APPEARANCE AND NON-APPEARANCE OF PARTIES-ORDER IX
Appearance and non-appearance of the parties in a civil suit is the important factor upon
which the case depends. A mere non-appearance of a party in front of the court on a
determined day may result in an adverse decision with respect to the non-appearing party. It
is the duty of the parties to the suit to show up before the court of law on a due date which
has been fixed by the court. In case of non-appearance of any of the parties to the suit, the
judgement of the court may turn in favour of the party appearing in front of the court.
However, in situations where a suit is determined irrespective of the fact that any of the
parties to the suit are absent on the due date. Then, the non-appearing party in order to
safeguard its interest can revive the suit by following the provisions of Civil Procedure Code,
1908.
The provisions with respect to the consequences in case of non-appearance of parties and
other related provisions are contained in the Order IX of Civil Procedure Code, 1908. The
rules regarding the consequences of appearance and non-appearance of parties to the suit
under the Order IX of CPC are as follows:
a- Rule 1 Order IX of Code of Civil Procedure 1908 "Parties to appear on day fixed in
summons for defendant to appear and answer"
On the day fixed in the summons for the defendant to appear and answer, the parties shall be
in attendance at the Court-house in person or by their respective pleaders, and the suit shall
then be heard unless the hearing is adjourned to a future day fixed by the Court. The word
“appearance” under civil cases has a well-known meaning. It means the appearance of the
party to the suit before a court of law. The appearance can be by the party in person or
through his advocate or through any person along with the advocate of the party. the word
“appearance” under CPC means the appearance made by the pleader who is able to answer all
the material questions which are relevant to the judicial proceedings in question before the
court of law in a duly prescribed and recognized manner and on the date allotted by the court
to each party unless the court has adjourned the proceedings of the case to some other day.
Rule 1 of Order IX is related to the appearance of the parties on the date of first hearing of the
case. It declares the mandatory presence of the parties before the court of law on the day
fixed by the court under the summon issued on the defendant.
B-Rule 2– Rule 2 Order IX of Code of Civil Procedure 1908 "Dismissal of suit where
summons not served in consequence of plaintiffs failure to pay costs"
Where on the day so fixed it is found that the summons has not been served upon the
defendant in consequence of the failure of the plaintiff to pay the court-fee of postal charges
(if any) chargeable for such service, or to present copies of the plaint or concise statements,
as required by rule 9 of Order VII, the Court may make an order that the suit be dismissed
Provided that no such order shall be made, if, notwithstanding such failure the defendant
attends in person (or by agent when he is allowed to appear by agent) on the day fixed for
him to appear and answer. According to Rule 2 of the Order IX, the failure on the part of the
plaintiff to submit any processing fee determined by the court of law on any stipulated date.
Then such a failure would result in the dismissal of the suit by the court. However, no such
dismissal to the case can be made where the defendant in person or through his agent attend
the proceedings of the court and answers all the material questions possessed by the court.
C-Rule 3 and Rule 4 of Order IX of Civil Procedure Code, 1908 deals with "Where
neither party appears, suit to be dismissed “and "Plaintiff may bring fresh suit or Court
may restore suit to file"
Where neither party appears when the suit is called on for hearing, the Court may make an
order that the suit be dismissed. Where a suit is dismissed under rule 2 or rule 3, the plaintiff
may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set
the dismissal aside, and if he satisfies the Court that there was sufficient cause for such
failure as is referred to in rule 2, or for his non-appearance, as the case may be, the Court
shall make an order setting aside the dismissal and shall appoint a day for proceeding with the
suit.
Rule 3 and Rule 4 of Order IX of Civil Procedure Code, 1908 deals with the cases where
neither of the parties in a case appears before the court of law on the date fixed by the court
of law. According to Rule 3 of the Order IX of CPC. In such a case, the suit shall be
dismissed by the court and according to Rule 4, the plaintiff can file a new suit in the court of
law if he is able to satisfy the court that there was a sufficient cause for his non-appearance in
court.
