Thailand Civil Procedure Code-Section 170-188

BOOK II
PROCEDURE OF COURTS OF FIRST INSTANCE

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TITLE I
ORDINARY PROCEDURE OF COURTS OF FIRST INSTANCE

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Section 170. No case shall be filed, tried and adjudicated for the first time in or by any court other than a court of first instance, unless otherwise expressly provided by law.

Subject to the provisions of this Book governing non-contentious cases, petty cases, default and arbitration, the filing, trial and adjudication of a case in a court of first instance shall, in addition to the general provisions of Book I, also be governed by the provisions of this Title.

Section 171. Where it is provided by this Code that a case may be filed with a court of first instance or a question may be submitted to a court of first instance for adjudication in the form of an application, the provisions of this code governing the rights and duties of the plaintiff and defendant and the procedure following the filing of a plaint shall apply, mutatis mutandis, to the applicant and the opposing party, if any, and to the procedure following the filing of the application.

Section 172. Subject to the provision of section 57, the plaintiff shall submit his or her claims in the form of a plaint in writing with a court of first instance.

A plaint shall clearly set forth the nature of the plaintiff’s claims and of the requests for enforcement, as well as the allegations on which such claims are based.

The court shall examine the plaint and order to accept or dismiss or return it as provided by section 18.

Section 173. When the court has accepted a plaint, it shall issue a writ of summons to answer to be served on the defendant together with a copy of the plaint, and within seven days from the date of the filing of the plaint, the plaintiff shall apply to a competent authority for the service of such summons.122

From the time at which the plaint has been filed, the case is pending trial and in consequence  thereof:

1. the plaintiff shall be prohibited from filing a plaint on the same matter with the same court or another court; and
2. if there is any change in the circumstances concerning the filing of the case with the court having jurisdiction over the case, such as a change in the defendant’s domicile, such change shall not deprive the court accepting the case of the competence to try and adjudicate the case.

Section 174. The plaintiff shall be deemed to have abandoned his or her plaint in the following cases:

(1)123 After the plaint has been submitted, the plaintiff fails to apply to a competent authority for the service of a writ of summons to answer on the defendant and fails to notify the court of the reason of such failure within seven days from the date of the filing of the plaint;

(2) The plaintiff fails to proceed with the case within a period of time as the court sees fit to prescribe for that purpose by an order duly served on the plaintiff.

Section 175. Before the defendant files his or her answer, the plaintiff may withdraw his or her plaint by filing a written notice with the court.

After the defendant has filed the answer, the plaintiff may file a request in the form of a motion with the court of first instance for permission to withdraw the plaint. The court may or may not grant such request or may grant such request upon conditions as it sees fit, but:

1. the court shall not grant such request without prior hearing of the defendant or an interpleader, if any,
2. in the case where the plaintiff withdraws the plaint because there is an agreement or compromise with the defendant, the court shall grant such

Section 176. The abandonment or withdrawal of a plaint shall invalidate the effect of the filing of such plaint, including other proceedings carried out subsequent to such filing, and shall cause the parties to be restored to the condition in which they were previously as if such filing had not been made. However, any plaint which has already been abandoned or withdrawn may be re-filed subject to the provisions of the law governing prescription.

Section 177. When a writ of summons and plaint have been served on the defendant, the defendant shall prepare and file an answer in writing with the court within fifteen days.124 The defendant shall clearly set forth in the answer that the defendant admits or denies

the whole or part of the plaintiff’s allegations, including the reasons for such denial.

The defendant may make a counterclaim in the answer; provided, however, that if the counterclaim is not related to the original plaint, the court shall order the defendant to file a separate case.

The court shall examine the answer and order to accept or return or reject it as provided by section 18.

The provision of this section shall apply, mutatis mutandis, to a third party who is summoned to appear as an interpleader under section 57 (3).

Section 178.125 If the defendant makes a counterclaim in his or her answer, the plaintiff shall prepare and file an answer to the counterclaim with the court within fifteen days from the date on which the answer has been served on the plaintiff.

The provision of the preceding section shall apply, mutatis mutandis, to such answer to a counterclaim.

Section 179. The plaintiff or defendant may amend any claim, defense, allegation or contention specified in the plaint or answer first submitted to the court.

Such amendment may, in particular, be made for the purpose of:

1. increasing or decreasing the amount or value of the property in dispute in the original plaint; or
2. waiving some claims in the original plaint, or supplementing the original plaint for completion by submitting a supplementary plaint or submitting a plaint intended to secure the protection of his or her rights during trial or to enforce a judgement or order; or
3. raising a new defense against the original claim or claim subsequently filed, or amending any allegation or contention to support or rebut the claim of the opposing

However,  no  party  may  submit  a  plaint  to  a  court,  whether  in  the  form  of  a supplementary plaint or counterclaim after the original plaint has been filed with the court, unless there is sufficient connection between the original plaint and the subsequent plaint to justify joining them together for trial and adjudication.

Section 180.126 An amendment to a plaint or answer already submitted to a court shall be made in the form of a motion filed with the court before the date of settlement of issues or not less than seven days before the date of taking evidence in the case where there is no settlement of issues, unless the motion could not be filed sooner due to valid reasons or the amendment involves public order or the purpose of the amendment is to correct minor errors or minor mistakes.

