Refusal of Restitution and Possibility of Appeal

Facts

In this case, the appellant failed to appear at the conciliation hearing on November 5, 2012, which led the Conciliation Commission to strike the case from the docket. The Commission then rejected the appellant's request to resume the case and hold a new conciliation hearing.

According to the Civil Appeals Chamber, the Commission then applied Art. 148 CPC on restitution, and it ruled "definitively" under Art. 149 CPC. For this reason, the higher authority refuses to consider the appeal that has been submitted to it.

Considerations

The Federal Tribunal considers that the authority has the right, or even the duty, to deviate from the literal meaning of an apparently clear text, through interpretation, when objective reasons reveal that this text does not reflect the true meaning of the provision in question.

In this case, the refusal of restitution can result in the complete and irremediable loss of the action for the plaintiff, particularly when it is subject to a time limit. In a coherent procedural system, the plaintiff should then enjoy appeal possibilities at least similar to those provided against a first instance judgment rejecting the action.

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