THE CODE OF CIVIL PROCEDURE, 1908 1

APPEARANCE AND NON-APPEARANCE OF THE PARTIES

➢ ITNRODUCTION:
The provisions of the Code of Civil Procedure are based on a general principal 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 consequence of their non-appearance. It also provides a remedy for setting
aside an order or dismissal of the suit as also the setting aside of an ex parte decree passed
against the defendant.
➢ APPEARANCE OF PARTIES: RULES 1 AND 12

As stated under Rule 1 of Order 9 of the Code of Civil Procedure, 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. If the plaintiff or a defendant, when ordered to appear in person, do not
appear before the court and neither show the sufficient cause for his non-appearance, the court
is empowered under Rule 12 of Order IX as follows.

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

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

➢ NON- APPEARANCE OF THE PRATIES:

Non-appearance of the party means that a party is not present in person or by their pleaders on
the day fixed in the summons for the defendant to appear before the court of law. Non-
appearance of a party on the first hearing may have a very serious repercussion on his case.

➢ CONSEQUENCES OF NON-APPEARANCE OF PARTIES:

The consequences of non-appearance of the parties can be divided into three parts:
1. Non-appearance of both the parties : Rule 3

Where neither the plaintiff nor the defendant appears before the court when the suit is called
out 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 order if he is able to satisfy the court
that there was sufficient cause behind his non-appearance. If the court is satisfied with the cause
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of non-appearance, then it may set aside the order of dismissal and schedule a day for the
hearing of the suit.

2. Where only plaintiff appears: Rule 6,10

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 ex-parte against the
defendant and the court may pass a decree in favour of the plaintiff.

In Sangram Singh v. Election Tribunal it was held that this provision applies only for the
first hearing and not for the subsequent hearings of the matter.

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

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.

3. Where only defendant appears: Rule 7 – 11

According to Rule 7, where the defendant appears on the adjourned day and assigns a good
reason for his previous non-appearance, the court may hear him upon such terms as the court
directs as to cost treating as if he had appeared on the day fixed for the appearance.

Rule 8 states that where the plaintiff does not appear, and the defendant does and does not
admit the plaintiffs claim, wholly or partly, the Court shall pass an order dismissing the suit.
The Rule also enacts that if the defendant admits the plaintiff’s claim as a whole or a part
thereof, the court will pass a decree against the defendant upon such admission and dismiss the
suit for the rest of the claim.

Rule 9 precludes (bars) the plaintiff thereafter from filing a fresh suit on the same cause of
action. However, he can make an application to set aside the order or dismissal. In Lachi
Tewari v Director of Land Records (AIR 1948 SC 41), it was stated that if the court is
satisfied that there was sufficient cause for his non-appearance the court may set aside the order
of dismissal and fix a day for proceeding with the suit. Rule 9 (2) states that before passing any
such order, notice must be served to the opposite party.
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According to Rule 11, where there are two or more defendants and one or more of them
appears, and the others do not appear, the suit will proceed and at the time of pronouncement
of judgement, the court may make such order as to the absent defendants as it thinks fit.

➢ WHERE SUMMON IS NOT DULY SERVED: RULE 2,5 AND 6

The service of summon to the defendant is a condition precedent to fair trial. In cases where
the summon is duly served and the same is proved by the plaintiff, but the defendant fails to
appear, the court may proceed to the suit ex parte. Where the summon is not duly served on the
defendant or it does not give him sufficient time to represent his case effectively, no decree can
be passed against him

Rule 2 enacts that the suit may be dismissed where the summon is not served on the plaintiff
failure to pay costs for service of summons to defendant or to present copies of the plaint.

Rule 4 states that in cases where the court is satisfied that there was sufficient cause for such
failure. The court shall set aside such order of dismissal and shall fix a day for proceeding with
the trial.