Section 181.  Except for cases where such motion may be made ex parte,

1. no order shall be issued to accept the amendment unless a copy of the motion has been served on the opposing party at least three days prior to the date scheduled for the consideration of such motion;
2. the court shall not render a judgement or order adjudicating the issues with respect to which the party has amended the plaint or answer, unless the opposing party has a full opportunity to examine, contend and rebut the new claims or defences, or the new allegations or contentions specified in the motion of

Section 182.127 When a plaint, answer and answer to a counterclaim, if any, have been filed, the court shall settle the issues by notifying the date of settlement of issues to the parties not less than fifteen days in advance, except in the following cases:

1. Any of the defendants is in default of answer;
2. The answer of the defendant expressly admits the plaintiff’s plaint in its entirety;
3. The answer of the defendant denies all of the plaintiff’s allegations without any reason for such denial and the court views that it is unnecessary to settle the issues;
4. The court finds that it is appropriate to adjudicate the whole case without taking evidence;
5. The case of a petty case under section 189 or a simple case under section 196;
6. The case in which the court views that the issues in dispute are simple or it is unnecessary to settle the issues.

In the case where no settlement of issues is required, the court shall issue an order to stay the settlement of issues and determine the date of taking evidence, if any, and shall have the order served on the parties for acknowledgement under section 184, unless any party has become aware or is deemed to have become aware of such order.

The parties may define the issues in dispute by filing  a mutual statement with the court. In this case, the issues to be settled shall be determined accordingly. However, if the court  views  that  such  statement  is  not  correct,  it  shall  have  the  power  to  issue  an  order dismissing such statement and proceed with the settlement of issues under section 183.

Section 182 bis.128   (Repealed)

Section 183.129 On the date of settlement of issues, the parties shall appear before the court and the court shall examine the pleadings and statements of the parties. The court shall then compare the allegations and contentions appearing in the pleadings and statements of the parties and ask all parties about the allegations, contentions and evidence to be filed with the court, in particular, whether and how any party admits or disputes such allegations and contentions. Any fact admitted by the parties shall be conclusive accordingly. With regard to a point of law or fact raised by a party but is not admitted by the pleading of the other party and is directly relevant to the issues in dispute in the pleadings, the court shall set it as a point of issue to be settled and direct any party to adduce evidence to prove any issues in any order of sequence.

In the questioning of the parties under paragraph one, each party must answer questions put to him or her by the court itself or at the request of the other party, about facts raised by the other party as allegations, contentions and evidence to be filed with the court. If any party does not answer the question related to any fact or denies any fact without valid reason, he or she shall be deemed to admit such fact unless such party is not capable of providing an answer or a reason for such denial at such time.

The parties shall be entitled to object to the correctness of the issues in dispute or burden  of proof  as directed  by the  court by making  an  oral statement before  the court  at such time or filing a motion with the court within seven days from the date on which the court orders to determine the issues in dispute or burden of proof. The court shall decide the objection before the date of taking evidence. The decision on the objection shall be subject to section 226.

Section 183 bis.130 In the case where all or either party does not appear before the court on the date of settlement of issues, the  court  shall  proceed  with  the  settlement  of issues and the party not appearing before the court shall be deemed to have acknowledged the proceedings carried out on that date.

The party not appearing before the court shall not be entitled to object to the correctness of the issues in dispute and burden of proof as directed by the court, unless there is unavoidable necessity for such inability to appear in the court on the date of settlement of issues or the objection involves public order, in which case section 183, paragraph three shall apply, mutatis mutandis.

Section 183 ter.131   (Repealed)

Section 183 quater.132    (Repealed)

Section 184.133 In the case where there is settlement of issues, the court shall determine the date of taking evidence which shall not be earlier than ten days from the date of settlement of issues.

In the case where there is no settlement of issues, the court shall issue a summons fixing the date of taking evidence and shall have it served on the parties not less than ten days in advance.

Section 185. On the date of taking evidence, the court, when it sees fit or upon the request of either party, may read over to the parties the plaint, answer and answer to the counterclaim, if any, or the detailed report on the settlement of issues, as the case may be, and the motion for amendment (which has been filed with the court and duly served on the parties).

Subject to the provisions of the following three sections, the court shall take evidence on the issues in dispute according to the provisions of this Code governing evidence and hear oral arguments of all parties.

Section 186. When the taking of evidence is completed, the court shall allow the plaintiff to make an oral argument first and then allow the defendant to make an oral argument recalling their contentions and setting forth the results of the evidence taken on the issues in dispute. The court shall then allow the plaintiff to reply to the defendant’s oral argument only once again and then no party may further make any oral argument unless allowed by the court.

Before judgement, either party, irrespective of whether he or she has made an oral argument or not, may file a written argument with the court but he or she shall serve a copy of it on other parties.

Section 187.   After necessary evidence has been taken and the parties have made their arguments, if any, the trial shall be deemed completed. However, as long as no judgement has yet been rendered, the court may proceed further with the trial if it sees fit for the purpose of justice.

Section 188.   In a non-contentious case, the following rules shall apply:

1. The case shall be initiated by the filing of an application with the court;
2. The court may summon any witness for examination as it thinks necessary and give a decision as it sees fit and just;
3. The only recourse against the judgement or order of the court shall be by the filing of an appeal or petition, which may be made in only the following two cases:

(a) If the court has dismissed the application of the party initiating the case, in whole or in part; or

(b) On the ground of non-compliance with the provisions of this Code governing trial or judgement or order;

4. If any person other than the party filing a non-contentious case becomes involved in it, directly or indirectly, such person shall be deemed a party and the case shall be proceeded in accordance with the provisions of this Code governing contentious cases. However, in a case in which an application is filed with the court for it to render a judgement or order granting any permission which has been refused by a legal representative or for it to render a judgement or order revoking any permission granted to an incapacitated person, such case shall be deemed to be non-contentious even though such legal representative or incapacitated person appears in the court and raises an objection to such permission or relocate

Unofficial Translation Chaninat and Leeds Ltd. Thailand Divorce Attorneys

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