In Damu Diga v. Vakrya Nathu, the plaintiff sued the defendants, D1 and D2. on the date
fixed by the court for appearance of the parties to the suit only D2 appeared in the court. The
subordinate court erred while passing the order of dismissal of the case. However, in an
appeal against the decision of the court. It was held that the present case comes under the
purview of Rule 4 of Order IX of CPC and court should take into consideration the fact that
not only the plaintiff in the case was absent from the proceedings. But, defendant number 1
was also absent and the according to Rule 4, the court must allow the plaintiff to apply for an
order setting aside the dismissal of the case by the court.
D-Rule 5 Order IX of Code of Civil Procedure 1908 "Dismissal of suit where plaintiff
after summons returned un served, fails for one month to apply for fresh summons"
(1) Where after a summons has been issued to the defendant, or to one of several defendants,
and returned unserved, the plaintiff fails, for a period of one month from the date of the return
made to the Court by the officer ordinarily certifying to the Court returns made by the serving
officers, to apply for the issue of a fresh summons the Court shall make an order that the suit
be dismissed as against such defendant, unless the plaintiff has within the said period
satisfied the Court that-
(a) he has failed after using his best endeavours to discover the residence of the defendant,
who has not been served, or
(b) such defendant is avoiding service of process, or
(c) there is any other sufficient cause for extending the time,
in which case the Court may extend the time for making such application for such period as it
thinks fit.
(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.
E-Rule 6 Order IX of Code of Civil Procedure 1908 "Procedure when only plaintiff
appears"
(1) Where the plaintiff appears and the defendant does not appear when the suit is
called on for hearing, then-
(a) When summons duly served- if it is proved that the summons was duly served,
the Court may make an order that the suit shall be heard ex parte;
(b) When summons not duly served- if it is not proved that the summons was duly
served, the Court shall direct a second summons to be issued and served on the
defendant;
(c) When summons served but not in due time- if it is proved that the summons
was served on the defendant, but not in sufficient time to enable him, to appear
and answer on the day fixed in the summons, the Court shall postpone the hearing
of the suit to a future day to be fixed by the Court, and shall direct notice of such
day to be given to the defendant.
(2) Where it is owing to the plaintiff's default that the summons was not duly
served or was not served in sufficient time, the Court shall order the plaintiff to
pay the costs occasioned by the postponement.
Rule 6 of Order IX, when the plaintiff is present but the defendant is absent on the date of
peremptory hearing on a prescribed date. According to Rule 6 of Order IX, when the plaintiff
is present but the defendant is absent on the date of peremptory hearing on a prescribed date
of hearing then the court takes the decision about the consequence of such non-appearance
with respect to the status of summon which is served to the parties in the case by the court of
law. Following are the consequences of non-appearance of the defendant and the appearance
of the plaintiff with respect to varying statuses of the summon which is served:
In the case where the summon is duly served the court can declare that the suit
shall be heard ex-parte;
In the case where the summon is not duly served then, the court can order the issue
of a second summon and that the same to be served to the defendant;
When the summon is served to the defendant but the sufficient time was not given
to him to make an appearance in the court of law and answer the material
questions in the case on the day fixed by the court. The court shall postpone and
fix the hearing of the case to some other day which shall be notified to the
defendant;
When in a case the delay in issuance to the defendant is caused due to the fault of
the plaintiff, the court may order the plaintiff to pay the costs occasioned by the
delay in the proceedings.
Ex parte decree
Rule 6(1)(a) of Order IX of the Civil Procedure Code empowers the court to pass any
judgement ex parte in case the defendant party in a case absents himself from the proceedings
on the due date fixed by the court of law which has been informed to him by the summon
duly served on him of the case. An Ex parte decree is neither void nor inoperative but it is
voidable at the option of one party which may seek the order of annulment of the decree.
Remedies
The Code provides the following remedies to the defendant against whom an ex parte decree
by the court has been passed:
An application under Order IX, Rule 13 of the Code;
Annulment of the decree under Section 12 of the Code by proving that the decree
has been obtained on the ground of any of the vitiating factors like a fraud;
Filing of a review petition under Section 114 of the Code;
Filing the application for rehearing of the case on the grounds of violation of the
principles of natural justice;
Filing of an appeal under Section 96 of the Code.
