1. APPEARANCE AND NON-APPEARANCE OF PARTIES BEFORE A COURT
INTRODUCTION:
Order IX of the Code of Civil Procedure, 1908 (hereinafter referred to as the “Code”)
deals with issues as regards the appearance of parties to the suit and consequences their
non-appearance.
Order IX, Rule 1 of the Code stipulates that parties to a suit are to present themselves
before the court on the date fixed in the summons issued by the court to the defendant;
summons are issued, firstly, to secure the appearance of the defendant (in person or
through pleader) and, secondly, to enable the defendant to answer the claim of the
plaintiff.
2. • The parties are supposed to present
themselves after the issue of :
• Notice
• Summons
3. Order IX, Rule 2 of the Code states that, where the plaintiff fails to pay the court-fee or postal
charges chargeable for the service of summons to the defendant or fails to present the copies of
the plaint as required by Order VII, Rule 9 of the Code, then, the suit of the plaintiff can be
dismissed, regards being had to the discretion of the court. An appeal cannot be preferred
against an order passed by the court dismissing the suit under Order IX, Rule 2 of the Code; only
a revision under Section 115 of the Code can be preferred against such an order dismissing the
suit.
Order IX, Rule 3 of the Code further states that, where on the date fixed for the hearing of the
suit, neither of the parties to the suit appears, then, the suit can be dismissed. Dismissal under
this rule does not amount to a decree and no appeal as such lies from it; the plaintiff can either
bring a fresh suit or can apply under Order IX, Rule 4 of the Code to set aside the dismissal.
4. • Can dismissal of suit take place on non
payment court fees?
5. • If both the parties are absent then suit will be
:
• Stayed
• Barred
• dismissed
6. Order IX, Rule 4 of the Code stipulates that, when a suit is dismissed under Order IX, Rule 2, or,
Order IX, Rule 3, of the Code, then, a fresh suit on the same cause of action is not barred if
within limitation.
An application for restoration of suit under Order IX, Rule 4 is to be preferred within 30 days of
dismissal of the suit.
Once the application for setting aside the dismissal is allowed, the defendant is entitled to get
notice of restoration and the date of further hearing;
the requirement of notice to the defendant is mandatory (and not directory) and non-service of
notice is sufficient enough to get the decree set aside.
7. Order IX, Rule 5 of the Code states that, a suit shall be dismissed where the plaintiff after the
return of summons being not served, fails to apply for fresh summons within a period of 7
(seven) days reckoning from the date on which the earlier summons were returned as un-
served. However, the court shall not dismiss the suit, if the plaintiff satisfies the court that:
(a) despite best endeavours, the plaintiff failed to discover the residence of the
defendant;
(b) defendant is avoiding the service of process; and/or,
(c) there is sufficient cause favouring the plaintiff to pray for the extension of the time
for the service of summons upon the defendant.
Where a suit is dismissed under Order IX, Rule 5 of the Code, the plaintiff is not
prevented from bringing a fresh suit.
8. Order IX, Rule 6 of the Code provides for the procedure that is to be adopted when on
the first date of hearing of the suit only the plaintiff appears and the defendant does
not appear despite the summons being duly served on the defendant, or, summons
being duly served on the defendant but not within sufficient time, or, when summons
were not duly served. Under Order IX, Rule 6 of the Code, the defendant can be
proceeded against ex parte provided summon were duly served upon him within
sufficient time.
9. Order IX, Rule 7 of the Code contemplates a situation where by the case was proceeded ex
parte since the defendant did not appear before the court of law, or, where the defendant
failed to appear before the court of law after filing of the written statement, but, thereafter
the defendant appears before the court of law and assigns good cause for his previous non-
appearance, and thereby, prays for the setting aside of the ex parte order.
Order IX, Rule 8 of the Code deals with a situation where by the suit is dismissed in default,
for, only the defendant appears before the court of law and the plaintiff fails to appear.
Under Order IX, Rule 8 of the Code, a suit cannot be dismissed for non-appearance of the
plaintiff if: (a) the defendant admits the whole of the claim of the plaintiff; or, (b) the
defendant admits the claim of the plaintiff only in part and not in whole; the court,
therefore, shall decree the suit accordingly in favour of the plaintiff, as against the
defendant.
