Project Report on

Study on the appearance of parties and consequences of non-appearance-An

Analysis.

Submitted by

Anusha Nookala.

Division C

PRN No. 19010324067

Class 2019-24

Symbiosis Law School, Hyderabad.

In

April 2021

Under the guidance of

Dr Pankaj Umbarkar.
 1. INTRODUCTION:

1.1 Shastras, Kautilya, Artshastra provide us with the ancient judicial system followed in
ancient India. The administration of justice was very well developed and sophisticated
according to the literature.1 Vyavahara referred to the case filing, Puvapaksha referred to the
modern complaint, Uttar to the written statement. Trials were known as kriya and verdict as
nirnaya. 2Trial by ordeal and trial by jury were the two known practices. There was no
concept of lawyers and advocates. In the 12th century when Muslim rule was set in India, they
did not trouble themselves much with the judicial aspects and left it to the Hindus. 3 It was not
until the Tughlaq era that there was a compilation of code of civil procedure, Fiqha-e-Feroze
Shahi. 4These rules were followed until the reign of Aurangzeb, during which there was the
introduction of Fatwa-i-Alamgiri. Plaintiff was called muddai, defendant, the mudda allaih,
qazis were in charge of the administration of justice.5 The Mughal period observed many
changes in the system. Qazis were administrators of the law. However, the kings still
remained above the law. The Royal Charter of 1600 which established the East India
Company, brought people living in India, under their control. 6 From 1661 to 1726, laws
based on equity, good conscience and justice were followed in alignment with the laws
prevalent in England. 7Following Warren Hastings directions in 1772, the concerns of people
relating to their religion were primarily governed by their personal texts. 8This however
changed after the charters of 1833 and 1853 when codification of laws has begun. 9 It was in
1908, the Code of Civil Procedure was codified. This code lays down the procedure for trying
civil cases in civil courts.10

Appearance and non-appearance are a part of the procedural law and thus is dealt with under
the Code of Civil Procedure, 1908. 11 Appearance and non-appearance have many
implications inclined with it including alteration of the decision in favour of the appearing
party. Code of Civil Procedure, 1908, is based on the general principle, no proceeding in a

1
Krishna Agrawal & Neha Dixit, Civil Justice in India, 3 BRICS L.J. 71 (2016).
2
Id.
3
Id.
4
Id.
5
Id.
6
Id.
7
Id.
8
Id.
9
Id.
10
Code of Civil Procedure, No. 5 of 1908, Acts of Parliament, (1908).
11
Id.
 court of law should be conducted to the detriment of any party in their absence. 12 To ensure
the same, it lays a duty on the parties to be present at the time of their proceedings. Order IX 13
of this Act deals with the provisions relating to the consequences of non-appearance of
parties. The primary question in such cases before the court of law is to verify if the summons
were duly served, and if they were, were they served in due time providing the defendant
sufficient time to prepare himself/herself to appear before the court of law.14  

1.2: SCOPE:

The scope of this paper extends to the analysis of the provisions of Code of Civil Procedure,
1908 concerned with the meaning of the appearance of parties before the court of law,
consequences of non-appearance of party/parties (Rule2, 3, 4, 8, 9 9(A), 6, 13, 13(A)), the
remedies available to the non-appearing party/parties (Order IX Rule 13, s.12, s.114, s.96,
s.115, suit…)15 and the present judicial perspective concluded by the author’s opinion
regarding the same. This research is limited to the Code of Civil Procedure,1908 16 and
geographical territory India and does not cover global/international laws/perspective.

1.3: RESEARCH QUESTIONS:

1. What are the consequences of non-appearance of one or both the parties of the civil suit under
the Code of Civil Procedure?

2. What are the remedies available to the aggrieved party under this Code?

3. What are the grounds on which such remedies can be availed?

4. What is the present judicial perspective on the same?

5. Are the above provisions of the Code of Civil Procedure and judicial pronouncements
serving the purpose and intent behind the legislature and providing justice?

12
Abhavya Rabra, Appearance and non-appearance of the parties, 4 JOURNAL OF CONTEMPORARY ISSUES OF
LAW 328 (2018).
13
Supra note, 10, Order IX.
14
Sachin Bhatnagar, Ex-parte decrees and remedies available, LEGALSERVICESINDIA, (25 Feb, 2021),
http://www.legalserviceindia.com/legal/article-2292-ex-parte-decree-and-remedies-available.html
15
Supra note, 10, Order IX rule 2, 3, 4, 8, 9 9(A), 6, 13, 13(A), ss. 12, 114, 96, 115.
16
Supra note, 10.
 1.4: RESEARCH OBJECTIVES:

1. To understand the consequences of non-appearance of one or both of the parties of the civil
suit under the Code of Civil Procedure.