Setting aside ex parte decree
Rule 13 of order 9 of the Civil Procedure Code contains provisions related to Setting aside of
the Ex parte decree passed by the court. The Rule specifies that the defendant against whom
the ex parte decree has been issued can apply for setting it aside. In case there are more than
two defendants any one or more than one defendant can apply for setting it aside.
The court in the case of Santosh Chopra V. Teja Singh held that the meaning of the
expression “defendant” under the Rule is wide enough to include a person who is adversely
affected by the ex parte decree and therefore, even a purchaser of mortgaged property can
make an appeal of setting aside an ex parte decree.
An application for setting aside the ex parte decree can be filed in front of the court which has
passed such an order. However, in a case where the ex parte decree has been affirmed by any
superior court then the appeal for setting aside the decree can be made in that superior court.
The following are the grounds for applying for the order of setting aside decree against the ex
parte judgement of the court:
The defendant has to prove in front of the court of law that the summon was
not duly served on him: Rule 6 of order 9 mandates that an ex parte order against
the defendant can be passed by the court if the plaintiff is able to prove in the court
of law that the defendant has absented himself from the proceedings of the court
even when the summon was duly served on him.
The defendant has to prove in front of the court that there was a sufficient
cause which prevented him from appearing in the proceedings on the due
date: The term “sufficient cause” is nowhere defined under the code and therefore,
the meaning of the term ‘sufficient cause’ has to be determined by the courts
liberally keeping in view the facts and circumstances of the case. No party should
be condemned unheard unless there has been something equivalent to misconduct
or gross negligence on his party.
Appeal
Section 96 to 112 of Part VII of the Civil Procedure Code, 1908 deals with an appeal. Appeal
means the removal of a cause from a subordinate court to a superior court in order to test the
soundness of the decisions passed by the inferior court. It is the continuation of original
proceedings before the superior court which is approached. The superior court need not
always be high court as it can even be a subordinate district court. Following people can file
an appeal against any order in the court of law:
Party to the suit who has been adversely affected by the orders of the case;
An auction purchaser in the exercise of a decree in order to annul the purchase on
the grounds that he was defrauded or so on;
Any person who is bound by any decree which operates res judicata against him
and the person has been allowed by the appellate court to file an appeal.
The right of appeal empowers the superior court to rehear the whole dispute unless it has
been expressly prohibited under any of the statutes. The superior court is not bound by the
ratio decidendi of the subordinate court based on which the judgement was passed by the
court. According to Section 96 of the Civil Procedure Code, an appeal can lie against all the
decrees passed in exercise of civil jurisdiction exercised by the court. However, this Section
is not applicable to the following decrees:
Consent decree,
The decree passed by the court under Section 9 of the Specific Relief Act,
A final decree passed by the court, the preliminary decree of which was not
challenged.
Revision
The dictionary meaning of the word revise is to examine something again in order to improve
its present state. Revision is the act of revising anything. Section 115 confers the revisional
jurisdiction to the High courts in the country. Under the revisional jurisdiction, the High
Courts can entertain any revisional petition filed by any party which is aggrieved by any
judgement, order or decree passed by any subordinate court in the country. The limitation
period for filing any revisional petition against any order, decree or judgment is 90 days from
the passage of such an order, decree or judgement. The main objective behind the
incorporation of the provision of revision petition against the order of the subordinate court is
to prevent them from acting arbitrarily, capriciously, and unlawfully by ensuring the check on
their actions by the High courts. The following conditions are required to be satisfied before
the exercise of the revision jurisdiction of the courts can be made by the High Courts:
1. The judgement of the case must be passed by a court of competent jurisdiction;
2. The court which has decided the case must be subordinate to the High Court;
3. The order which is passed by the court must be the one against which an appeal
can be made;
4. The court passing the judgement must have exceeded the jurisdiction vested upon
him, or has failed to exercise the jurisdiction vested on it.
5.
