A study of the plea of non-establishment of position of petitioner in civil procedure regulations

The pleas introduced to a claim are one of the important topics of the civil proceedings, which have been provided by the legislator in articles 84 onward of the civil procedure regulations in Iran. Whereas a plea to a claim as a procedural issue often prevents investigation of the court into the nature of the claim and issuance of a court order, and such cases are ultimately sent to the record-room by a writ of rejection of the suit, attention to this issue and effort to file a suit without a plea for the petitioner is of special importance. One of the most important pleas is the plea of non-establishment of position of petitioner. The reason of introducing such a plea is the possibility of filing a suit with the court on behalf of the plaintiff under the titles of advocacy, guardianship, tutorship and so on. That is why the petitioner should pay particular attention to the documents revealing his (her) representation in filing a suit on behalf of the plaintiff in order to prevent this plea from consideration by the court.The old regulations of civil procedure considered the non-attachment of the documents concerning the position of the petitioner (to establish his (her) claimed position) to the petition as a deficiency of the petition therefore, office of the courts of first instance and courts of appeal warned the primary plaintiff to remove this defect, failing to do so the office had no way by to issue a writ of rejection of the petition or the initial claim. However, in the new regulations of civil procedure the courts (particularly courts of appeal) have not been obliged to review the issue and to notify the removal of the defect, consequently, this defect in the first instance prevents a court order and causes the issuance of a writ of rejection of the suit while the court of appeal too, may reject a primary order (issued in favor of the petitioner) and issue an irrevocable writ of rejection due to the non-establishment of the position of the petitioner. These decisions by the courts made without any prior notification to the petitioner to possibly remove the defect seem illogical and unfair. The present paper deals with a research on a plea of non-establishment of position and its contrast in the old and new regulations of civil procedure and finally, puts forth some suggestions for compensation of the deficiency of the new regulations of civil procedure until their eventual amendment and completion.