2. To analyse the remedies available to the aggrieved party/parties under this code.

3. To learn the grounds on which such remedies can be availed by the aggrieved parties.

4. To analyse the present judicial perspective on the above-mentioned concepts. 

5. To analyse if the above provisions of the Code of Civil Procedure and judicial
pronouncements serving the purpose and intent behind the legislature and providing justice

1.5: METHODOLOGY:

The author has used a doctrinal form of methodology for this paper which is a qualitative
form of research that emphasizes primarily already existing information in the form of case
laws, statutes, research papers etc. For the Code of Civil Procedure, 1908, provisions dealing
with appearance and non-appearance of parties before the court, summons, consequences of
non-appearance, remedies available to the aggrieved party, the grounds on which such
remedies can be availed, the Author has referred to the bare act (primary source) and Code of
Civil Procedure commentaries (secondary sources) along with the above-mentioned journal
articles (secondary sources). For recent judicial pronouncements (primary sources) on these
issues, SCC Online, Manu Patra, Hein Online and commentaries were used. The 20th edition
of the bluebook was used for the citations in this paper. The doctrinal method has been
chosen by the author as this is an analysis of already existent laws. Further, to analyse the
thus collected data and provide conclusions analytical methodology was adopted.
 1.6: LITERATURE REVIEW:

1. Civil Justice in India

Authors: Neha Dixit.

This paper talks about the historical background of the judicial system in India highlighting
the periods of ancient, Muslim, Mughals, British Zamindari system, Mofussil periods, Courts
and judges today, the scope of CPC, Structure, fundamental principles, access to justice,
forms of action, jurisdiction, roles of judges, evidence, summary and appellate proceedings,
class actions, costs and funding, enforcement of proceedings, arbitration and ADR, the role of
academia, comparative analysis. Under appellate proceedings, it talks about the right of the
party to appeal against the ex parte decree passed according to section 96 of this Act. Further,
mentions the review of the ex parte decree under order IXVII, rule 1 and Order IX, rule 13
for setting aside the decree. This paper has a wide scope and was useful in understanding the
history of the judicial system and the remedies available to the party in absence of whose ex
parte decree has been passed by the court.17  

2. Ex Parte Decrees:

Authors: Mohammad Said

This paper primarily discusses the concept of ex parte decrees. The first part, explains the
process of the summons and how the parties are called before the court and with the help of
case laws, explained the judicial perspective of the appearance of parties. Subsequently,
explained the three remedies available to the aggrieved party namely: appealing against the
decree ex parte because it is so provided under section 540, Civil Procedure Code; applying
for a review of the judgment under section 623, Civil Procedure Code, and proceeding under
section 108, Civil Procedure Code in detail along with the case laws decided. This paper was
useful in understanding the judicial perspective of the appearance of parties and remedies
available to the aggrieved parties along with the provisions dealing with the same under
CPC.18

17
AGRAWAL & DIXIT, supra note, 1.
18
Mohammad Said, Ex Parte Decrees, 5 ALLAHABAD L.J. 309 (1908).
3. Appearance and Non-Appearance of the parties.

Authors: Abhavya Rabra.

This paper in detail discusses the connotation of appearance before the court under the Code
of Civil procedure along with landmark cases. The author lays down cases where it was a
fault on the part of the advocate and how courts have looked into and dealt with such matters.
She believes that though the court is bound to dismiss the proceedings if the sufficient
reasons are not established, the same court is also bound to serve justice for all and that court
by considering the procedures laid down strictly cannot cause prejudice to the party who has
put faith not only in the court but also on the advocate. The author concludes the paper by
suggesting to lay down new provisions keeping in mind the right to a speedy trial, to protect
the innocent party from the negligence or default of their advocate. This paper was useful in
understanding the judicial perspective concerning the appearance of parties before the court
of law. 19

  

4. Ex Parte Decree and Remedies Available

Authors: Sachin Bhatnagar.

This Article discusses Rule 9 of the Code of Civil Procedure in detail. It discusses the
consequences of non-appearance of parties, dismissal of suits, ex parte proceedings, setting
aside ex parte decrees, remedies against ex parte decrees, grounds on which the aggrieved
party can plead before the court, ex parte decree as res judicata. This article was useful in
understanding the grounds on which the aggrieved party can claim the remedies.20

BOOKS:

5. The code of civil procedure:

Authors: Mulla.

19
RABRA, supra note, 12.
20
BHATNAGAR, supra note, 14.
 This book explains the object, principles and meaning of the sections and orders of the code
by shedding light on relevant cases decided by the Hon’ble Supreme Court and the High
courts of various states. This provides the updated laws of the Code of Civil Procedure along
with the latest amendments made to the laws. It was useful in understanding the object, scope
and principles of the orders and sections related to this paper in detail along with important
case laws.21

6. The code of civil Procedure

Authors: M.P.Jain

It is an authoritative commentary related to the laws of Civil Procedure in India. In this

edition, the codes and sections are per the latest amendments taken place to these laws and
important judgments. This book s has explained the code in a comprehensive manner which
was useful in understanding the provisions used in this paper.22

2. CONSEQUENCES OF NON-APPEARANCE OF PARTY/PARTIES:

21
DINSHAW FARDUNJI MULLA, THE CODE OF CIVIL PROCEDURE (19th ed. Lexis Nexis 2017).
22
M. P. JAIN, THE CODE OF CIVIL PROCEDURE (5th ed. Lexis Nexis Butterworth India 2019).
The term "appearance," as specified by order IX of the CPC, 190823, does not refer to a
party's mere presence in a court of law. It refers to a pleader's appearance before a court of
law who is capable of answering all material questions related to the judicial proceedings in
question in a properly prescribed and recognized manner and on the date set by the court for
each party unless the court has adjourned the case's proceedings to another day.

