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.
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.
Appearance of the parties; Rule 1 and Rule 12:
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.
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.
Non-Appearance Of Both Parties To The Suit:
When neither the plaintiff nor the defendant appears before the court when the
suit is called for hearing, then the court is empowered to dismiss the suit
under Rule 3 of Order IX. 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:
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.
Appearance Of Defendant:
The provisions laid down to deal with the appearance of only the defendant has
been laid down from rule 7-11 of Order IX. When the defendant appears but there
is non-appearance of the plaintiff, then there can be two situations: The
defendant does not admit the claim of the plaintiff, either wholly or any part
of it. The defendant admits the plaintiff 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 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.
Do the same provision applies to the non-appearance of the plaintiff due to
When the plaintiff does not appear because of death, the court has no power to
dismiss the suit. Even if such order is passed it will amount to a nullity as
held in the case of P.M.M. Pillayathiri Amma v. K. Lakshi Amma.
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.
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 hearing or not. When 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.
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 find its suit dismissed due to his
non-appearance then he is entitled to have his suit or application restored with
the payment of costs.
When Summon Is Not Served:
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
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.
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:
When an ex-parte decree has been passed against a defendant, the following
remedies are available to him:
- He can apply to the court under rule 13 of Order IX for setting aside
the ex-parte decree passed by the court.
- He can appeal against that decree under section 96(2) of the Code or,
prefer revision under section 115 of the code when no appeal lies.
- He can apply for a review under Order 47 Rule 1
- A suit on the ground of fraud can be filed.
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.
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:
- When the summons has not been duly served.
- Due to any "sufficient cause", he could not appear on the day of the
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 proof that there was a
sufficient cause of non-appearance is upon the defendant
The appearance and non-appearance of parties have an effect on the case and
whether it will be carried on for the next hearing, dismissed or an ex-parte
decree will be given. When none of the parties appears then the suit can be
dismissed by the court. The suit is carried on for the next hearing only when
both parties appear before the court.
If the plaintiff appears before the court but no defendant appears on the day of
hearing then the court may pass an ex-parte decree against the defendant. The
situations when there is non-appearance on the behalf of the plaintiff then the
suit can be dismissed if the defendant denies the claim of the plaintiff and if
he admits to any claim the court can pass an order against him on the ground of
When any suit is dismissed or an ex-parte order is passed then it can also be
set aside if there is sufficient reason behind the absence of a party. If the
court is satisfied with the reason of absence then it may set aside the order of
dismissal or an ex-parte order. During all these procedures the court must keep
in mind that nowhere any miscarriage of justice is done during the dismissal or
while passing an ex-parte order.