Order-IX : Appearance of parties and Consequence of non-Appearance

Introduction:

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. 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.

Meaning of Appearance:

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 representative (pleader). Mere presence cannot be considered as appearance under CPC , so it means the appearance made by the pleaders who is able to answer all the material questions which are relevant to the judicial proceedings in the court of law. There are 14 rules of Order-IX which are as follows:

• Rule -I
  Rule I of Order IX is related to the appearance of the parties on the date of first hearing of the case. It declares the mandatory presence of the parties before the court of law on the day fixed by the court under the summon issued on the defendant.
  Simply Rule 1 says that when a summon is issued by the Court to the defendant to appear before the court and to answer the material questions.
  Then the parties (plaintiff and defendant) shall attend the court personally or through their respective pleaders.
  After such presence suit shall be heard by the court unless the hearing is adjourned to a future date by the court.
• Rule 2
  Rule 2 of Order IX enumerated about the circumstances when the Suit will be at Dismissal due to the non-depositing of processing fee so as to serve summons by the plaintiff:
  These circumstances are :-

1. 1. 1. When plaintiff failed to pay the Court fee.
      2. When plaintiff failed to pay the postal charges for service of summons.
      3. When plaintiff fails to present copies of the plaint as required by rule 9 of Order VII.
         
         Although there is an exception to this rule when suit cannot be dismissed by the court:

• • • • When defendant attends in person or through his agents to appear and answer the material questions.
        
        In short According to Rule 2 of the Order IX, the failure on the part of the plaintiff to submit any processing fee determined by the court of law on any stipulated date. Then such a failure would result in the dismissal of the suit by the court. However, no such dismissal to the case can be made where the defendant in person or through his agent attend the proceedings of the court and answers all the material questions possessed by the court.

Now there may be mainly three situations after issuing summons:

1. Non-Appearance of Both the 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 as per Rule 3 of Order IX. 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.

   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.

   Rule 3 and Rule 4 in this regard has mentioned it very clear.

   According to Rule 3: Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

   According to Rule 4: 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 dismissal aside , and if he satisfies the court

   • That there was sufficient cause for failure of plaintiff to pay court fee or postal charges as mentioned in rule 2,
   • That he has sufficient cause for non-appearance in the court.

   The court on so satisfied shall make an order setting aside the dismissal and shall appoint a day for the proceeding with the suit.
   

2.  The Appearance of the Plaintiff but not Defendant
   

   There are two rules regarding the appearance of Plaintiff Rule-6 and Rule-10.

   Rule 6 of Order IX, when the plaintiff is present but the defendant is absent on the date of peremptory hearing on a prescribed date. According to Rule 6 of Order IX, when the plaintiff is present but the defendant is absent on the date of peremptory hearing on a prescribed date of hearing then the court takes the decision about the consequence of such non-appearance with respect to the status of summon which is served to the parties in the case by the court of law. This provision, however, is confined to first hearing and does not per se apply to subsequent hearings.

   Following are the consequences of non-appearance of the defendant and the appearance of the plaintiff with respect to varying statuses of the summon which is served:

   • When Summon duly Served: In the case where the summon is duly served the court can declare that the suit shall be heard ex-parte;
   • When Summon not duly Served: In the case where the summon is not duly served then, the court can order the issue of a second summon and that the same to be served to the defendant;
   • When Summon Served but not in due time : When the summon is served to the defendant but the sufficient time was not given to him to make an appearance in the court of law and answer the material questions in the case on the day fixed by the court. The court shall postpone and fix the hearing of the case to some other day which shall be notified to the defendant;

   When in a case the delay in issuance to the defendant is caused due to the fault of the plaintiff, the court may order the plaintiff to pay the costs occasioned by the delay in the proceedings.

   According to Rule 10 : Where there are two or more plaintiffs and one or more of them appear and the others do not appear, the court may permit the suit to proceed as if all the plaintiffs had appeared, or make such order as it thinks fit.

   Case Laws

   Sangram Singh v. Election Tribunal.

   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 in the case.

   Maya Devi v. Lalta Prasad

   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.

3. Appearance of Defendant but not Plaintiff
   

   The regulations pertaining to instances where only the defendant appears are outlined in Rule 7-11 of Order IX. When the defendant is present but the plaintiff is not, two scenarios may arise:

   1. The defendant does not concede to the plaintiff’s claim, either in whole or in part: If the defendant does not acknowledge the plaintiff’s claim, the court will order the dismissal of the suit.
   2. The defendant concedes to the plaintiff’s claim: 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.

   If the case of the plaintiff has been dismissed by the court under Order IX of the CPC then the plaintiff has two options to revive his case in the court of law. Which are as follows:

   • The plaintiff can file a fresh suit in the court of law if the same has not been barred by any law in force; or
   • The plaintiff can file a petition under Rule 4 of Order IX of Civil Procedure Code, 1908. According to Rule 4 of the Order where a case has been dismissed in pursuance of Rule 2 or Rule 3 of the Order IX then the plaintiff can apply for an order for the setting aside of dismissal.

   It may be noted that this rule (Rule 8) will apply to a case where there is only one plaintiff and he does not remain present, or there are two or more plaintiffs and allow them remain absent. Where there are more plaintiffs than one, and one or more of them appear, Rule 10 will apply.
    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. Such an order is a nullity in as much as this rule applies to a defaulter and not to a dead man.

   According to Rule 11 : Where there are two or more defendants and one or more of them appear and the others do not appear, the suit will proceed and at the time of pronouncement of the judgment, the court may make such order as to the absent defendants as it thinks fit.

   Case Laws

   Venutai v. Sadashiv,  1975 Bombay High Court held that when there is more than one defendant and one or or more of them appear and others do not appear  In such a case, a decree may be contested as one against some of the defendants and ex parte against the rest.

   Precisely it can be stated as per rule 8 of Order IX Suit shall be dismissed when plaintiff doesn’t appear when the suit is called for hearing. But in circumstances where defendant admits the claim full or partially , court shall pass a decree against the defendant  upon such admission to such part as was admitted.

    Case Laws :

   The Secretary, Department of Horticulture, Chandigarh and An. vs. Raghu Rai  In this case the court held that the plaintiff should not suffer because of the non-appearance of the counsel appointed by him with good faith that he will make an appearance without any reasonable cause in the court of law whenever the plaintiff is called for in the court. As such non-appearance by the counsel representing the plaintiff without any reasonable cause is not only unprofessional and unfair to the plaintiff but is also unfair and discourteous towards the court of law. And so the plaintiff should not suffer because of the fault of the counsel he has hired in good faith.

   Shamdasani v. Central Bank of India In this case it was held by the court that 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.

   
   
   

   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.

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