Rule 1 of Order IX24 governs the parties' participation on the day of the case's first hearing. It
states that the parties must appear in court on the date fixed by the court, as specified in the
defendant's summons.

According to Rule 2 of Order IX25, the plaintiff's failure to pay any processing fee determined
by the court of law on any stipulated date would result in the case being dismissed. However,
if the defendant attends the court's trial in person or via an attorney and answers all of the
court's material questions, the case will not be dismissed.

2.1: Consequences of all parties to a lawsuit failing to appear:

Order IX of the CPC, 190826 deals with cases in which none of the parties to a case appears in
court on the scheduled date. The lawsuit will be dismissed by the court in this case, according
to Rule 3 of the CPC's Order IX 27, and the plaintiff will be entitled to file a new suit in a court
of law if he can persuade the court that there was a legitimate reason for his non-appearance
in court.

In Damu Diga v. Vakrya Nathu 28, the plaintiff sued the defendants D1 and D2. Only D2
appeared in court on the date fixed by the court for the appearance of the parties to the suit.
The subordinate court made a mistake when denying the appeal. However, the court's
decision was overturned on appeal. The court determined that the current case falls under
Rule 4 of Order IX of the CPC and that the court should consider the fact that not only the
plaintiff was not present during the proceedings. However, since defendant number 1 was
also not present, the court must allow the plaintiff to seek an order overturning the court's
dismissal of the case under Rule 4.

23
Supra note, 10, Order IX, Rule 1.
24
Id.
25
Id., Order IX, Rule 2.
26
Id., Order IX, Rule 3.
27
Id.
28
Damu Diga V. Vakrya Nathu, (1920) 22 BOMLR 328.
2.2: On plaintiffs' non-appearance alone:

Rule 8 of Order IX of the CPC 29 discusses the legal consequences of the plaintiff's non-
appearance and the defendant's appearance in court. The court will dismiss the case if the
defendant does not admit any claim made by the plaintiff and if the defendant admits a claim
or parts of a claim, in which case the court will pass a decree against the defendant based on
that acceptance.

The court held in the case of The Secretary, Department of Horticulture, Chandigarh and Anr.
Vs. Raghu Raj30 that the plaintiff should not suffer as a result of the non-appearance of the
council appointed by him in good faith believing he will make an appearance in the court of
law whenever the plaintiff is called for in the court. It further emphasized that the plaintiff's
counsel's failure to appear for a good cause is unprofessional and unfair to the plaintiff, as
well as unjust and discourteous to the court of law.

2.3: Non-appearance of the defendant:

Rule 6 of Order IX31 applies if the plaintiff is present but the defendant is not on the day of
the peremptory hearing on a prescribed date of hearing. In such cases, the court will
determine the status of summons served on the parties in the case.

The consequences of the defendant's non-appearance and the plaintiff's appearance on

different statuses of the summons served are as follows:

 When the summons is properly served, the court will declare that the suit will be
heard ex parte; 32
 when the summons is not properly served, the court can order the issuance of a second
summons served to the defendant; 33
 when the summons is properly served but not enough time is given to the defendant to
appear in court and answer the summons, the court may postpone and reschedule the
case's hearing to a later date the same shall be communicated to the defendant. 34

29
Supra note, 10, Order IX, Rule 8.
30
Chandigarh and Anr. Vs. Raghu Raj, (2008) 13 SCC 395.
31
Supra note, 10, Order IX, Rule 6.
32
Id., Order IX, Rule 6(1)(a).
33
Id., Order IX, Rule 6(1)(b).
34
Id., Order IX, Rule 6(c).
  When the plaintiff's fault causes a delay in the issuance of summons to the defendant,
the court can order the plaintiff to pay the costs caused due to such delay. 35

2.4: Ex Parte:

If the defendant party in the case fails to appear in court on the due date fixed by the court of
law, the court has the authority under Rule 6(1)(a) of Order IX of the Civil Procedure Code
36
to issue any judgment ex parte. Ex parte decrees are neither unconstitutional nor ineffective,
but they can be overturned at the request of one person, who can seek an annulment order.37