Rule 5 states that 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

Rule 6 (1) (b) enacts that in cases where it is proved that summon is not duly served, the court
shall direct a second summons to be issued and served on the defendant and Rule 6 (1) (c)
enacts that f 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.
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EX-PARTEE DECREE

➢ INTRODUCTION:
The right to be heard in a suit is one of the important principles of the natural justice and our
Civil Procedure duly provides for such right to the party. Despite the sufficient opportunity
provided if a defendant absents from the court, when he called upon on the day of hearing
mentioned in the summons duly served on him, the court is empowered to proceed ex parte and
to pass an ex parte decree against such defendant under Order 9, Rule 6 (1) (a).
➢ MEANING OF EX PARTE DECREE:
“Ex parte” is a Latin phrase meaning “on one side only; by or for one party.”
When the suit is called out for hearing and the plaintiff appears and the defendant does not
appear and summons is duly served, the court may proceed ex parte against him and can pass
a decree called ‘ex parte’ decree.
➢ REMEDIES AGAINST EX PARTE DECREE:
The defendant, against whom an ex parte has been passed, has the following remedies namely:-
1. Application to set aside the ex parte decree (Order 9 Rule 13)
2. An appeal against such decree; section 96(2) (or to file a revision under section 115 where
no appeal lies;
3. Apply for review under Order 47 Rule 1; or
4. File a suit on the ground of fraud.
In Bhanu Kumar Jain V. Archana Kumar, (2005) 1SCC 787 it was held that the above-
mentioned remedies are concurrent and they can be prosecuted simultaneously or concurrently.
1. APPLICATION UNDER ORDER 9, RULE 13:
An application under Order 9 Rule 13 of CPC dealing with setting aside of decree ex parte
against the defendant can be entertained only the following two grounds;
1) Where summons was not duly served
2) Where the defendant was prevented from sufficient cause from appearing where the fact
called for hearing.
However, this rule is available only to the person who is a default of appearance as per Rule 6
of Order 9. Under this rule, only the defendant can avail this remedy not the non-party to the
suit unless if he proves that his interest is affected by such decree.
The limitation period for filing an application for setting aside ex-parte decree is thirty days
from the date of the decree.
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2. An appeal under sec. 96:

An ex parte decree is a decree under section 2(2) of the Code and, therefore, an appeal can be
filed against such decree by the aggrieved party under section 96(2) of the Code.
3. A review application under sec. 114:
Provisions of the Order 47 Rule 1 and section, 114 of the CPC 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 sec.114 of the code in terms wherein it is empowered to make such order
as it deems fit.
4. Filing of a suit on the ground of fraud:
A suit to set aside an ex parte decree is not maintainable. But if an ex parte decree is alleged to
have been obtained by the fraud by the plaintiff, the defendant can file a suit to set aside such
decree. It is settled law that fraud damages the most solemn transactions. In such suits, the onus
is on the party who alleges that the ex parte decree passed against him was fraudulent.
To maintain such action, it should be proved that the fraud alleged must be actual, positive
fraud, a mediated and intentional contrivance so as to keep the parties and the court under the
dark so as to obtain a decree by that contrivance.
The suit is maintainable despite unsuccessful application made under Rule 13 Order 9 or
rejection of application for an appeal.
Non-Service of Summons:
The fraudulent suppression of a summons is a valid reason to overturn an ex parte decree
rather than the simple lack of service of a summons.
➢ NO DECREE TO BE SET ASIDE WITHOUT NOTICE TO THE OPPOSITE
PARTY ORDER 9 RULE 14:
No decree shall be set aside on any such application as aforesaid unless notice thereof has
been served on the opposite party.
➢ EFFECT OF SETTING ASIDE EX-PARTE DECREE:
The effect of setting aside an Ex-parte decree is that the suit is restored, and the Court should
proceed to decide the suit as it stood before the decree. The trial should commence de novo and
the evidence that had been recorded in the Ex-parte proceedings should not be taken into
account.
➢ CONCLUSION:
Where in any suit, an ex parte decree has 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 an ex parte decree. During all these procedures the court must keep in mind that nowhere
any miscarriage of justice is done while passing an ex-parte decree.
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