Directory_and_Chronicle_1901 — Page 390

Non-attendance

332

CODE OF CIVIL PROCEDURE-HONGKONG

CHAPTER IX.-THE HEARING Non-attendance of Purties

LXI.-When a cause in the hearing-paper has been called on, if of both Parties. neither party attend in person or by counsel, the Court, on being satisfied that the plaintiff has received notice of the hearing, shall, unless it sees good reason to the contrary, strike the cause out of the hearing-paper.

Of Plaintiff,

Of Defendant.

Further Service,

When Court may proceed ez parte.

Re-hearing for absent Defendant.

Restoration of Cause to Hear- ing List for Plaintiff.

Non attendance of Plaintiff' a second Time.

Peremptory Order,

Effect of Dis.

missal of Suit

in such Cases.

Etatement of Pleadings

2.-If the plaintiff does not attend in person or by counsel, the Court, on being satisfied that the plaintiff has received notice of the hearing, shall, unless it sees good reason to the contrary, strike out the cause, and make such order as to costs in favour of any defendant appearing as seems just. 3.-If the plaintiff attends, but the defendant or any of the defendants does or do not attend in person or by counsel, the Court shail, before hearing the cause, inquire into the service of the writ of summons and petition and of notice of hearing on the absent party or parties.

4.-If not satisfied as to the service on every party, the Court shall direct such further service to be made as it shall think fit, and adjourn the hearing of the cause for that purpose.

5. If satisfied that the defendant or the several defendants has or have been duly served with the writ of summons and petition, and with notice of the hearing, the Court may proceed to hear the same notwith- standing the absence of the defendant or any of the defendants, and may, en the evidence adduced by the plaintiff, give such judgment as appears just. The Court, however, shall not be bound to do so, but may order the hearing to stand over to a further day, and direct fresh notice to be given to the defendant or defendants in case justice seems to require an adjournment.

6. In all cases where the plaintiff has obtained leave to proceed ex parte for want of appearance to the writ of summons, and in all other cases where tlie Court hears a cause and judgment is given in the absence of and against any defendant, the Court may afterwards, if it thinks fit, on such terms as seem just, set aside the judgment and re-hear the cause, on its being established by evidence on oath to the satisfaction of the Court that the defendant's absence was not wilful, and that he has a defence upon the merits.

7.-Where a cause is struck out by reason of the absence of the plaintiff, it shall not be restored without leave of the Court, until it has been set down again at the bottom of the general hearing list, and been transferred in its regular turn to the hearing-paper.

8.-Where a cause has been once struck out, and has been a second time set down, and has come into the hearing-paper, and on the day fixed for the hearing the plaintiff, having received due notice thereof, fails to attend either in person or by counsel when the case is called on, the Court, on the application of the defendant, and if the non-attendance of the plaintiff appears to be wilful and intended to harass the defendant, or to be likely to prejudice the defendant by preventing the hearing and deter- mination of the suit, may make an order on the plaintiff to show cause why a day should not be fixed for the peremptory hearing of the cause; and on the return to that order, if no cause, or no sufficient cause be shown, the Court shall fix a day accordingly upon such notice and other terms as seem just.

9. In case the plaintiff does not attend on the day so fixed, either in person or by counsel, the Court shall, unless it sees good reason to the contrary, order judgment to be entered for the defendant,

Order of Proceeding

LXII.—The order of proceeding at the hearing of a cause shall be as

follows:-

1.-The plaintiff shall state the pleadings.

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