2.5: Analysis: From the above, it can be observed that the appearance and non-appearance of
parties before the court of law, on the stipulated date, has an impact on the decision of the
case. Answers for the first research question about the consequences of appearance and non-
appearance of parties has been provided through the above research. Non-appearance on part
of the plaintiff after filing the suit and appearance by defendant/s might result in the dismissal
of the suit costing the plaintiff. 38 Non-appearance by defendant/, when the plaintiff has
appeared, the decision of the court will depend on the status of summons issued on them. 39
Thus, it can be understood that the decision of the Hon’ble court in the case of non-
appearance of a defendant when the plaintiff has appeared, will completely depend upon the
status of the summon issued to such defendants. Further, if both the parties of the suit fail to
appear, the suit shall be dismissed.40 The volume of cases before the court of law is huge and
the court hence does not have time to deal with such behaviour, disrespect and lack of
vigilance on part of parties. Further, CPC, 1908, is based on the general principle, no
proceeding in a court of law should be conducted to the detriment of any party in their
absence.41 To ensure the same, it lays a duty on the parties to be present at the time of their
proceedings. Thus, these measures facilitate the delivery of justice and make sure the
valuable time of the court is not wasted. These orders/decrees can be challenged by the
aggrieved party under certain grounds. These provisions make sure that the parties who due
to valid reasons could not make an appearance before the court of law are excluded from the
rest and are given a fair second chance.

35
Id., Order IX, Rule 6(2).
36
Supra note,32.
37
Supra note, 18.
38
Supra note, 29.
39
Supra note, 31.
40
Supra note, 26.
41
Supra note, 12.
 3. REMEDIES:

3.1: Plaintiffs who fail to appear in court and as a consequence whose suit has been dismissed
are entitled to the following remedies:

 where no statute of limitations exists, the plaintiff may file a new complaint in a court
of law42;
 Or can get the order of dismissal set aside, if he can prove to the court of law that he
had sufficient cause for non-appearance.

3.2: Under the Code43, a defendant in whose absence an ex parte court order has been passed
has the following options:

 An application under Order IX, Rule 13 of the Code44;

 proving that some of the vitiating causes, such as bribery, were used to obtain the
decree; annulment of the decree under Section 12 of the Code45;
 Filing of a judicial review petition under Section 114 of the Code46;
 requesting a rehearing by applying if principles of natural justice were violated47;
 Can file an appeal under Section 96(2) of the Code48.

3.3: Set Aside an ex parte decree:

The setting aside of a court's Ex parte decree is governed by Rule 13 of Order 9 49 of the CPC.
According to the Rule, the defendant against whom the ex parte order was issued may
petition to have it overturned. If there are more than two defendants, one or more of them
may file for the same.

The court held in Santosh Chopra V. Teja Singh 50that the Rule's concept of "defendant" is
broad enough to include anybody who is affected by the ex parte decree, and therefore, even
a purchaser of the mortgaged property may file an ex parte decree appeal.
42
Supra note, 10, Order IX, Rule 4.
43
Supra note, 10.
44
Id, Order IX, Rule 13.
45
Id., s.12.
46
Id., s.114.
47
Supra note, 12.
48
Id., s.96(2).
49
Supra note, 44.

50
Santosh Chopra V. Teja Singh, AIR 1977 Delhi 110.
The court that issued the ex parte decree may hear an appeal to overturn it. If a superior court
has affirmed the ex parte ruling, a motion to set aside the order may be brought before that
court.

3.4: Appeal:

Sections 96 to 112 of Part VII of the CPC, 1908 51deal with appeals. An appeal is the transfer
of a case from a lower court to a higher court to determine the validity of the lower court's
decisions. The remedy is to keep the original litigation in front of the superior court.

3.5: Revision:

Section 115 gives High Courts the power of revision. 52 Any party who is aggrieved by any
judgment, order, or decree issued by any subordinate court in the country can file a revisional
petition with the High Courts.

The main goal of including the ability to file a revision petition against a subordinate court's
order is to discourage them from acting arbitrarily, capriciously, or improperly by ensuring
that their decisions are reviewed by the High Courts.

3.6: Review:

The legal definition of review is a re-examination of the facts and judgment of a case. Proof
and judgments can only be reviewed by the courts. The criteria for scrutiny are found in
Section 114 of the Civil Procedure Code53. There are no specific conditions or limitations that
must be adhered to.

3.7: Analysis: From the above, it can be noted that since both the defendants and plaintiffs
are aggrieved differently from their non-appearances, the remedies available to them are in
accordance with it. Answers for the second research question pertaining to the remedies
available to the aggrieved party/parties is provided through the above research. Plaintiff (if
the suit has been dismissed under rules 2&3 of order IX) can file a fresh suit, request for
setting aside of the dismissal of the previous suit or can go for an appeal 54. If an ex-parte has
been passed against the defendant who has failed to appear before the court of law, he/she

51
Supra note, 10, ss. 96 to 112
52
Id., s.115.
53
Supra note, 46.
54
Supra note, 42.
can get the decree set-aside55, file an appeal, 56 revision,57 review, 58annulment of the decree
u/s.12,59 and rehearing if they believe that the principles of natural justice were violated. 60
These remedies help provide justice to the aggrieved party, if they can prove that they were
vigilant and under certain unforeseen and plausible circumstances, they could not make an
appearance. As stated earlier, these remedies are not absolute and not every party can avail of
them. There are certain grounds only on which these can be availed making sure that only the
innocents and deserving are given a second chance. The grounds for the same are mentioned
below.

