BRIEF NOTE ON ORDER 9 OF THE CODE OF CIVIL PROCEDURE – Consequences of non-appearance of the party to the suit.

Appearance and non-appearance of the parties is an important part of the suit which determines the result of the suit. The provisions of the code are based on the general principle that, as far as possible, no proceeding in a court of law should be conducted to the detriment of any party in their absence. The Code provides the provisions under Order 9 with regard to the appearance and non-appearance of the parties and their consequences. It also provides the remedy for setting aside an order of dismissal of the suit and also the setting aside of an ex-parte decree passed against the defendant. Every proceeding as far as possible must be carried on in the presence of parties as a general principle of law. Order IX of the Code of Civil Procedure lays the laws regarding the appearance of parties and what are the consequences of the non-appearance of parties.

Appearance and Non-Appearance of Parties || Order 9 || CPC ||

Appearance:- The word appearance means an appearance in person or through an advocate for conducting a case in the court. So, the appearance may be by a party himself in person or by an advocate, or by a party in person along with his advocate

THE APPEARANCE OF THE PARTIES ; RULE 1: appearance of the parties; Rule 1 :

Rule 1 of the Order 9 of CPC requires the parties to the suit to present in the court in person or by their pleader on the day fixed in the summons for the defendant to appear. .the parties to the suit are required to attend the court either in person or by their pleaders on the day which has been fixed in the summons.

While Rule 12 says that where the plaintiff or defendant, who has been ordered to present in person, does not appear in person or show sufficient cause for non-appearance, the court may, dismiss the suit if he is the plaintiff, or proceed ex-parte if he is the defendant.

If the plaintiff or a defendant, when ordered to appear in person, do not appear before the court and neither show sufficient cause for his non-appearance, the court is empowered under Rule 12 of Order IX as follows.

l If the plaintiff does not appear, dismiss the suit.

l If the defendant does not appear, pass an ex-parte order.

Non-appearance of both parties to the suit

Effect where neither party appears; Rule 3:-

Rule 3 provides that where neither plaintiff nor the defendant appears when the suit is called out for hearing, the court may dismiss it. Rule 4 provides that dismissal of the suit under Rule 3 does not bar a fresh suit in respect of the same cause of action.

Rule 4 Order IX of Code of Civil Procedure 1908 “Plaintiff may bring fresh suit or Court may restore suit to file” 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.

The dismissal of the suit under this rule does not put a bar on filing a fresh suit on the same cause of action as per Rule 4.

The plaintiff can also apply for setting aside the dismissal if he is able to satisfy the court that there was sufficient behind his non-appearance. If the court is satisfied with the cause of non-appearance then it may set aside the order of dismissal and schedule a day for the hearing of the suit.

The appearance of the plaintiff

Effect where only plaintiff appears; Rule 6 :Rule 6 provides that where the plaintiff appears and the defendant does not appear, the plaintiff has to prove the service of summons on the defendant and if it 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.

Sangram Singh V. Election Tribunal, AIR 1955 SC 425;It was held that this provision is confined to first hearing and does not per se apply to subsequent hearings.

(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.

When only the plaintiff appears but the defendant does not appear, then an ex-parte order can be passed against the defendant. But, the plaintiff has to prove that the summon was served to the defendant.

If service of the summons is proved then only the court can proceed for an ex-parte against the defendant and the court may pass a decree in favor of the plaintiff. This

the provision applies only for the first hearing and not for the subsequent hearings of the matter and the same has been held in the case of Sangram Singh v. Election Tribunal.

Even while passing an ex-parte order it is the duty of the court to secure the end of justice even in the absence of the defendant. In the case of Maya Devi v. Lalta Prasad, it has been held by the Supreme Court that -It is the duty of the court to ensure that statements in the plaint stand proven and the prayers asked before the court are worthy of being granted. This provision of passing ex parte order cannot be passed when there are more than one defendant in the case and any of them appears.

