Rule 45. Procedure and execution of orders

(1) Application -(i) every proceeding under section 49 shall be instituted by presenting an application to the Court;

(ii) every such application shall be verified in the same manner as a pleading in a Civil Court and shall be accompanied by two copies thereof;

(iii) an application shall be presented in Form-I. It shall be duly stamped in accordance with these rules, and shall contain the following particulars, namely:–

(a) the name of the Court in which the application is brought;

(b) the full name including the father's name, description including age, occupation and place of residence of the applicant;

(c) the full name including the father's name, description including age, occupation and place of residence of the opposite party so far as they can be ascertained;

(d) where the applicant or the opposite party is a minor or a person of unsound mind a statement to that effect and the full name, age, occupation and address of his or her next friend or guardian;

(e) the facts constituting the cause of action and the date when it arose;

(f) the facts showing that the court has jurisdiction;

(g) particulars giving the address within the jurisdiction of the Court at which notice or summons may be served on the applicant; and

(h) the relief which the applicant claims. the application may be rejected if it is not in accordance with clause

(iii).

(2) Production of documents -

(i) when any application is based upon documents, the document shall be appended to the application;

(ii) any other document which any party desires to tender in evidence shall be produced at or before the first hearing;

(iii) any document which is not produced at or within the time specified in clause (i) or (ii), as the case may be, shall not, without the permission of the Court, be admissible in evidence on behalf of the party who should have produced it;

(iv) all such documents shall be accompanied by an accurate list thereof prepared in the manner prescribed in Form-II;

(v) nothing in this rule shall apply to any document which is produced for the purpose of cross-examining witness or is handed to a witness to refresh his memory.

(3) Register of proceeding- All applications shall be entered in a register in Form-III, called the register of proceedings. Such entries shall be serially numbered for every calendar year according to the order in which the applications are presented.

(4) Place of suing- A proceeding against any person shall be instituted in the Court within the local limits of whose jurisdiction –

(i) the opposite party or each of the opposite parties, where there are more than one, at the time of commencement of the proceedings actually and voluntarily resides, or carries on business, or personally works for gain; or

(ii) any of the opposite party, where there are more than one, at the time of the commencement of the proceeding, actually and voluntarily resides, or carries on business, or personally works for gain:

Provided that in such case either the leave of the court is given, or the opposite parties who do not reside, or carry on business or personally work for gain as aforesaid, acquiesce in such institution; or

(iii) the cause of action, wholly or in part, arose.

(5) Application presented to wrong Court -(i) if on receiving an application it appears to the Court that it should be presented to another Court, it shall return it to the applicant after endorsing upon it the dates of the presentation and return with the reasons for returning it and the designation of the Court to whom it should be presented;

(ii) if it appears to the court at any stage subsequent to the presentation of an application, that the application should have been presented to another Court, in the same State, it shall send the application to the Court empowered to deal with it and shall inform the applicant and the opposite party, if he has received a copy the application, accordingly;

(iii) the Court to whom an application is transferred under sub-rule (2) may continue the proceeding as if the previous proceeding or any part of it had been taken before it, if it is satisfied that the interests of the parties will not thereby be prejudiced.

(6) Issue of summons –

(i) on receiving an application the Court shall, if the same has not been rejected, within twenty days thereof, cause to be sent to the party from whom the applicant claims relief (hereinafter referred to as the 'opposite party’), a summons in Form-IV or Form-V, as the case may be to appear and answer the application in a day, not later than fifteen days from the day of issue of such summons, to be specified therein:

Provided that no such summons shall be issued when the opposite party has appeared at the presentation of the application and admitted the applicant's claim;

(ii) a copy of the application shall also be sent along with the summons under clause (i).