4. GROUNDS ON WHICH SUCH REMEDIES CAN BE AVAILED:

The plaintiff will be entitled to file a new suit 61 in a court of law or apply for setting aside the
order of dismissal62 if he can persuade the court that there was a legitimate reason for his non-
appearance in court.

The following are some of the reasons for setting aside an injunction against an ex parte
ruling by a court:

55
Supra note, 44.
56
Supra note, 48.
57
Supra note, 52.
58
Supra note, 46.
59
Supra note, 45.
60
Supra note, 12.
61
Supra note, 42.
62
Supra note, 42, 29.
In a court of law, the defendant must prove that the warrant was not properly served on him 63.
Rule 6 of Order 964 states that if the plaintiff may prove that the defendant has refused to
appear in court after being duly served with the summons, the court can issue an ex parte
order against the defendant.

The defendant in a scenario where the summons was properly served to him, must show the
court that he was prevented from appearing in court on the scheduled date due to a sufficient
reason: Since the term "sufficient excuse" is not defined in the code, courts must define it on
a case-by-case basis, taking into account the facts and circumstances of the case65

Sufficient Cause: The term “sufficient cause” mentioned in the grounds of remedies, has not
been specified in the legislation, however, the court has in several cases upheld that if the
party has tried their level best to appear before the court. 66
In cases, the courts have held that
if the party arrives late and the suit has been dismissed due to the party’s non-appearance,
he/she has the right to have that suit/application restored. 67

In an appeal, the superior court has the power to rehear the entire case unless expressly
prohibited by statute68. The superior court is not bound by the inferior court's ratio decidendi,
which served as the foundation for the court's decision. According to Section 96 of the CPC,
any decree issued by the court in the exercise of its civil authority can be appealed.69

This section, however, does not apply to the following decrees:

 Decree of consent70
 The court's order, which was issued under Section 9 of the Specific Relief Act,71
 The court's final decree, which was not appealed from the preliminary decree.72

4.2: Analysis: Answers for the third research question pertaining to the grounds under which
the remedies can be availed by the aggrieved party/parties are answered through the above

63
Supra note, 44.
64
Supra note, 31.
65
Supra note, 44.
66
P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar, (1940) 1 MLJ 228. UCO Bank v. Iyengar
Consultancy, (1994) SCC, Supl. (2) 399.
67
Chhotalal v. Ambala Hargovan, (1925) 27 BOMLR 685.
68
Supra note, 10, s.96(1).
69
Id.
70
Id., s. 96(3).
71
Supra note, 12.
72
Id., s. 97.
research. From the above, it may be understood that for setting aside a decree of ex parte or
filing of a fresh suit or setting aside the dismissal of the case, the concerned party has to
prove to the court of law that they had sufficient cause due to which they could not make an
appearance before the court on the stipulated date 73. This makes sure that the valuable time of
the court is not wasted, and only the truly aggrieved party who without any negative intention
and under a given inevitable circumstance could not make an appearance and was not
because of his lack of vigilance, or take it for granted attitude etc are given the second
chance. Further, for setting aside the ex parte decree, another ground is provided to the
defendant, i.e., if the summons was not duly served to him. Additionally, the requisites for
appeal, revisions and review are the same as for any other case under this code.74

5. RECENT JUDICIAL JUDGEMENTS:

5.1: Judgements:

1. N. Mohan V. R. Madhu. 75

Court: Supreme Court of India.

Judgement Date: 21 Nov 2019.

BRIEF FACTS: O 10-01-2015, the appellant approached the respondent-plaintiff for

financial assistance of sum of Rs. 45,00,000. According to the respondent, he has lent
the appellant the sum and both of them mutually agreed for the appellant to repay the
amount within two months along with 18% annual interest. Further, he stated that
there was no documentation for the same. On not receiving the dues within the
stipulated time, the respondent presented the two post-dated cheques of Rs. 20,00,000
and Rs.25,00,000 given by the appellant. The banker notified the respondent that the
73
Supra notes, 42, 29, 44.
74
Supra notes, 46, 48, 52.
75
N. Mohan V. R. Madhu, (2019) SCC OnLine SC 1497.
transaction failed because “payments stopped by drawer”. The respondent-plaintiff
filed a civil suit being OS No.76 of 2015 before the Additional District Judge,
Tiruchirappalli. The said suit was decreed ex-parte on 09.10.2015. The appellant-
defendant filed a suit for setting aside this ex-parte order after 276 days from the date
of judgement and condoned the delay under section 5 of Limitation Act stating that
the summons for the ex parte decree was served on his old address at Trichy which
upon return on being unserved, the ex parte was passed. He claimed that he has been
living in Chennai since 2014. He mentioned that he got to know about this decree
when he was attending the proceedings of some other case at Trichy. This petition for
setting aside the decree of ex-parte was dismissed by the Additional District Judge.
The appellant filed a revision before the High Court which was too dismissed. Then,
he approached the SC through SLP, which was also dismissed. After availing the
option of setting aside ex parte decree with no success, the appellant availed his
option of appeal. However, as it can be seen, the delay now was 546 days. Stating the
same reasons as mentioned in the above petition, along with the time spent in the
above cases the appellant approached the first appellate i.e., High Court. HC
dismissed this suit pointing out that the appellant has chosen the option of appeal
belatedly.