Review
The literal meaning of the review is to study or examine something again. In the legal sense,
the meaning of review is to examine the facts and judgment of any case again. The power of
review of facts and judgments are vested only on the courts. The provisions with respect to
review are contained in Section 115 of the Civil Procedure Code. There are no specific
conditions or limitations specifically provided for review. Under Section 115 of the Civil
Procedure Code. However, order 47 of the Civil Procedure Code provides for the limitations
and conditions with respect to the review of the cases. The Supreme Court Rules, 1966,
provides that the limitation period for filing a review petition against any decision passed by
the court is 30 days from the date of passage of such an order.
The grounds for review of judgement are as follows:
When the applicant discovers a new evidence material to the determination of
judgment of the case which due to negligence or any other reason was not able to
present the evidence in front of the court of law when it passed the decree;
The order of review is passed only in such cases where the error is in the face of
records and not with respect to the facts of the case. What constitutes the face of
records has to be determined by the courts on a case to case basis keeping in view
the facts and circumstances of the case;
Any misconception on the part of the court may be regarded as a sufficient cause
to review the judgement.
Suit
The word review has not been defined under the provisions of the Civil Procedure Code but
by the various judgements passed by a court of law, the meaning of the term suit ordinarily
means the civil proceedings initiated by the means of the institution of plaint. The decree is
the outcome of a suit as without suit there cannot be any decree issued. There are four
essentials of a suit. Which are as follows:
Name of parties: In any suit, there have to be two parties contending different
claims. One is the defendant and the other is the plaintiff party. There is no
limitation on the number of people representing either of the parties.
Cause of action: Cause of action is the set of facts and circumstances which a
plaintiff has to prove. Any person becomes a party to the suit when the cause of
actions is proved against him. Cause of action is basically the set of those events,
acts and circumstances which results in the institution of civil proceedings in the
court of law. Every plaint must essentially disclose the cause of action and if a
plaint fails to disclose the same then the court shall reject such a plaint.
The subject matter of the case: There must be an express declaration of the subject
matter of the case which basically is the reason for the filing of the plaint and thus,
bringing the matter in front of the case. Section 9 of the Civil Procedure Code
empowers the court to try all the cases unless they are expressly or impliedly
barred from being tried by the statutes.
Relief: Relief is the compensation or damages which are paid to the plaintiff by the
defendant on the express orders of the court to do so. The courts are not obliged to
provide relief to the plaintiff unless he has expressly asked for it. Reliefs are of
two types which are alternative relief and specific relief.
F-Rule 7 Order VIII of Code of Civil Procedure 1908 "Procedure where defendant
appears on day of adjourned hearing and assigns good cause for previous non-
appearance"
Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or
before such hearing. appears and assigns good cause for his previous non-appearance, he
may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the
suit as if he had appeared on the day fixed to his appearance.
G-Where only the defendant appears-Rule 8
Rule 8 of the Order IX of the CPC talks about the legal consequences of the non-appearance
of the plaintiff and the appearance of the defendant in the court of law. According to the rule,
in a case where the defendant makes an appearance in the court of law on the due date and
the plaintiff remains absent from the proceedings. The court shall make an order of dismissal
of the case unless the defendant admits a claim or parts thereof as in such a case the court can
pass a decree against the defendant upon such admission or where only the part of the claim
is admitted. If the case of the plaintiff has been dismissed by the court under Order IX of the
CPC then the plaintiff has two options to revive his case in the court of law. Which are as
follows:
The plaintiff can file a fresh suit in the court of law if the same has not been barred
by any law in force; or
The plaintiff can file a petition under Rule 4 of Order IX of Civil Procedure Code,
1908. According to Rule 4 of the Order where a case has been dismissed in
pursuance of Rule 2 or Rule 3 of the Order IX then the plaintiff can apply for an
order for the dismissal of the case by the court.
In the case of The Secretary, Department of Horticulture, Chandigarh and Anr. Vs. Raghu
Raj, the court held that the plaintiff should not suffer because of the non-appearance of the
council appointed by him with good faith that he will make an appearance without any
reasonable cause in the court of law whenever the plaintiff is called for in the court. As such
non-appearance by the counsel representing the plaintiff without any reasonable cause is not
only unprofessional and unfair to the plaintiff but is also unfair and discourteous towards the
court of law. And so the plaintiff should not suffer because of the fault of the counsel he has
hired in good faith.
