1937_CODE_OF_CIVIL_PROCEDURE_ORDINANCE — Page 74

768

No. 3 of 1901.

CODE OF CIVIL PROCEDURE.

Ordinance No. 16 of 1911.

Trial ex parte.

H.K. Code, s. 61 (5).

Re-trial of cause for absent defendant in certain cases.

H.K. Code, s. 61 (6).

Procedure where cause struck out for absence of plaintiff. H.K. Code, s. 61 (7).

Default of appearance by plaintiff a second assignee for the recovery of money lent by the money-lender or the enforcement of any agreement or security relating to any such money, the court may exercise the powers of the court under sub-section (1) of section 2 of the Money-lenders Ordinance, 1911.

301. If it is satisfied that the defendant has been duly served with the writ of summons, the statement of claim and notice of trial, the court may proceed to try the cause notwithstanding the absence of the defendant and may, on the evidence adduced by the plaintiff, give such judgment as may seem just. The court, however, shall not be bound to do so but may, if it thinks fit, order the trial to stand over to a further day, on such terms as may seem just, and direct fresh notice to be given to the defendant.

302. In any case 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 the court tries 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 may seem just, set aside the judgment and re-try the cause on its being established by evidence upon oath, to the satisfaction of the court, that the defendant's absence was not wilful and that he has a defence on the merits.

303.-(1) Where a cause has been struck out of the trial paper by reason of the absence of the plaintiff the court may, on the application of the defendant made within seven days after such striking out, make an order on the plaintiff to show cause why a day should not be fixed for the peremptory trial of the cause; and on the return to that order, if no sufficient cause is shown, the court shall fix a day accordingly, with such notice of trial and on such other terms as may seem just.

(2) If no such application is made the cause may be restored, with leave of the court.

(3) On such leave being obtained the cause shall be set down again at the bottom of the general trial list and be transferred in its regular turn to the trial paper.

304. Where a cause has been once struck out and has been a second time set down and has come into the trial paper, and on the day fixed for the trial the plaintiff, having received due