Judgement: The Hon’ble court held that since an appeal under Section 96(2) CPC is a
constitutional right, the defendant cannot be denied the right solely because an
application filed under Order IX Rule 13 CPC was previously dismissed. The facts
and circumstances in each case must be weighed to determine if the defendant has
used dilatory methods or whether there is a lack of bona fide in seeking the remedy of
appeal under Section 96(2) of the Code. The court may refuse to excuse the
defendant's delay in filing the first appeal under Section 96(2) CPC if the court
believes the defendant has used dilatory tactics or there is a lack of bona fide.
However, if otherwise is found, refusal to look into the merits of the appeal would be
a denial of the statutory right of that individual. If the defendant would have first filed
an appeal, which would have been dismissed, then he cannot apply setting aside the
ex parte decree as after the appeal, the original decree merges with the appellate
decree. Further, the bench emphasized that according to this court’s judgement in
2018, the appellant has deposited 25,00,000, showing his bonafide intention and if he
 deposits the rest 20,00,000, his delay will be condoned and he will be given a fair
chance to prove his merits.

2. Bhivchandra Shnakar V. Balu Gangaram & Ors.76

Court: Supreme Court of India.
Date of Judgement: 7 May 2019.
Brief Facts: Respondent-plaintiff filed a suit for partition. In the said suit, son of def
no.2 Tanaji has received summons issued on def no. 2 by the court. Appellant-
defendant claimed that tanaji did not inform them regarding the same and they were
no present when the summons was issued as they were in the neighbouring village in
search of a job. An ex parte preliminary decree was passed on 04.07.2008. Defs
no.12, and 14 applied setting aside the ex parte decree, which after consideration was
dismissed by the trial court. The trial court noted that there were many changes in the
versions of the stories put forth, further, that Tanaji was an adult when the summons
was served, thus it will be constituted as proper serving. Aggrieved, they pursued an
appeal on 03.09.2010, which was duly withdrawn on 11.06.2013. On the immediate
next day, they filed a regular appeal challenging the initial ex parte decision of the
court.
Judgement: The district court set aside the order of the trial court, and condoned the
delaying justifying that they have spent their time on wrong proceedings. When
respondents aggrieved by the district court’s judgement, filed a writ petition before
the HC, which has observed that remedies provided for ex parte are appeal and
application to set aside the ex parte decree under Rule 13 of Order IX, simultaneously
and are not consecutive remedies. Additionally, overruled the observation of district
court that application under Order IX, Rule 13, is wrong proceedings. Now, the main
question before the Hon’ble Supreme Court was if the time delay caused due to the
proceedings under Order IX, Rule 13 could be interpreted as “sufficient cause” under
s.5 of Limitation Act or not? The Hon’ble Supreme Court held that the time spent on
proceedings under Order IX, Rule 13 do amount to “sufficient cause” and that the
word simultaneously should not be viewed with such a narrow sense which might
cause injustice. However, this will depend from case to case and while passing a
judgement, the court must make sure that the party has not adopted dilatory tactics or
there should be no lack of bona fide in pursuing the two remedies consecutively. If the

76
Bhivchandra Shnakar V. Balu Gangaram & Ors., (2019) 6 SCC 387.
 situation is otherwise, the court does not have to condone the delay. Accordingly,
analysing the facts in question, the Hon’ble Supreme Court, condoned the delay and
set aside the decision of the High Court.
3. Subodh Kumar Vs. Shamim Ahmed77
Court: Supreme Court of India.
Judgement Date: 3rd March 2021.
Brief Facts: The Landlord admitted Respondent No.1 as a Tenant at Rs.150/ per
month (hereinafter Appellant). The conflict concerns a shop. The Appellant acquired
this property through a sale deed. The Appellant filed a lawsuit, alleging ownership,
tenancy, unpaid rent, and mesne benefit. Respondent No. 1 was given several chances
to file a written response, but he did not do so. The Court issued an order to proceed
ex parte, and the appeal was eventually granted ex parte.
Respondent No. 1 then applied to deposit the rent under Section 30(2) of the U.P.
Urban Buildings (Regulation of Letting, Rent, and Eviction) Act, 1972 (UP 1972
Act). This application was granted, and Respondent No. 1 paid a rent of Rs.16,800/-
for the duration from March 1, 1988, to June 30, 1997.
Following that, Respondent No. 1 applied Order IX Rule 13 CPC, as well as an
application under Section 5 of the Limitation Act, for setting aside the ex parte
decree. However, Respondent No. 1 did not make the requisite deposit under Section
17 of the Provincial Small Cause Courts Act, 1887. (the 1887 Act). The Trial Court
denied Respondent No.1's application under Order IX Rule 13 and Section 5 of the
Limitation Act.
After that, Respondent No. 1 lodged a Revision Petition with the District Judge, but it
was denied. Respondent No. 1 filed a Writ Petition in the High Court of Uttarakhand
after being aggrieved by the Trial Court's and District Judge's orders (High Court).

