Hi, Fraudulent sale deed of one of my mother's houses was done by an imposter in favor of 2 buyers on 13 Mar 2023. Civil court passed an ex pare decree and declared above mentioned fraudulent sale deed to be null and void and granted by mother permanent injunction on 30 Aug 2023. Now the buyers as per the fraudulent sale deed have also filed a case of permanent injunction against my mother on 18 May 2023 (based on false claim that they are in possession of the house in question) - in this case my mother has already filed written statement and this case is still pending in civil court. One of the buyers as per fraudulent sale deed is in jail and the other is on run from police. So it is highly probable that they wouldn't appear on the future hearing dates of the above stated case of permanent injunction filed by them against my mother. And therefore their case should automatically be dismissed due to non appearance. But should my mother move an application to get their case dismissed on grounds on res judicata (sec 11 CPC)? Even this application is most likely be heard ex parte because plaintiffs are running from police/in jail. So is there any benefit of moving such an application when due to non appearance their suit itself would automatically be dismissed? Or should such an application be moved only when some lawyer appears on behalf of plaintiffs? Is there any additional benefit that could arise out of such an application? Kindly help.
First answer received in 30 minutes.
Lawyers are available now to answer your questions.
No need to make application on grounds of res Judicata
2) if Plaintiffs do not appear in person or through their lawyer for consecutive 3 dates their application would be dismissed
3) you can during arguments draw attention of court to orders passed declaring fraudulent sale deed null and void and granting mother permanent injunction
In the given circumstances as stated in query is not a case of resjudicata. An application under order 7 rule 11 cpc be filed citing proceeding and decision in previous case. As earlier case was recently disposed on 30.8.23 so defendants in said case have remedies to get exparte order and decree set aside. Defendants also have remedy to challenge order in higher court by way of appeal. In civil case parties are not required yo appear on each date. So plaintiff through their advocate can appear in the matter and can proceed their case.
- Since, the Civil Judge has already passed its judgement after declaring the sale deed of purchaser as null and void through an ex-parte decree , then the said separate suit filed by the buyer is not maintainable , as they have not approached to the said court for setting aside the ex-parte decree.
- Further, as you have already filed WS in his case , then no order can be passed against you in the initial stage of the case, and further plaintiffs appearance is needed for framing the issues
- If the Plaintiff will not appear before the court , then his case may be dismissed , and hence no need to file any application in any of the court on your behalf , as it will extend the proceeding
- Further, even if the plaintiff appears through an advocate before the court , then at the time of framing of issues his suit may be dismissed .
This will not come under res-judicata.
They filed the case during the pendency of your case hence there is no question of res-judicata .
If at all you feel that this is a false case, then you can file a petition under order 7 rule 11 to reject the plaint.
Now if they don't appear before the case and if the court feel that they are not willing to prosecute the case any further, the court may dismiss it for default.
But it will take time because yo have already filed the written statement, hence the court will frame issues and put the case for trial
If they don't show any interest in conducting the trial, then the court may dismiss the same for default.
Thanks for your valuable responses. My mother isn't the only defendant in this false civil case filed by the 2 buyers. They have made the Imposter/seller and the 2 witnesses in the fraudulent sale deed as defendants too (though as per police investigation they were all part of same gang). None of the other defendants have made an appearance or filed written statement in this case. In such scenario - is it possible that the judge might frame the issues even in the absence of lawyer of plaintiffs - on basis of plaint and written statement filed by one defendant (my mother)?
Since Plaintiff not his lawyer are appearing in court then in such a case court should dismiss the case
The issues will be framed on the basis of plaint and the written statement filed by defendants.
The appearance of advocate is immaterial
Yes, judge can frame issues in absence of parties and their advocates. Rest is matter of trial.
- If the plaintiff is not appearing then the court may dismiss the petition , and will not proceed for further trial of the case after framing issues in the absence of the Plaintiff.
Dear Client
In a civil case, if multiple defendants have been named, and some of them have not appeared or filed a written statement, the court may proceed in the following manner:
Framing of Issues: In a civil case, issues are framed based on the pleadings of the parties. Pleadings include the plaintiff's complaint and the written statements of the defendants. If some defendants have not filed a written statement, the court may still frame issues based on the pleadings of the parties who have submitted their written statements.
Ex Parte Proceedings: For defendants who have not appeared or filed a written statement, the court may proceed with ex parte proceedings. This means that the court may decide the case in the absence of these defendants. However, the court must follow due process and ensure that the absent defendants are properly served with notice of the proceedings.
Evidence: The court may consider the evidence presented by the parties who are present and have filed written statements. The court will evaluate the evidence on record to make its decision.
Judgment: Based on the pleadings and evidence, the court will deliver a judgment. This judgment will be based on the merits of the case as presented by the parties who are actively participating.
Consequences for Absent Defendants: If the absent defendants are found to be liable, the court may pass a judgment against them in their absence. However, they may have the option to apply for setting aside the ex parte judgment if they can show sufficient cause for their non-appearance.
He can frame issues if the case is deliberately prolonged by one of the parties
