Order 9

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.
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 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.
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. In the case of Maya Devi
v. Lalta Prasad, it has been held by the Supreme Court that -It is the duty of
the court to ensure that statements in the plaint stand proven and the prayers
asked before the court are worthy of being granted. This provision of passing ex
parte order cannot be passed when there are more than one defendants in the
case and any of them appears.
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:
1. The defendant does not admit the claim of the plaintiff, either wholly or
any part of it.
2. The defendant admits the plaintiff claim.
If the defendant does not admit the claim of the plaintiff, then the court shall
order for dismissal of the suit. But, when the defendant admits completely or
any part of the claim made by the plaintiff then the court is empowered to pass
a decree against the defendant on the ground of such admission and for rest of
the claim, the suit will be dismissed.
Dismissal of the suit of the plaintiff without hearing him is a serious matter and
it should not be adopted unless the court gets satisfied that in the interest of
justice such dismissal is required, as cited by Beaumont, C.J. in the case
of Shamdasani v. Central Bank of India.
Do the same provision applies to the non-

appearance of the plaintiff due to death?
When the plaintiff does not appear because of death, the court has no power to
dismiss the suit. Even if such order is passed it will amount to a nullity as held
in the case of P.M.M. Pillayathiri Amma v. K. Lakshi Amma.
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.
Sufficient cause
For considering the sufficient cause of non-appearance of the plaintiff the main
point to be considered is whether the plaintiff really tried to appear on the day
which was fixed for hearing or not. When sufficient cause is shown by the
plaintiff for his non-appearance, then it is mandatory for the court to reopen the
suit. In absence of sufficient cause, it is upon the discretion of the court to set
aside the dismissal or not as held in the case of P.K.P.R.M. Raman Chettyar
v. K.A.P. Arunachalam Chettyar. Sufficient cause depends upon the facts and
circumstances of each and every case.
In the case of Chhotalal v. Ambala Hargovan, the Bombay High Court
observed that if the party arrives late and find its suit dismissed due to his non-
appearance then he is entitled to have his suit or application restored with the
payment of costs.
When summon is not served

Rule 2 to 5 of Order IX lays down the provision for the situation when the
summon is not served to the defendant. One of the fundamental law of
procedural law is that a party must be given a fair opportunity to represent his
case. And, for this, a notice of the legal proceedings initiated against him is
obligatory. Therefore, service summons to the defendant is mandatory and it is
a conditional precedent.
When there is no service of summons or it does not give him sufficient time for
effective presentation of the case then a decree cannot be passed against him
as held in the case of Begum Para v. Luiza Matilda Fernandes.
Rule 2 of Order IX also holds that when the plaintiff fails to pay costs for
service of summons to the defendant then the suit may be dismissed. But, no
dismissal can be made even in the presence of such failure if the defendant
appears on the day of hearing either in person or through his pleader. However,
the plaintiff is entitled to file a fresh suit when the suit is dismissed under this
rule. and, if the court is satisfied that there is a reasonable reason behind such
failure to pay costs then the court may set aside the order of dismissal.
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
When the summon was not duly served to the defendant is not proved then the
court can direct to issue a fresh summon to the defendant for service. When the
service of the summons is proved before the court but the time prescribed in
the summon is not sufficient for him to answer on the day which has been fixed,
then the hearing can be postponed by the court to a future date and notice will
be given to the defendant.
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.
An ex-parte decree is a valid one and it is not null and void but can be merely
voidable unless it is annulled on a legal and valid ground. An ex-parte can be
enforced like a bi-parte decree and it has all the forces as a valid decree as held
in the case of Panduranga Ramchandra v. Shantibai Ramchandra.
Remedies against an ex-parte decree

When an ex-parte decree has been passed against a defendant, the following
remedies are available to him.
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.
Sufficient Cause
The term sufficient cause has not been defined anywhere but as held in the case
of UCO Bank v. Iyengar Consultancy, it is a question which is determined
upon the facts and circumstances of the cases. The test to be applied for this is
whether or not the party actually and honestly intended to be present at the
hearing and tried his best to do so. There are several instances which have
been considered as sufficient cause such as late arrival of the train, sickness of
the council, the strike of advocates, death of a relative of party etc.
The burden of proof that there was a sufficient cause of non-appearance is upon
the defendant
Conclusion
The appearance and non-appearance of parties have an effect on the case and
whether it will be carried on for the next hearing, dismissed or an ex-parte
decree will be given. When none of the parties appears then the suit can be
dismissed by the court. The suit is carried on for the next hearing only when
both parties appear before the court.
If the plaintiff appears before the court but no defendant appears on the day of
hearing then the court may pass an ex-parte decree against the defendant. The
situations when there is non-appearance on the behalf of the plaintiff then the
suit can be dismissed if the defendant denies the claim of the plaintiff and if he
admits to any claim the court can pass an order against him on the ground of
his admission.
When any suit is dismissed or an ex-parte order is passed 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 the order of
dismissal or an ex-parte order. During all these procedures the court must keep
in mind that nowhere any miscarriage of justice is done during the dismissal or
while passing an ex-parte order.

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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

The appearance of parties to the suit

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

Non-appearance of both parties to the suit

Do the same provision applies to the non-

Application to set aside the dismissal

When summon is not served

Remedies against an ex-parte decree

Setting aside an ex-parte decree

The grounds on which an ex-parte decree can be set aside are:

1. When the summons has not been duly served.

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