10. Order IX, Rule 9 of the Code states that, where a suit is dismissed either in part, or, in
whole, under Order IX, Rule 8 of the Code, then, a fresh suit on the same cause of action is
barred.
An application for restoration of the suit under Order IX, Rule 9 is allowable provided it is
made within 30 days of the dismissal of the suit.
An appeal can be preferred under Order XLIII, Rule 1(c) of the Code against an order
rejecting an application under Order IX, Rule 9 of the Code;
however, a revision may lie from against an order restoring a suit dismissed in default.
Order IX, Rule 10 of the Code provides that where there are more plaintiffs than one, and
one or more of them appear before the court of law on the date fixed, while the others do
not appear, then, the court may permit the suit to be proceeded as if all the plaintiffs have
appeared, or may pass such an order as the it thinks just.
11. Order IX, Rule 11 of the Code provides that where there are more defendants than one, and
one or more of them appear before the court of law while the others do not appear, then, the
court may permit the suit to be proceeded as if all the defendants have appeared, or may
pass such an order as it thinks just.
Order IX, Rule 12 of the Code states that when the plaintiff and/or the defendant, who have
been ordered to appear before the court of law in person, neither appear nor show sufficient
cause for non-appearance, then, such plaintiff and/or defendant are to be subjected to all the
Rules as provided for in Order IX of the Code in this behalf, which are as such applicable
apropos the plaintiffs and/or the defendants, who do not appear.
12. Order IX, Rule 13 of the Code states that an ex parte decree passed against a defendant can be
set aside if the defendant satisfies the court on either of the two counts: (a) the summons
were not duly served on the defendant, or, (b) the defendant was prevented by any “sufficient
cause” from appearing before the court when the suit was called out for hearing. The court
has the discretion to set aside the ex parte decree passed against the defendant on such terms
as to costs or otherwise (deposit of decretal amount in the court) as the court deems fit in the
facts and circumstances of each case.
It is important to note that, the second proviso to Order IX, Rule 13 of the Code states that,
the court shall not set aside an ex parte decree merely on the ground of irregularity in the
service of the summons in a case where the defendant had sufficient notice of the date of
hearing of the suit, and had enough time to appear and answer the claim of the plaintiff. An
application under Order IX, Rule 13 of the Code must be preferred within 30 days from the
date of the decree, or, where the summons were not duly served, within 30 days from the
date of the knowledge of the decree.
13. Order IX, Rule 14 of the Code states that, no ex parte decree can be set aside without notice to
the opposite party. Moreover, in the case of, Mahesh Yadav v. Rajeshwar Singh, it was held
that, an order setting aside an ex parte decree is a judicial order and therefore, it must be
supported by reasons.
In the case of Salem Advocates Bar Association, Tamil Nadu Union of India, it was held that the
period of 7 (seven) days mentioned in Order IX, Rule 5 of the Code is merely directory and is not
mandatory.
In the case of Arjun Mohindra, it was held that, there is no material difference between the
expressions “good cause” as used in Order IX, Rule 7 of the Code and “sufficient cause” as used
in Order IX, Rule 13 of the Code.
14. “Sufficient cause” for the purpose of Order IX, Rule 13 of the Code has to be construed as an
elastic expression for which no hard and fast rule can be laid down. In the case of P.
Srivastava v. Raizada, it was held that, the relevant date for deciding “sufficient cause” for
non-appearance by the defendant is the date on which the ex parte decree was passed, and,
the previous negligence or past defaults of the defendant which have already been
condoned are not to be looked into. In sum and substance the test that is to be applied is
whether the party honestly intended to remain present at the hearing of the suit and did his
best to do so; sufficient cause must be other than lack of knowledge of the proceedings.
In the case of Parimal v. Veena, the Hon’ble Supreme Court of India, held that, the term
‘sufficient cause’ used in Order IX, Rule 13 of the Code means that the defaulting party had
not acted in a negligent manner or there was a want of bona fide on its part in view of the
facts and circumstances of a case or the party cannot be alleged to have been ‘remaining
inactive’ or ‘not acting diligently’.