(7) Service of summons or notice –

(i) a summon or notice may, on payment of the required fee, be sent by the Court by whom it is issued either by registered post or in such other manner as the Court thinks fit;

(ii) where the Court is satisfied that there is reason to believe that the opposite party is avoiding service or that for any reason the summons or the notice cannot be served in the ordinary way, the Court shall order the summons or the notice to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house in which the opposite party is known to have last resided or carried on business or personally worked for gain or in such other manner as the Court thinks fit and it shall be effectual as if it had been made on the opposite party personally;

(iii) where a summon or notice is served under this clause, the Court shall fix such time for the appearance of the opposite party as the circumstances of the case may require.

(8) Additional matters in the summon -

(i) the Court shall determine at the time of issuing the summons, whether it shall be for the settlement of the issues only and /or for the final disposal of the application and the summons shall contain a direction accordingly;

(ii) the Court may also call upon the parties to produce upon that date any evidence which they wish to render.

(9) Where, in any proceeding before the court, a disablement question, as defined in Section 37 of the Code, arises and the decision of a medical board or a medical appeal tribunal on such question has not been obtained, the Court shall, before proceeding to determined the claim or such question, direct the Employees State Insurance Corporation that the question be decided in the manner laid down in Section 37, and shall their after proceed with the determination of the claim or question in accordance the section 49 of the Code.

(10) Written statement –

(i) the opposite party may, and, if so, required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defense along with the documents on which he relies and an accurate list thereof in Form-II;

(ii) every such written statement shall be verified in the same manner as a pleading in a Civil Court and shall be accompanied by two copies thereof;

(iii) in any written statement submitted under clause (i), the opposite party shall deal specifically with each allegation of fact alleged by the applicant, of which he admits or does not admit or denied the truth. The written statement must also contain all matters which show that the application is not maintainable and all such grounds of defense as, if not raised, would be likely to take the application as for instance, fraud, undue influence or coercion release, payment, performance of facts showing illegality of the transaction.

(11) Failure to present written statement called for by the Court- Where any party from whom a written statement is required fails to present the same within the time prescribed by the Court may, pronounce judgment against him or make such order in relation to the proceeding as it thinks fit.

(12) Framing of issues-

(i) at the first hearing of the application, after the summons has been issued, the Court shall, after considering the application and the written statement, if any, or after such examination of the parties or any person or any document as may appear necessary, ascertain upon what material proposition of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues upon which the right decision appears to depend;

(ii) in recording the issues, the Court shall distinguish between those issue which in its opinion concern points of fact and those which concern points of law;

(iii) the Court may, in like manner, at any time before passing its final order add to, strike out from, or in any way amend, the issues on such terms as it may think fit.

(13) Order where parties are not at issue - Where at any hearing of the case it appears that the parties are not at issue on any question of law or of fact the Court may at once pronounce its final order.

(14) Appearance of parties and consequences of non-appearance –

(i) on the day fixed in the summons for the opposite party to appear and answer the parties shall be in attendance at the Court in person or by their respective legal practitioners or any other person authorized under section 51 and the application shall then be heard unless the hearing is adjourned by the Court;

(ii) when neither party appears, when the application is called on for hearing, the Court may make an order that the application be dismissed;

(iii) where the opposite party appears and the applicant does not appear when the application is called on for hearing, the Court may make an order that the application be dismissed unless the opposite party admits the claim or part thereof in which case the Court may make an order against the opposite party upon such admission and where party only of the claim has been admitted it shall dismiss the case so far as it relates to the remainder;

(iv) where the applicant appears and the opposite party after receiving the summons fails to appear, when the application is called on for hearing the Court may proceed ex-parte;

(v) where the application is wholly or partly dismissed under clause (ii) or (iii), the applicant may within thirty days of such dismissal apply in Form-VI for an order to set the dismissal aside and the Court shall, if it is satisfied that he was prevented from appearing when the proceeding was called on for hearing due to any sufficient cause, make an order setting aside the dismissal upon such terms, as to costs or otherwise as it thinks fit, and may proceed with the case or appoint a day for proceeding with the same :

