Welcome to my

presentation
Name:Salah Uddin
ID:172-26-1094
 Appearance and Non-appearance of Parties in the Civil
Suit
• 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.
The appearance of parties to the suit
• As stated under Rule 1 of Order IX 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.
• If the plaintiff does not appear, dismiss the suit.
• If the defendant does not appear, pass an ex-parte order.
 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.
 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.
 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.
 Ex-parte Decree
• 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.
• Remedies against an ex-parte decree
• 1. He can apply to the court under rule 13 of Order IX for setting aside the ex-parte
decree passed by the court.
• 2. 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.
• 3.He can apply for a review under Order 47 Rule 1.
4.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:
• 1.When the summons has not been duly served.
• 2. Due to any “sufficient cause”, he could not appear on the day of the
hearing.