Remedies:-If an ex-parte decree is passed against the defendant then the defendant may apply for setting aside the ex-parte decree under Rule 13 Order 9 of CPC.

WHEN SUMMON IS NOT SERVED.

Rule 2 Order IX of Code of Civil Procedure 1908 “Dismissal of the 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. Rule 2 to 5 of Order IX lays down the provision for the situation when the summon is not served to the defendant. One of the fundamental law of procedural law is that a party must be given a fair opportunity to represent his case. And, for this, a notice of the legal proceedings initiated against him is obligatory. Therefore, service summons to the defendant is mandatory and it is a conditional precedent.

When there is no service of summons or it does not give him sufficient time for effective presentation of the case then a decree cannot be passed against him as held in the case of Begum Para v. Luiza Matilda Fernandes.

Rule 2 of Order IX also holds that when the plaintiff fails to pay costs for service of summons to the defendant then the suit may be dismissed. But, no dismissal can be made even in the presence of such failure if the defendant appears on the day of hearing either in person or through his pleader. However, the plaintiff is entitled to file a fresh suit when the suit is dismissed under this rule. and, if the court is satisfied that there is a reasonable reason behind such failure to pay costs then the court may set aside the order of dismissal.

When the summon is returned unserved and the plaintiff does not apply for fresh summons for 7 days from which the summon is returned unserved by the defendant or any of the defendants, then the court can dismiss the suit against the defendant or such defendants

When the summon was not duly served to the defendant is not proved then the court can direct to issue a fresh summon to the defendant for service. When the service of the summons is proved before the court but the time prescribed in the summon is not

sufficient for him to answer on the day which has been fixed, then the hearing can be postponed by the court to a future date and notice will be given to the defendant.

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.

APPEARANCE OF DEFENDANT.

When the defendant appears but there is non-appearance of the plaintiff, then there can be two situations:

1. The defendant does not admit the claim of the plaintiff, either wholly or any part of it.

2. The defendant admits the plaintiff’s claim.

If the defendant does not admit the claim of the plaintiff, then the court shall order for dismissal of the suit. But, when the defendant admits completely or any part of the claim made by the plaintiff then the court is empowered to pass a decree against the defendant on the ground of such admission, and for the rest of the claim, the suit will be dismissed.

Dismissal of the suit of the plaintiff without hearing him is a serious matter and it should not be adopted unless the court gets satisfied that in the interest of justice such dismissal is required, as cited by Beaumont, C.J. in the case of Shamdasani v. Central Bank of India.

Where only the defendant appears Rules 7 To 11

Rule 7 Order IX of Code of Civil Procedure 1908 “Procedure where the defendant appears on the day of the 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.

Rule 8 Order IX of Code of Civil Procedure 1908 “Procedure where defendant only appears”

Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

Rule 8 provides that 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 rule 8 enacts that if the defendant admits the plaintiff’s claim as a whole or a part of it, the court will pass a decree against the defendant upon such admissions and dismiss the suit for the rest of the claim.

REMEDIES:

If a suit is dismissed under Rule 8 then the plaintiff has two remedies to revive his dismissed suit, which are as follows:-

i) Filing a fresh suit before the competent court if the suit is not barred by law; and

ii) The plaintiff may file a petition under Rule 4 of Order 9 to set aside the order of the dismissal of the suit

Do the same provision applies to the non-appearance of the plaintiff due to death?

When the plaintiff does not appear because of death, the court has no power to dismiss the suit. Even if such an order is passed it will amount to a nullity as held in the case of P.M.M. Pillayathiri Amma v. K. Lakshi Amma.

RULE 9 – DECREE AGAINST PLAINTIFF BY DEFAULT BARS FRESH SUIT

1. Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

2. No order shall be made under this rule unless notice of the application has been served on the opposite party.

RULE 10 – PROCEDURE IN CASE OF NON- ATTENDANCE OF ONE OR MORE OF SEVERAL PLAINTIFF‘S

the others do not appear, the Court may, at the instance of the plaintiff or plaintiff’s appearing, permit the suit to proceed in the same way as if all the plaintiff’s had appeared, or make such order as it thinks fit.

