to be decided after hearing the parties.

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

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You may refer to the following judgment:

https://www.casemine.com/judgement/in/5608f7e0e4b[deleted]e75

This case was also dismissed under Sub-Rule 2 of rule 105 of Order 21 of Civil Procedure Code, the decree holder went to the HC against the order of the dismissal wherein it was held that the case was not listed for hearing as per the CPC and hence could not have been dismissed under the said provision.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

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Hearing means date fixed before the court, it covers all the steps has to be taken , arguments , evidence etc. steps related to the case. Please ask your counsel to go through citation Harsukh B. Gohel V/S Vinod Kumar Bindlish decided by Hon'ble High Court at Bombay on 27th Jan.2014.

Koshal Kumar Vatsa
Advocate, Gurgaon
2283 Answers
3 Consultations

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the inherent power vested in Courts under section 151 of the CPC could not be invoked where the procedure to be adopted in a particular case or class of cases was expressly provided for by the Code and that in such matters the Court could not act except under the conditions specified by the express provisions. In this particular case, there is a specific statutory provision under Order 21 Rule 105(1) of the CPC under which the Execution Petition could be restored on sufficient cause being shown for non-appearance.

You dont have to rely on citations, it is just a restoration petition to restore the EP which was dismissed for default.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

But there are many citations which have been issued that when the matter is not on hearing then such dismissal do not attract sub-rule (2) rule 105 but then such dismissal is made under section 151 of cpc.

i hope you must got or understand above 3 paragraphs therefore to prove my case, and to restore the same , I have to make a statement that my EP IS DISMISSED UNDER SECTION 151 AND NOT UNDER RULE 105 AS THE EP WAS NOT ON HEARING.

You are reading between the lines.

First of all you should understand the meaning of hearing.

Hearing may be for trial or for any other business on that particular day.

If you have absented during the said date of hearing and there was no representation from your side, then the court has right to dismiss the same for default.

How do you say that the court has dismissed your case under section 151 CPC, have you seen the order to confirm what you say?

Instead of complicating the issue you may simply follow the laid down procedures for restoration when there is a provision in law for that.

Simply agitating over the issue will lead you to nowhere and it will be an unnecessary stress on you.

THEREFORE BY PAYING YOUR CHARGES I HAVE REQUESTED MY TWO QUESTIONS " what is hearing means" and secondly " is there citation which has interpretation of hereing " but it is unfortunate, the advocates give replies which are irrrelevent in view my brief history and questions.

Dont blame the advocates for not providing you with the desired opinion.

For your information, hearing means:

In law, a hearing is a proceeding before a court or other decision-making body or officer, such as a government agency or a Parliamentary committee. ... Limited evidence and testimony may also be presented in hearings to supplement the legal arguments;

Hearing on a motion is Motion Hearing. A Motion is a request asking a judge to issue a ruling or order on a legal matter. Usually, one side files a motion, along with notice of the motion to the attorney for the opposing party, the other side files a written response.

A hearing is generally distinguished from a trial in that it is usually shorter and often less formal. In the course of litigation, hearings are conducted as oral arguments in support of motions, whether to resolve the case without further trial on a motion to dismiss or for summary judgment, or to decide discrete issues of law, such as the admissibility of evidence, that will determine how the trial proceeds. Limited evidence and testimony may also be presented in hearings to supplement the legal arguments;

a status hearing is a meeting between the plaintiff and the defendant and their legal representation, as well as a judge or meditating party. Their goal is to get people to talk before trial to see if the issue can be settled out of court.

Hope the above clarifies.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

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