The High Court reversed both Orders, approving the Writ Petition and remanding the
case to the Trial Court for reconsideration of the Respondent's application under
Order IX Rule 13 CPC and Section 5 of the Limitation Act, as required by statute.
The Appellant then filed a Special Leave Petition in the Hon'ble Supreme Court of
India, which was dismissed, and he was granted the opportunity to file a Review
Application in the High Court, which was also refused.

77
Subodh Kumar vs. Shamim Ahmed, MANU/SC/0140/(2021).
 The Appellant, who was aggrieved by the High Court's judgments dated 13.12.2018
and 24.05.2019, filed an appeal with the Supreme Court.
Judgement: The Hon’ble Supreme Court has observed that the prerequisite of Section
17 of the 1887 Act was not complied with before filing of the application under Order
IX, Rule 13. Further, the tenant has failed to deposit the entire amount of rent due as
of 25.08.1998, u/s. 30(2) of Act No.13 of 1972. Additionally, the court emphasized
that the rent deposited u/s.30(2) cannot be treated as the amount supposed to be paid
u/s.17 of the Act, 1887.
The court, after analysing the pre-requisites opined that even if for a moment, we
consider that the pre-requisites u/s.17 are fulfilled and u/s.30(2) of the acts mentioned
above, an application under Order IX, Rule 13 can be allowed only when “sufficient
cause” has been established. Looking into the facts of the case, and supporting the
judgement of the trial court, it has stated that there is no sufficient cause established
and the tenant has failed to file the written statement even after many requests and
postponements and upheld the trial court’s opinion that this attempt of tenant is mala
fide and is trying to enjoy the property further by filing these cases. Accordingly,
found that High Court has committed an error in interfering with the trial court
judgement and stated the executive court to execute the decree, but the appellant in
possession, and payment of the entire decretal amount within three months from such
date on which the copy of the judgement is produced before that court.
The above mentioned are the recent judicial judgements answering the fourth research
question.

5.2: Analysis: These recent judicial judgements help us understand and analyse the stand of
the judiciary and to what extent the purpose of the legislation is being met. It can be noted
from the analyses of the first two judgements i.e., N. Mohan V. R. Madhu, Bhivchandra
Shankar V. Balu Gangaram & Ors. 78, that the Hon’ble Supreme Court rather than interpreting
the legislation narrowly, has chosen to interpret it widely by keeping the intent of the
legislature in mind to provide justice to the aggrieved. In the judgements, it has chosen not to
take a strict interpretation of the word “simultaneously” mentioned in the remedies of ex
parte decree. It has made a reasonable exemption. However, it has noted that if the parties
have tried to use the remedies consecutively rather than simultaneously and used dilatory

78
Supra notes, 75 & 76.
methods or there is a lack of bona fide in seeking the remedy of appeal under Section 96(2) 79
of the Code, the court may choose not to allow the appeal and condone the delay. If the
parties had bona fide intention and have not involved in any dilatory methods, and have
availed remedies consecutively, depending on the facts of the case, the court has held that
appeal can be allowed and delay u/s. 5 of Limitation Act 80 can be condoned. This way, the
Hon’ble Supreme Court has made sure that statutory remedies available to the party are not
gone in vain and that the aggrieved party is provided with a fair chance of challenging and
being heard before the court of law if they are with the rightful intentions and have rightful
and sufficient causes for such delay thus upholding the rights of the aggrieved party, and
intent of the legislation. 81

Further, in the case of Subodh Kumar Vs. Shamim Ahmed,82 The Hon’ble Supreme Court has
re-emphasized the pre-requisites for applying Order IX, Rule 1383 for setting aside an ex parte
order. In this case, as observed by the trial court and upheld by the Apex court, the tenant
with a mala fide intention to enjoy the property for longer has filed the case for setting aside
the ex parte decree. The Hon’ble Supreme Court, by opining that only applications with
“sufficient cause” can be allowed under this rule, has upheld the rights of the parties in the
suit, the intention of the legislature to give an opportunity only to the vigilant, truly unheard,
having sufficient cause and pure intention parties excluding the other ones.84

Allowing applications under Order IX, Rule 13, without “sufficient cause”, will destroy the
intent of the legislation. Additionally, it will hinder the rights of the other party and allow
every individual who on purpose to delay the judgement, with any other negative intent, who
was not vigilant, or who did not respect the court’s summons on time to approach the court
thus, hindering and delaying the delivery of justice.

Further, by not stating specific circumstances only under which cases can be allowed under
Order IX, Rule 13 and delay for appeal can be allowed, the legislations have given room for
possible situations which may fulfil their intent. 85 Since the facts of every case and
circumstances differ, it will not be ideal to list down the exact circumstances and situations

79
Supra note, 48.
80
The Limitation Act, 1963, s.5, No. 36 of 1963, Acts of Parliament, (1963).
81
Supra note, 78.
82
Supra note, 77.
83
Supra note, 44.
84
Supra note, 77.
85
Supra note, 44.
under which an application for the above mentioned can be filed and rightly has been left to
courts to decide from case to case.

