The provisions of the code of Civil Procedure are based on a general principle that, as far as possible, 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 well as the setting aside of an ex-parte decree passed against the defendant. 14 Rules in total deal with the appearance of the parties and the consequences of non-appearance.
The CPC outlines various rules and provisions regarding appearances and non-appearances of parties. It provides guidelines for what happens when a party is absent during hearings, including the potential for decisions or orders to be made in their absence, such as ex-parte decrees. It also provides provisions for parties to seek relief or remedies if they have valid reasons for not being able to appear in court. In the Code of Civil Procedure (CPC), “appearance” and “non-appearance” refer to the participation or absence of the parties involved in a legal case during court proceedings.
When a party “appears,” it means they actively engage in the legal proceedings by being present in court or by being represented by their legal representatives (pleader). This can include attending hearings, presenting arguments, submitting evidence, and responding to the court’s directions or questions. On the other hand, “non-appearance” signifies the absence of a party from the court proceedings. If a party is required to be present in court but fails to attend or be represented by their legal representative, it is considered a “non-appearance.” This can have consequences depending on the stage of the case and the rules outlined in the CPC.
Appearance and non-appearance of parties during trial before the court are crucial issues in resolving civil disputes. Because mere appearance or non-appearance can determine the ultimate result of a civil litigation, the provisions of the Code of Civil Procedure (CPC), 1908, are based on a general principle that, as far as possible, no proceeding in a court of law should be conducted to the detriment of any party in his/her absence. Also, it is the duty of the concerned party to be aware of his rights, show vigilance towards the court, and establish his/her claim by taking proper measures.
What is Order IX?
As mentioned, Order IX of the Civil Procedure Code, 1908[1], deals with the appearance of the plaintiff and the defendant before a court and also highlights the consequences of non-appearance. Order IX under the schedule provides the appearance of the parties before the court and lays the consequences of the non-appearance in a threefold manner:
When both parties have not appeared
When the defendant has not appeared
When the plaintiff has not appeared
Now, we will look at each of the instances in detail and understand this.
The Appearance of Parties to the Suit
According to the provisions of Rule 1 within Order IX[2], the involved parties in the lawsuit must make their presence felt in court, either through personal appearance or by means of their legal representatives, on the designated date mentioned in the summons.
In the event that the plaintiff or defendant, upon being directed to attend the proceedings personally, fails to do so without furnishing a satisfactory reason for their non-appearance, Rule 12 of Order IX[3] confers upon the court the following powers:
In case of the plaintiff’s non-appearance, the suit will be dismissed.
If the defendant does not make an appearance, an ex-parte order will be issued.
Non-Appearance of Both Parties to the Suit
In situations where both the plaintiff and the defendant do not appear before the court during the hearing of the suit, the court is granted the authority to dismiss the suit per Rule 3 of Order IX[4]. It’s important to note that the dismissal of the suit under this provision does not prevent the initiation of a fresh suit based on the same cause of action, as outlined in Rule 4[5].
Furthermore, the plaintiff has the option to request the court to reconsider the dismissal if they can sufficiently demonstrate that valid reasons existed for their non-appearance. Should the court find the justification for the non-appearance acceptable, it has the discretion to overturn the dismissal order and establish a new hearing date for the suit.
In H.K. Shah v. T.S. Bhasin[6], it was clearly held by the court that the parties have a right to be heard and given appropriate opportunities for the same.
Non-Appearance of Plaintiff & Appearance of the Defendant
The regulations pertaining to instances where only the defendant appears are outlined in Rules 7–11 of Order IX[7]. When the defendant is present but the plaintiff is not, two scenarios may arise:
The defendant does not concede to the plaintiff’s claim, either in whole or in part.
The defendant concedes to the plaintiff’s claim.
If the defendant does not acknowledge the plaintiff’s claim, the court will order the dismissal of the suit. However, when the defendant fully or partially accepts the plaintiff’s claim, the court is authorized to issue a decree against the defendant based on that admission. For the remaining aspects of the claim, the suit will be dismissed.
Dismissing the plaintiff’s suit without affording them a hearing is a significant matter and should only be employed if the court is convinced that such dismissal is necessary in the interest of justice, as established by Beaumont, C.J. in the case of Shamdasani v. Central Bank of India[8].
In situations where the plaintiff fails to appear due to their demise, the court lacks the authority to dismiss the suit. Even if such an order is issued, it would be considered void, as determined in the case of P.M.M. Pillayathiri Amma v. K. Lakshi Amma[9].
In Lakshmi Commercial Bank v. Hansraj, where the issue is framed in a suit after hearing the parties, it is not proper for the court to dismiss due to absence of the plaintiff.[10]
If a suit is dismissed under Rule 8, then the plaintiff has two remedies to revive the dismissed suit, which are as follows:
Filing a fresh suit before the competent court, if the suit is not barred by law; and
The plaintiff may file a petition under Rule 4 of Order IX to set aside the order to dismiss the suit.