Provided that no order under this clause shall be made in respect of an application which is dismissed under clause (iii), unless notice of the application has been served in Form-VII on the opposite party;

(vi) in any application in which an ex-parte order has been passed against the opposite party, he may within thirty days from the date of such order apply in Form-VI to the Court which passed the order, to set it aside and, if the Court is satisfied that he was prevented from appearing when the proceedings was called on for hearing due to any sufficient cause, it may after serving notice thereof to the applicant in Form-VII make an order setting aside the order upon such terms as to costs or otherwise as it thinks fit and may proceed with the hearing of the case or appoint a day for proceeding with the same.

(15) Summoning of witness -

(i) at any time after framing of the issues the Court may call upon the parties to produce their evidence in support of the issues;

(ii) the Court may, on the application of either party issue a summons in Form VIII to any witness directing him to attend or to produce any document;

(iii) the Court may, before summoning any witness on application under clause (ii), require that his reasonable expenses to be incurred in attending the Court be deposit with it.

(16) Grant of time and adjournment of hearing –

(i) the Court may, if sufficient cause is shown, at any stage of the proceeding, grant time to the parties or to any of them, and may, from time to time, adjourn the hearing of the application;

(ii) in every such adjournment the Court shall fix a day, not exceeding fifteen days from the date on which such adjournment is made for the further hearing of the application and may make such order as it thinks fit with respect to the costs occasioned by the adjournment:

Provided that, where the hearing of the application has once begun, the hearing shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court, for the reasons to be recorded in writing considers it necessary to adjourn the hearing beyond the following day.

(17) Right to begin proceeding- The applicant has the right to begin unless the opposite party admits the facts alleged by the applicant and contends that either in point of law or on some additional facts alleged by the opposite party, the applicant is not entitled to the relief which he seeks, in which case the opposite party has the right to begin.

(18) Statement and production of evidence –

(i) on the day fixed for the hearing of the application or on any other day to which the hearing is adjourned, the party having the right to begin shall State his case and produce his case and produce his evidence in support of the issues which he is bound to prove;

(ii) the other party, shall, then State his case and produce his evidence, (if any) and may then address the Court generally on the whole case;

(iii) the party beginning may then reply generally on the whole case;

(iv) notwithstanding anything contained in this rule, the Court may, order that the production of evidence or the address to the Court may be in any order, which it may deem fit.

(19) Method of recording evidence- The evidence of each witness shall be taken down in writing by the Judge or where there is more than one Judge by the junior Judge, or at the dictation of any such Judge in the open Court in the language of the Court, not ordinarily in the form of question and answer, but in that of a narrative and, when completed, shall be read over or translated, where necessary, in the presence of such Judge, to the witness, and such Judge shall if necessary, correct the same, and shall sign it.

(20) Recall of a witness- The court may, at any stage of a proceeding recall any witness, who has been examined and may (subject to the law of evidence for the time being in force) put such question to him, as the Court thinks fit.

(21) Inspection by Court - The Court may at any stage of a proceeding, inspect any property or thing concerning which any question, may arise.

(22) Pronouncement of order - The Court, after the application has been heard, shall pronounce its final order in open Court, either at once or on some future day, of which due notice shall be given to the parties.

(23) Signing of order - The final order shall be dated and signed in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save in the case of clerical or arithmetical mistake arising from accidental slip or omission.

(24) Statement of decision on each issue - In cases, in which issues have been framed, the Court shall State its finding or decision, with the reason there for, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the case.

(25) Compromise of suit - Where it is proved to the satisfaction of the Court that a case had been adjusted wholly or in partly by any lawful agreement or compromise, or where the opposite party satisfies the applicant in respect of the whole or any part of the subject matter of the case, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass final order in accordance therewith so far as it relates to the case.

(26) Finality or Order- Save as provided in section 52 the order of a Court shall be final and binding upon the parties.