Under Order 9, Rule 6(1)(a) the court may proceed ex-parte
and pass an
when it deems fit that the defendant has absent himself from
the court on the date of hearing stated in the summons served to him in
accordance with the provisions of the Code.
Order 9, rule 6(1)(a) states that:
Where the plaintiff appears and the defendant
does not appear when the suit is called on for hearing
. The Rule further
classifies this situation into three distinct scenario
- 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.
- 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.
- 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.
Decree can only be given in relation to a suit. Although CPC does not define
what suit means, in Hansraj vs Dehradun Mussoorie Tramways Co. Ltd. the Privy
Council defined the term suit as a civil proceeding instituted by the
presentation of a plaint
Consequences of Non Appearance of Parties (Order 9)
The general provisions of CPC are based on the principle that both the parties
must be given an opportunity to be heard. The proceedings must not be held to
the disadvantage of one party. Order 9 lays down rules regarding the appearance
and the consequences of nonappearance of a party in the hearing.
Appearance and Non-Appearance
Rule 1 - Parties to appear on day fixed in summons for defendant to appear and
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.
Dismissal of Suits
Rule 2 - Dismissal of suit where summons not served in consequence of
plaintiff’s failure to pay cost:
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 or 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.
Rule 3 - Where neither party appears, suit to be dismissed:
Where neither party appears when the suit is called on for hearing, the Court
may make an order that the suit be dismissed
Rule 4 - 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.
Rule 5 - Dismissal of suit where plaintiff after summons returned unserved,
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 periods 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-
- he has failed after using his best endeavors to discover the residence
of the defendant, who has not been served, or
- such defendant is avoiding service of process, or
- 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
Ex parte Proceedings
Rule 6 - Procedure when only plaintiff appears
- Where the plaintiff appears and the defendant does not appear when the
suit is called on for hearing, then-
(a) When summons duly servedif it is proved that the summons was duly served,
(b) When summons not duly servedif it is not proved that the summons was duly
serve, the Court shall direct a second summons to be issued and served on the
(c) When summons served but not in due timeif 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 future day to be fixed by the Court, and shall direct notice of such
day to be given to the defendant.
- Where it is owing to the plaintiffs' 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 7- 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 for his appearance.
Rule 8 - 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 9 - Decree against plaintiff by default bars fresh suit:
- 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
- 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
Where there are more plaintiffs than one, and one or more of them appear, and
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
Where there are more defendants 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.
Rule 12 - 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 provisions of the foregoing
rules applicable to plaintiffs and defendants, respectively who do not appear.
Setting aside Decrees ex parte
Rule 13 - Setting aside decree ex parte against defendant
In any case in which a decree is passed 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:
Provided that where the decree is of such a nature that it cannot be set aside
as against such defendant only it may be set aside as against all or any of the
other defendants also. And that no Court shall set aside a decree passed ex
parte merely on the ground that there has been an irregularity in the service of
summons, if it is satisfied that the defendant had notice of the date of hearing
and had sufficient time to appear and answer the plaintiff's claim.
Rule 14 - No decree to be set aside without notice to opposite party.
No decree shall be set aside on any such application as aforesaid unless notice
thereof has been served on the opposite party.
Remedies Against Ex Parte Decree
- 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.
- 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.
- 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
In another case Kaptur Agro Forest Enterprises V. Union Of India 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.
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
This question has to be decided on the basis of evidence or affidavits:
The following types of orders can be passed under rule 13:
- 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 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
- Sufficient cause
Where sufficient cause is shown, the decree shall have to be set aside. The
term ‘sufficient cause’ is not susceptible of 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.
- Upon such terms as to costs; etc.
The rule gives a 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.
- 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.
- 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.
An application under Order 9 rule 13 must in accordance with the bounds of
Art. 164 of the Limitation Act 1908 be made within 30 days of the decree.
- An order setting aside the decree which is not appealable nor can it be
attacked under S. 105.
- An order setting aside the decree on certain terms which is by itself
- An order rejecting an application under Order 9 rule 13 is dismissed on
merits; it cannot be attacked under S. 105 before the court hearing an
appeal against the decree.
- Pending proceedings to set aside the decree, execution can be stayed.
An order setting aside an ex parte decree is not a decree. A revision
against the order may lie if the conditions of S. 115 are satisfied, as for
instance, where the order is contrary to the provisions of Order rule 13, or
where the court has disposed of the application upon a consideration of the
merits of the decree, or has refused to set aside the decree despite the
fact that summons was not duly served or has disposed of the matter on an
erroneous view regarding limitation etc. However, no revision will lie if an
alternate remedy is available.
- Res Judicata under Code of Civil Procedure, 1908
Section 11 of CPC embodies the doctrine of res judicata or the rule of
conclusiveness of a judgement, as to the points decided either of fact, or
of law, or of fact and law, in every subsequent suit between the same
parties. It enacts that once a matter is finally decided by a competent
court, no party can be permitted to reopen it in a subsequent litigation. In
the absence of such a rule there will be no end to litigation and the
parties would be put to constant trouble, harassment and expenses.
Section 11 says thus:
No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former
suit between the same parties, or between parties under whom they or any of them
claim, litigating under the same title, in a Court competent to try such
subsequent suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.
Ex parte decree as Res Judicata
An ex parte decree, unless it is set aside, is a valid and enforceable
decree. However, the real test for res judicata is whether the case was decided
on merits. The real test for deciding whether the judgment has been given on
merits or not is to see whether it was merely formally passed as a matter of
course, or by way of penalty for any conduct of the defendant, or is based upon
a consideration of the truth or falsity of the plaintiff's claim,
notwithstanding the fact that the evidence was led by him in the absence of the
defendant. Thus, a decree may not act as res judicata merely because it was
passed ex parte. It therefore acts a res judicata.
Where a defendant absents himself from court on date of hearing mentioned in the
summons duly served on him, the court is empowered under Order 9, Rule 6(1)(a)
to proceed ex parte and to pass an ex parte decree against such defendant
Or the Order 9 rule 13 , said that when an setting aside decree ex-parte
against defendant .in which the a decree is passed ex parte against the
defendant, he may apply to the court by which the decree was passed for an order
to set it aside and if he satisfies that 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 against him
upon such term as to cost payment to court or otherwise as it think fit and
shall appoint a day for proceeding with the suit.
- Hansraj vs Dehradun Mussoorie Tramways Co. Ltd AIR 1929 All 353.
- Board of Control for Cricket in India v. Netaji Cricket Club AIR 2005 SC
- Kalpatru Agro Forest Enterprises V. Union of India AIR 2002 SC1402