Application to Set Aside the Dismissal
After a suit has been dismissed due to the plaintiff’s non-appearance, there exists a provision for the plaintiff to submit an application aimed at overturning the dismissal order. Upon the court’s satisfaction with the presented justification for the non-appearance as a valid reason, the court holds the authority to annul the dismissal order and establish a new date for the continuation of the proceedings.
The key factor in assessing the adequacy of the plaintiff’s reason for non-appearance is whether the plaintiff made genuine efforts to attend the scheduled hearing. When the plaintiff demonstrates a legitimate reason to justify their non-appearance, it becomes obligatory for the court to reinstate the suit. In cases where an adequate reason is absent, the court has the discretion to either rescind the dismissal or uphold it, as ruled in the case of P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar[11]. The determination of sufficient cause is contingent upon the specifics of each individual case.
In the instance of Chhotalal v. Ambala Hargovan[12], the Bombay HC observed that if a party arrives after the stipulated time and discovers their suit has been dismissed due to their non-appearance, they are entitled to have their suit or application reinstated upon payment of associated costs.
Non-Appearance of Defendant & Appearance of the Plaintiff
In instances where only the plaintiff makes an appearance while the defendant does not, the court has the authority to issue an ex-parte order against the absent defendant. (Rule 6 and 10) However, the plaintiff must substantiate that the summons was properly served to the defendant [13].
Only upon the verification of proper summons service can the court proceed to issue an ex-parte order against the defendant, which might result in a favourable decree for the plaintiff. This provision specifically applies to the initial hearing and not subsequent ones, as established in the legal precedent of Sangram Singh v. Election Tribunal [14].
Remedy available to defendant: 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 [15] of CPC, but there must be a sufficient cause.
Even when granting an ex-parte order, the court bears the responsibility of ensuring justice prevails, even in the defendant’s absence. In the case of Maya Devi v. Lalta Prasad [16], the Supreme Court ruled that it is the court’s duty to ascertain the validity of statements in the plaintiff’s submission and the appropriateness of the requested reliefs. This provision for ex-parte orders cannot be applied if there are multiple defendants in the case and any one of them makes an appearance.
Ex-Parte Decree
The right to be heard in a suit is one of the important principles of natural justice, and our Civil Procedure duly provides for such right to the party. In situations where the defendant is noticeably absent on the scheduled hearing day as outlined in the summons, an ex-parte decree can be rendered. This type of decree is issued when the plaintiff appears before the court on the designated day, but the defendant fails to appear despite proper summons being served. In such instances, the court is empowered to conduct the proceedings ex-parte and deliver a decree in favor of the plaintiff in the defendant’s non-appearance under Rule 6(1)(a) [17].
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 [18].
Setting Aside Ex-Parte Decree
Order 9 Rule 13 [19] provides a remedy for the defendant to apply to set aside the ex-parte decree that was passed due to the defendant’s non-appearance in the civil suit. The court only sets aside the ex-decree when the defendant presents a satisfactory reason in court or the summons is not served well. There are two grounds based on which the ex-parte decree can be set aside:
When summons are not duly served
Due to “sufficient cause,” the defendant could not appear on the day of the hearing
1. Summons duly not served well
When the suit is filed in court, from the filing date of the suit to thirty days afterward, the summons must be served to the defendant. The summons is the official notice that the defendant must appear in court on their behalf. However, there are certain scenarios, such as the postal address being incorrect or changed, or the plaintiff has not paid the fees. When the summons is not served properly to the defendant or the defendant does not get enough time to appear before the court, the court may set aside the ex parte decree.
In Sushil Kumar Sabharwal v. Gurpreet Singh and Ors (2002) [20], the Court admitted that the summons was not duly served to the defendant and that the defendant did not have enough time to be present in court.
2. Sufficient cause
When the court finds sufficient grounds for the non-appearance of the defendant, the court will set aside the ex parte decree. The term ‘sufficient cause’ is not defined in the code. The court will determine through its interpretation in different cases. As held in the case of UCO Bank v. Iyengar Consultancy [21], 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 counsel
Strike of advocates
Death of a relative of the party
The burden of proof that there was a sufficient cause of non-appearance is upon the defendant.
In G.P. Srivastava v. Shri R.K. Raizada & Ors. (2000) [22], the Court said that if the party is not able to set any ‘sufficient cause’ for his non-appearance on the fixed date, then the ex parte proceedings will be initiated against him.
In Parimal v. Veena @ Bharti (2011) [23], the Supreme Court stated that the term ‘sufficient cause’ means the defendant did not act negligently and genuinely wanted to be present when the case was summoned for hearing and used his best effort to do so.
Remedies Against Ex-Parte Decree
When a defendant presents sufficient cause before the court for non-appearance, the ex-parte decree can be set aside. Once the court accepts the defendant’s reason, it will set aside the decree. A defendant against whom an ex-parte decree has been issued has the following remedies:
Apply to the court under Rule 13 Order 9 for setting aside the decree
Appeal against that decree under Section 96(2) [24]
Apply for review under Order 47 Rule 1 [25]
File a suit on the ground of fraud
File a revision under Section 115 [26]
Application by Defendant Under This Rule
The limitation period for making an application for setting aside an ex-parte decree is 30 days. A defendant can make an application under this order because the summons had not been served properly and he had sufficient grounds for non-appearance before the court.