Rule 11 – PROCEDURE IN CASE OF NON-ATTENDANCE OF ONE OR MORE OF SEVERAL DEFENDANT fendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear.

APPLICATION TO SET ASIDE THE DISMISSAL

When the suit has been dismissed on the ground of non-appearance of the plaintiff then he can make an application to set aside the order of dismissal. If the court is satisfied with the reason of non-appearance as a sufficient cause then the court can set aside the order dismissing the suit and fix a day for the proceeding of the suit.

SUFFICIENT CAUSE

For considering the sufficient cause of non-appearance of the plaintiff the main point to be considered is whether the plaintiff really tried to appear on the day which was fixed for the hearing or not. When the sufficient cause is shown by the plaintiff for his non-appearance, then it is mandatory for the court to reopen the suit. In absence of sufficient cause, it is upon the discretion of the court to set aside the dismissal or not as held in the case of P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar. The sufficient cause depends upon the facts and circumstances of each and every case.

In the case of Chhotalal v. Ambala Hargovan, the Bombay High Court observed that if the party arrives late and finds its suit dismissed due to his non-appearance then he is entitled to have his suit or application restored with the payment of costs.

The appearance of the plaintiff

When only the plaintiff appears but the defendant does not appear, then an ex-parte order can be passed against the defendant. But, the plaintiff has to prove that the summon was served to the defendant.

If service of the summons is proved then only the court can proceed for an ex-parte against the defendant and the court may pass a decree in favour of the plaintiff. This provision applies only for the first hearing and not for the subsequent hearings of the matter and the same has been held in the case of Sangram Singh v. Election Tribunal.

Even while passing an ex-parte order it is the duty of the court to secure the end of justice even in the absence of the defendant. In the case of Maya Devi v. Lalta Prasad, it has been held by the Supreme Court that -It is the duty of the court to ensure that statements in the plaint stand proven and the prayers asked before the court are worthy of being granted. This provision of passing ex parte order cannot be passed when there are more than one defendants in the case and any of them appears.

EX-PARTE DECREE

When the defendant is absent on the day of the hearing as fixed in the summon an ex-parte decree can be passed. The ex-parte order is passed when the plaintiff appears before the court on the day of the hearing but the defendant does not even after the summon has been duly served. The court can hear the suit ex-parte and give ex-parte decree against the defendant.

An ex-parte decree is a valid one and it is not null and void but can be merely voidable unless it is annulled on a legal and valid ground. An ex-parte can be enforced like a bi-parte decree and it has all the forces as a valid decree as held in the case of Panduranga Ramchandra v. Shantibai Ramchandra.

REMEDIES AGAINST AN EX-PARTE DECREE

1. An Application Under Order 9, Rule 13, Order 9 Rule 13 states that while setting aside ex-parte decree, the defendant may apply to the Court by which the decree was passed for an order to set it aside and if the Court is satisfied that the summons were not duly served, or that he was prevented by any sufficient means from appearing when the suit was called on for hearing, the Court may make such order setting aside the decree against him as it thinks fit, and shall appoint a day for proceeding with the suit, provided that the decree was of such a nature that it could not be set aside as against such defendant but it may be set aside as against all or any of the other defendants also.

2. Appeal Under Section 96 Section 96-Appeal from original decree (2) An appeal may lie from an original decree passed ex parte Unless expressly provided, appeal lies from any decree passed by the court. In cases, where the value of suit does not exceed Rs.10, 000 appeal can only be filed on question of law. When a decree has been passed against the Defendant as Ex-Parte appeal lies. In cases headed by two or more judges, the majority decision shall prevail. In case there is no majority, then the decree of lower court shall be confirmed.