From the above provisions, judgements and analysis, it can be understood that the fifth
research question pertaining to whether Judicial pronouncements and provisions are
justifying the purpose and intent behind the legislation even today and are succeeding in
delivering justice is answered positive.

6. CONCLUSION:

The appearance and non-appearance of parties in a suit make a huge impact on the case. This
paper will help in understanding and spreading awareness regarding the consequences of non-
appearance of party/parties of a suit, remedies available to the aggrieved party and the
grounds on which these remedies can be availed along with the recent judicial judgements on
the same. Order IX deals with the same86. Non-appearance on part of the plaintiff after filing
the suit and appearance by defendant/s might result in the dismissal of the suit costing the
plaintiff87. Non-appearance by defendant/, when the plaintiff has appeared, the decision of the
court will depend on the status of summons issued on them varying from passing an ex-parte
decree88 if the serving of summons was successful to the issuance of extra time if the
summons were issued but not sufficient time was given 89. The court may also order the
second issuance of summons if the first one was not duly served. 90 Plaintiff (if the suit has
been dismissed under rules 2&3 of order IX) can file a fresh suit, request for setting aside of

86
Supra note, 10, Order IX.
87
Supra note, 29.
88
Supra note, 31.
89
Supra notes, 32 & 34.
90
Supra note, 33.
the dismissal of the previous suit or can go for an appeal 91. If an ex-parte has been passed
against the defendant who has failed to appear before the court of law, he/she can get the
decree set-aside92, file an appeal93, revision94, review95, annulment of the decree u/s.12,96 and
rehearing if they believe that the principles of natural justice were violated 97. These remedies
help provide justice to the aggrieved party, if they can prove that they were vigilant and under
certain unforeseen and plausible circumstances, they could not make an appearance. From the
above, it may be understood that for setting aside a decree of ex parte or filing of a fresh suit
or setting aside the dismissal of the case, the concerned party has to prove to the court of law
that they had sufficient cause due to which they could not make an appearance before the
court on the stipulated date. Through research, recent judicial judgements held by the
Hon’ble Supreme court related to Rule 13, Order IX98, were obtained and are analysed above
accordingly. It has been noted that, in a few cases, it is not until the last appeal, the aggrieved
party received justice. Excluding that, it can be rightly inferred that the provisions of CPC,
1908, and judicial judgements are justifying the purpose and intent behind the legislation
even today and are succeeding in delivering justice. Further research can be done on judicial
perspective related to the certain grounds on which ex parte decrees are being set aside by
providing analysis and recommendation.

91
Supra notes, 42 & 29.
92
Supra note, 44.
93
Supra note, 48.
94
Supra note, 52.
95
Supra note, 46.
96
Supra note, 45.
97
Supra note, 12.
98
Supra notes, 75, 76 & 77.
 REFERENCES:

LEGISLATIONS:

 Code of Civil Procedure, No. 5 of 1908, Acts of Parliament, (1908).

BOOKS:

 DINSHAW FARDUNJI MULLA, THE CODE OF CIVIL PROCEDURE (19th ed. Lexis Nexis
2017).
 M. P. JAIN, THE CODE OF CIVIL PROCEDURE (5th ed. Lexis Nexis Butterworth India
2019).

SECONDARY SOURCES:
 Krishna Agrawal & Neha Dixit, Civil Justice in India, 3 BRICS L.J. 71 (2016).
 Abhavya Rabra, Appearance and non-appearance of the parties, 4 JOURNAL OF

CONTEMPORARY ISSUES OF LAW 328 (2018).

 Sachin Bhatnagar, Ex-parte decrees and remedies available, LEGALSERVICESINDIA,

(25 Feb, 2021), http://www.legalserviceindia.com/legal/article-2292-ex-parte-decree-

and-remedies-available.html
 Mohammad Said, Ex Parte Decrees, 5 ALLAHABAD L.J. 309 (1908).
 Subodh Asthana, Appearance and Non-appearance of Parties in the Civil Suit,
IPLEADERS, (4 July 2019),
https://blog.ipleaders.in/appearance-non-appearance/#:~:text=The%20appearance
%20of%20parties%20to%20the%20suit&text=If%20the%20plaintiff%20or%20a,not
%20appear%2C%20dismiss%20the%20suit.
 Mariya Paliwala, Appearance and Non-appearance of Parties, IPLEADERS, (12 Dec,
2019), https://blog.ipleaders.in/appearance-and-non-appearance-of-parties/
 Ashish Agarwal, Appearances and Non-appearances of Parties before a Court,
LEGALBITES, (23 September, 2020), https://www.legalbites.in/appearance-and-non-
appearance-of-parties
 Harshit Khandelwal, Appearance and Non-appearance of Parties under CPC,
LEXPEEPS, (16 April, 2021), https://lexpeeps.in/appearance-and-non-appearance-of-
parties-under-cpc/