If the plaintiff did not appear, he may apply to set aside the order of dismissal after the lawsuit has been dismissed. The order dismissing the lawsuit may be reviewed and a date set for its continuation if the court finds the reason for non-appearance to be a sufficient justification.
In Subodh Kumar v. Shamim Ahmed (2019) [27], the Supreme Court held that if the defendant proves that the summons had not been appropriately served, then the court could set aside the ex parte decree passed against all the defendants.
When Summon is Not Served
Rules 2 to 5 of Order IX [28] delineate the provisions for scenarios where the summons has not been served to the defendant. A fundamental principle of procedural law is that every party must be afforded a fair chance to present their case. Providing notice of legal proceedings against them is essential to achieve this. Therefore, serving a summons to the defendant is obligatory and serves as a condition precedent.
When a summons has not been served, or the defendant has not been given adequate time for proper appearance of their case, a decree cannot be issued against them, as established in the case of Begum Para v. Luiza Matilda Fernandes [29].
Rule 2 of Order IX [30] also stipulates that if the plaintiff fails to cover the costs for serving summons to the defendant, the suit may face dismissal. However, such dismissal cannot take place if the defendant personally appears on the day of the hearing or through legal representation. In the event of such a dismissal, the plaintiff retains the right to file a fresh suit. If there is a valid reason behind the failure to pay costs, the court can overturn the dismissal order.
When the summons is returned unserved, and the plaintiff fails to apply for a fresh summons within 7 days of the return, as indicated by the defendant or any of the defendants, the court holds the authority to dismiss the suit against the defendant. If it is not proven that the summons was not duly served to the defendant, the court can direct the issuance of a fresh summon for proper service.
In situations where service of the summons is proven but the time allocated in the summon is insufficient for the defendant to respond on the appointed day, the court can postpone the hearing to a later date and provide notice to the defendant.
Conclusion
The concept of appearance and non-appearance parties is pivotal in the Code of Civil Procedure framework. Parties are required to actively participate by appearing in court proceedings or being represented by their legal representatives. This ensures a fair opportunity to present their case, respond to arguments, and engage in the legal process.
Non-appearance, when a party fails to attend proceedings, can lead to consequences such as ex-parte orders or decrees, where decisions are made in the absent party’s absence. However, the CPC also provides avenues for parties to seek relief if they have valid reasons for non-appearance, emphasizing the importance of fairness and due process. Hence, appearance and non-appearance of the parties have a great impact on the civil proceeding. It is the duty of the parties to appear before the court at the time fixed by the court to appear and helps the court to settle the dispute, otherwise, the absent party may suffer and not entitled to get justice.
References:
Civil Procedure Code 1908, O. IX, No. 5, Acts of Parliament, 1908 (India).
Civil Procedure Code 1908, O. IX, R.1, No. 5, Acts of Parliament, 1908 (India).
Civil Procedure Code 1908, O. IX, R.12, No. 5, Acts of Parliament, 1908 (India).
Civil Procedure Code 1908, O. IX, R.3, No. 5, Acts of Parliament, 1908 (India).
Civil Procedure Code 1908, O. IX, R.4, No. 5, Acts of Parliament, 1908 (India).
H.K. Shah v. T.S. Bhasin, AIR 1972 J&K 19.
Civil Procedure Code 1908, O. IX, R.7-11, No. 5, Acts of Parliament, 1908 (India).
P.D. Shamdasani v. Central Bank Of India Ltd, AIR 1952 SC 59.
P.M.M. Pillayathiri Amma v. K. Lakshmi Amma And Ors., AIR 1967 KER 135
Lakshmi Commercial Bank v. Hansraj, AIR 1981 P& H 228.
P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar, AIR 1940 MAD 375.
Chhotalal v. Ambala Hargovan, AIR 1925 BOM 423.
Civil Procedure Code 1908, O. IX, R.6, No. 5, Acts of Parliament, 1908 (India).
Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425.
Civil Procedure Code 1908, O. IX, R.13, No. 5, Acts of Parliament, 1908 (India).
Maya Devi v. Lalta Prasad, AIR 2014 SC 1356.
Civil Procedure Code 1908, O. IX, R.6(1)(a), No. 5, Acts of Parliament, 1908 (India).
Pandurang Ramchandra Mandlik v. Smt. Shantabai Ramchandra Ghatge, 1989 AIR SC 2240.
Civil Procedure Code 1908, O. IX, R.13, No. 5, Acts of Parliament, 1908 (India).
Sushil Kumar Sabharwal v. Gurpreet Singh, AIR 2002 SC 2370.
Uco Bank v. Iyengar Consultancy Services Pvt. Ltd, 1994 SCC.
G.P. Srivastava v. Shri R.K. Raizada, (2000) 3 SCC 54.