3. A Review Application Under Section 114 of C.P.C. Section 114 states that- Review- Subject as aforesaid, any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a

review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

Section 114 basically empowers the court to review its order if the condition precedent laid down therein are satisfied. the substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided under the Section 114 of the code in terms whereof it is empowered to make such order as it thinks fit[2] In another case Kaptur Agro Forest Enterprises V. Union Of India[3] were the question regarding the concession in respect of and overhead charged was concluded in the earlier writ petition by the allotters and the special leave petition in a special leave petiole by supreme court also dismissed.

Rule 13 Order IX of Code of Civil Procedure 1908 “Setting aside decree ex parte against defendant”

In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Setting aside an ex-parte decree

For setting aside an ex-parte decree an application may be made by the defendant. An application to set aside decree can be made to the court passing that decree. There are certain rules to be followed for setting aside an ex-parte decree and if the defendant satisfies the court with sufficient reason, then only the ex-parte decree which has been passed can be set aside.

Order 9, Rule 13 prescribes two grounds for setting aside an ex-parte decree.

· That the summons was not duly served, or

· That the defendant was prevented by sufficient cause from appearing when the case was called on for hearing.

If either of these conditions is satisfied, the court must set aside the decree and where these conditions are not satisfied the decree cannot be set aside. This question has to be decided on the basis of evidence or affidavits:

l Summons not duly served Prior to proceedings ex parte, a court must record a declaration of due service under Order 5 rule 19 (Issue and Service of Summons, Examination of serving officer), this is mandatory. Where there is nothing to show due compliance with rules 13 (Service on agent by whom defendant carries on business) and 20

(Substituted service) of Order 5, the decree should be set aside. Where the summons has not been duly served, the ensuing proceedings will be a nullity. Due service refers to service which effectively brings the claim to the knowledge of the defendant and is effected in accordance with the provisions of the code relating to service of the summons and in time for the defendant to attend and at the proper address. By virtue of the proviso, an ex parte decree will not be set aside on the ground of irregularity in the service of summons, when the court for reasons to be recorded, is satisfied, that notwithstanding such irregularity, the defendant had knowledge in sufficient time to appear on that date and answer the claim.

l Sufficient cause Where sufficient cause is shown, the decree shall have to be set aside. The term ‘sufficient cause is not susceptible to an exact definition and no hard and fast rule can be laid down to cover all possible cases and each case is to be judged upon its particular circumstances, and where non-appearance is not intentional, a strict view should not be taken to put a party out of court. The term sufficient cause means beyond the control of a party and cannot include cases of extreme negligence.

The term sufficient cause has not been defined anywhere but as held in the case of UCO Bank v. Iyengar Consultancy, it is a question which is determined upon the facts and circumstances of the cases. The test to be applied for this is whether or not the party actually and honestly intended to be present at the hearing and tried his best to do so. There are several instances which have been considered as sufficient cause such as late arrival of the train, sickness of the council, the strike of advocates, death of a relative of party etc.

THE BURDEN OF PROFF THAT THERE WAS A SUFFICIENT CAUSE OF NON- APPEARANCE IS UPON THE DEFENDANT

l Upon such terms as to costs; etc. The rule gives wide discretion to the court in the matter of imposing conditions upon ordering the setting aside of an ex parte decree. A court can make an order of restoration subject to fulfillment of conditions, but it should clearly specify the consequences of non-fulfillment of conditions. The court can also extend the time for fulfillment of the conditions.

l Effect of setting aside Upon setting aside of an ex parte decree, the status quo ante is restored and the trial commences de nova from the stage at which the proceedings were taken ex parte. However, where the decree is set aside on the ground that the claim is fraudulent, the suit cannot be restored and tried.

l Dismissal of setting aside application In appropriate cases restoration can be made u/s 151. An appeal may lie against the dismissal of the application in default.

The limitation period for making an application for setting aside an ex-parte decree is of 30 days.

The grounds on which an ex-parte decree can be set aside are:

1. When the summons has not been duly served.

2. Due to any “sufficient cause”, he could not appear on the day of the hearing.

SUFFICIENT CAUSE

Rule 12 Order IX of Code of Civil Procedure 1908 “Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person”

Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively who do not appear.