APPEARANCE& NON-APPEARANCE OF PARTIES- ORDER IX

GENERAL

The provisions of the Code of Civil Procedure are based on a general principle that, no
proceeding in a court of law should be conducted to the detriment of any party in his absence.
Order 9 of the Code enacts the law with regard to the appearance of the parties to the suit and the
consequences of their non-appearance. It also provides a remedy for setting aside an order of
dismissal of the suit as also the setting aside f an ex parte decree passed against the defendant.

APPEARANCE OF PARTIES: RULES 1&2

Rule 1 requires the parties to the suit to attend the court in person or by their pleaders on the day
fixed in the summons for the defendant to appear. Rule 12 provides that where a plaintiff or a
defendant, who has been ordered to appear in person, does not appear in person or show
sufficient cause for non-appearance, the court may dismiss the suit, if he I the plaintiff, or
proceed ex parte if he is the defendant.

WHERE NEITHER PARTY APPEARS: RULE 3

Where neither the plaintiff nor the defendant appears when the suit is called out for hearing, the
court may dismiss it. The dismissal of the suit under Rule 3, however, does not bar a fresh suit in
respect of the same cause of action. The plaintiff may also apply for an order to set aside such
dismissal. And if the court is satisfied that there was sufficient cause for his non-appearance, it
shall pass an order setting aside the dismissal of the suit and shall fix a day for proceeding with
the suit.

WHERE ONLY PLAINTIFF APPEARS: RULES 6, 10

Where the plaintiff appears and the defendant does not appear, the plaintiff has to prove service
of summons on the defendant. If the service of summons is proved, the court may proceed ex
parte against the defendant and may pass a decree in favour of the plaintiff, if the plaintiff proves
his case.

WHERE ONLY DEFENDANT APPEARS: RULES 7-11

Where the defendant appears and the plaintiff does not appear, and the defendant does not admit
the plaintiff’s claim, wholly or partly, the court shall pass an order dismissing the suit. But if the
defendant admits the plaintiff’s claim as a whole or a part thereof, the court will pass a decree
against the defendant upon such admission and dismiss the suit for the rest of the claim.

It is, however, a serious matter to dismiss the plaintiff’s suit without hearing him and that course
ought not to be adopted unless the court is really satisfied that justice so requires. But the Court
has no power to dismiss the suit where the plaintiff does not appear owing to death.

Rule 9 precludes the plaintiff thereafter from filing a fresh suit on the same cause of action. He
may, however, apply for an order to set aside the order of dismissal. And if the court is satisfied
that there was sufficient cause for his non-appearance the court may set aside the order of
dismissal and fix a day for proceeding with the suit.

What is sufficient cause depends upon facts and circumstances of each case and liberal and
generous construction should be adopted to advance the cause of justice and restoration should
not ordinarily be denied.

In Chhotalal v. Ambalal Hargovan, the High Court of Bombay observed that when a party arrives
late and finds that his suit or application is dismissed, he is entitled to have his suit or application
restored on payment of costs.

WHERE SUMMONS IS NOT SERVED: RULES 2 & 5

The service of summons on the defendant is, a condition precedent to a fair trial. If the summons
is not served on the defendant or it does not give him sufficient time to represent his case
effectively, no decree can be passes against him.
Rule 2 of Order 9 enacts that the suit may be dismissed where the summons is not served on the
plaintiff’s failure to pay costs for service of summons to defendant or to present copies of the
plaint. No such order, however, can be passed in spite of such failure by the plaintiff if the
defendant appears in person or by his authorized agent on the day fixed for him to appear. The
plaintiff may file a fresh suit even after the dismissal of the suit under Rule 2 in respect of the
same cause of action or may apply for an order to set aside such dismissal. And if the court is
satisfied that there was sufficient cause for such failure, the court shall set aside such order of
dismissal and shall fix a day for proceeding with the trial.

EX PARTE DECREE

Meaning

An ex pate decree is a decree passed in the absence of the defendant (in absenti). Where the
plaintiff appears and the defendant does not appear when the suit is called out for hearing and if
the defendant is duly served, the court may hear the suit ex parte and pass a decree against him.

Such a decree is neither null and void nor inoperative but is merely voidable and useless until it
is annulled on legal and valid grounds, it is proper, lawful, operative and enforceable like a bi-
parte decree and it has all the force of a valid decree.

Remedies

The defendant, against whom an ex parte decree has been passed, has the following remedies
available to him:

(1) to apply to the court by which such decree is passed to set it aside: Order 9 Rule 13; or

(2) to prefer an appeal against such decree: Section 96(2) (or to file a revision under Section 115
where no appeal lies);

(3) to apply for review: Order 47 Rule 1; or

(4) to file a suit on the ground of fraud.

Setting aside ex parte decree: Rule 13 The defendant against whom ex parte decree has been
passed may apply for setting it aside.
Where there are two or more defendants, any one or more of them may also make such
applications. An application for setting aside ex parte decree may be made to the court which
passed the decree. Where such decree is confirmed, reversed or modified by a superior court, an
application may be filed in a superior court.

Grounds

If the defendant satisfies the court that (i) the summons was not duly served; or (ii) he was
prevented by any sufficient cause from appearing when the suit was called out for hearing, the
court will set aside the decree passed against him and appoint a day for proceeding with the suit.

Summons not duly served

As provided in Rule 6, the suit may proceed ex parte against the defendant only when it is
proved by the plaintiff to the satisfaction of the court that the defendant did not appear even
though the summons was duly served. In that case, an exparte decree may be passed against him.

Therefore, if the defendant satisfies the court that the summons was not duly served upon him,
the court must set aside the ex parte decree passed against him.

Sufficient cause

The expression “sufficient cause” has not been defined anywhere in the Code. It is a question to
be determined in the facts and circumstances of each case. The words “sufficient cause” must be
liberally construed to enable the court to exercise powers ex debito justitiae. A party should not
be deprived of hearing unless there has been something equivalent to misconduct or gross
negligence on his part. Necessary materials should be placed on record to show that the applicant
was diligent and vigilant.

Sufficient cause: Illustrative cases

The following causes have been held to be sufficient for the absence of the defendant;

(1) Bona fide mistake as to the date of hearing;

No sufficient cause: Illustrative cases

The following causes, on the other hand, have been held not to be sufficient for absence of the
Defendant for setting aside an ex parte decree;

(1) Negligence of party;

Inherent power to set aside decree

Since the Code makes specific provision for setting aside ex parte decree, no inherent power can
be exercised to set aside such decree.

Appeal

An appeal lies against an order rejecting an application to set aside ex part decree. As stated
above, an ex parte decree is a decree under Section 2(2) of the Code and, therefore, an aggrieved
party can also file an appeal under Section 96(2) of the Code.

Revision

An order setting aside an ex parte decree is a “case decided” within the meaning of Section 115
of the Code and is, therefore, revisable. A High Court may also exercise supervisory jurisdiction
under Article 227 of the Constitution in appropriate cases.

Review

Since all the remedies against an ex parte decree are concurrent, an aggrieved party can also file
an application for review if the conditions laid down in Order 47 Rule 1 are satisfied.

Suit
A suit to set aside an ex parte decree is not maintainable. But if an ex parte decree is alleged to
have been obtained by the plaintiff by fraud, the defendant can file a regular suit to set aside such
decree. It is settled law that fraud vitiates the most solemn transactions.