Summary Procedure Flashcards
two types
- summary rpocedure in general
- summary procedure on liquid claims
summary procedure in general
sections
373 - 391
(374, 377,382,383,384,385,386,387,388)
section 374
requirments of a petition of an application under summary procedure
good and suitable paper and
a. name of the court and date of presenting the petition
b. name, description and place of abode of the petitioner
c. name, description, place of abode of respondents
d. plain and consice statement of facts consituting the ground of the application and circumstances and his right to make it
e. prayer for relief
applications to be made under summary procedure
- matrimonial actions 614 (1)
- dissolution of marriage 608 (2)
- next friend 481
- appointment of a guardian 493
- curatorship
- applications made under section 33 (2) of registration of documents ordinance
- cancellation of caveats, lis pendens, priority notices, seizure notices and seizure priority notices
section 377
- order ni si - subject to the condition that it will take effect in the event the respondent fails to show course against on a day appointed by the law for that purpose
- interlocutory - appointing a day for the determination of the matter informing the respondent that he will be heard in opposition to the petition the day appointed by the court for that purpose.
like service of summons these orders will be served
Section 382
petitioner is absent - petition is dismissed
section 383
petitioner appears, respondent does not appear, court is satisfied by affidavit or oral evidence of serving officer
- at this stage also the court can dismiss the petition
section 384
when both parties appear
affidavit or other documentary evidence - at least before 48 hours
section 385
after the respondent’s case is over the petitioner can reply and comment upon the responet’s claim
right to reply
section 386
additional evidence when admitted
* when respondent’s evidence has been taken, on the request of the petitioner, court can grant additional time for the petitioner to adduce additional evidence or
* frame issues of fact between petitioner and respondent and adjourn the matter for trial by oral evidence as regular procedure
section 387
final order
section 388
(1) Endorsement of order nisi or interlocutory
(2) Order ni si either made absolute or discharged
Can be made in part or whole
(3) According to the prayer of the petition
section 389
Cannot appeal against a final order in case of non-appearance of the respondent but court can within a reasonable time entertain an application on summary procedure of the respondent if he was prevented from appearing due to accident, misfortune or the non-serving of the order.
section 390
parties to an action of summary procedure
summary procedure on liquid claims
applicable for
debt or liquidated demand arising upon,
1. a bill of exchange
2. promisory note
3. cheque
4. an instrument or a contract in writing
if the plaintiff desires
form no. 19
section 704
- The defendant has to obtain leave from the court to appear and defend the action
In default of his obtain such leave or appear and defend in pursuance, the plaintiff shall be entitled to a decree for the sum mentioned in the summons together with the interests to the date of payment - defendant shall not be required to, for being allowed to appear and defend, pay into court or give security unless court thinks the defence is prima facie sustainable or not in good faith
705
- must file affidavit
- if the court has no sus on the application then order summons
- summons to be of short date
section 706
when leave to defend is granted
I. If the defendant pays into court the sum mentioned in the summons
II. If the court is satisfied that the defendant has disclosed a defense to the effect that it is incumbent on the holder of the document to prove consideration or such other facts, the court considers that framing and recording of issues and determination thereof are necessary.
Isquire garment industry v Sadwani
section 704 and 706 of the CPC are relevant to the question of granting leave to appear and defend unconditionally. The court should have considered the defense whether it was prima facie sustainable or the court feels reasonable doubt as to its good faith if the leave is granted to appear and defend unconditionally.
At this stage, the court is not called upon to adjudicate the merits of the case.
CW Mackie and company v Trans Lanka Investment Limited
under section 704, court is required to consider the petition and the affidavit together with any documents filed ad decide whether there is a prima facie sustainable defense. Even though there appears to be a defense, if courts is doubtful of its genuinese, the defendant may be ordered to give security. Where court feels a reasonable doubt exists as to the honesty of the defense, it is entitled to order a defendant to appear and defend- conditionally.
Kanagasabey v Kirupamurthi 62 NLR 54
when in an application of summary procedure, the respondent is noticed to appear under Section 377 (b) of the Civil Procedure Code, there is no objection to a Proctor appearing on his behalf and obtaining, on good cause shown, a date on which to file or state his objections.
Umma v Mohommad
where in an application of summary procedure, the court permits the petitioner under Section 384 of the Civil Procedure Code to give oral evidence it cannot properly refuse the respondent the same privilege or the right for the purpose of supplementing his evidence to cross examine the petitioner.
Kanagasabey v Kirupamurthi
when in an application of summary procedure, the respondent is noticed to appear under Section 377 (b) of the Civil Procedure Code, there is no objection to a Proctor appearing on his behalf and obtaining, on good cause shown, a date on which to file or state his objections
