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APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-

APPEARANCE

ORDER IX

PARTIES TO APPEAR ON DAY FIXED IN SUMMONS:


On the day fixed in the summons for the defendant to appear and answer, the
parties shall be in attendance at the court-house in person or by their respective
pleaders. The suit shall then be heard unless adjourned to a future day fixed by the
court. [Order IX, Rule 1].

DISMISSAL OF SUIT WHERE SUMMONS NOT SERVED IN


CONSEQUENCE OF PLAINTIFF’S FAILURE TO PAY COSTS:
Where on the day so fixed it is found that the summons has not been served upon
the defendant in consequence of the failure of the plaintiff to pay the court-fee or
postal charges, if any, chargeable for such service, or failure to present copies of
the plaint as required by Rule 9 of Order VII, the Court may make an order that the
suit be dismissed:

Provided that no such order shall be made, if notwithstanding such failure, the
defendant attends in person or by agent when he is allowed to appear by agent on
the day fixed for him to appear and answer.] (Order IX Rule 2). What Order IX,
Rule 1, contemplates is that the date for appearance given in the summons served
on the defendant is the date fixed for the hearing of the case, but the hearing may
be adjourned from time to time.

Under Order IX, Rule 2, C.P.C. a suit can be dismissed only if the summons has
not been served upon the defendant in consequence of the failure of the plaintiff to
pay the court-fee or postal charges, if any, chargeable for such service. Where the
plaintiff had deposited process fee, and the only thing that was required of him was
to file a summons to the Collector, his failure to file the summons in reasonable
time does not entail dismissal of his suit under Order IX, Rule 2 [ILR (1952) 2 Raj
582].

If a party is represented before a court by more than one counsel and if the name of
any of the counsel is shown in the cause list and if he does not appear before the
court, the case is liable to be dismissed in default, and it cannot be restored on the
ground that the name of one of the counsel is not printed in the cause list.

REMEDY WHERE SUIT IS DISMISSED UNDER RULES 2 AND 3


ABOVE:
Where a suit is dismissed under Rules 2 and 3 above, the plaintiff may (subject to
the law of limitation): (a) bring a fresh suit or (b) apply for an order to set the
dismissal aside. The court shall set aside the dismissal on being satisfied that there
was sufficient cause for the plaintiff not paying the court-fee and postal charges or
presenting requisite copies of the plaint or concise statements within the time fixed
for the issue of the summons or for his non-appearance. [Order IX, Rule 4].

DISMISSAL OF SUIT WHERE PLAINTIFF FAILS TO APPLY FOR


FRESH SUMMONS:
Where, after a summons has been issued to the defendant and returned unserved,
the plaintiff fails for a period of [seven days] from the date of the return, to apply
for the issue of a fresh summons, the court shall dismiss the suit as against such
defendant, unless the plaintiff has satisfied the court that

(a) He has failed after using his best endeavours to discover the residence of the
defendant who has not been served; or

(b) Such defendant is avoiding service of process; or

(c) There is any other sufficient cause for extending the time. Where a suit is
dismissed under the above circumstances, the plaintiff may (subject of the law of
limitation) bring a fresh suit. [Order IX, Rule 5].

PROCEDURE WHERE ONLY PLAINTIFF APPEARS:


Where the plaintiff appears and the defendant does not appear on the date of
hearing of the suit, then—(a) if it is proved that the summons was duly served, the
court may make an order that the suit be heard ex parte; (b) if it is not proved that
the summons was duly served, the court shall direct a second summons to be
issued and served on the defendant; and (c) where the summons though served on
the defendant was not in sufficient time to enable him to appear and answer on the
date fixed in the summons, the court shall adjourn the hearing of the suit. [Order
IX, Rule 6],
PROCEDURE WHERE ONLY DEFENDANT APPEARS:
Where the defendant appears and the plaintiff does not appear when the suit is
called on for hearing, the court shall dismiss the suit, unless the defendant admits
the claim, or part thereof, in which case the court shall pass a decree accordingly.
[Order IX, Rule 8].

Where the dismissal of the earlier suit is under Order IX, Rule 8, as the plaintiff
cannot bring a suit again on the ‘same cause of action’, i.e., the actual cause of
action as made out in the earlier suit, then if he brings a suit for the remaining
claim which may be a different cause of action under Order IX, Rule 9, and not
barred by its terms, but is the ‘same cause of action’ for the purposes of Order II,
Rule 2, then he is clearly ‘afterwards’ suing in respect of the additional claim, and
Order I, Rule 2, operates a bar.
On such dismissal of the suit, the plaintiff is precluded from bringing a fresh suit in
respect of the same cause of action; but he may apply for an order to set the
dismissal aside. The court shall, after issuing notice of the application to the other
side and on being satisfied that there was sufficient cause for non-appearance, set
aside the dismissal on payment of costs or on other terms as it thinks fit. [Order IX,
Rule 9].

An application for restoration of the suit dismissed for default must be made within
30 days of the order or knowledge of the decree, under Article 12 of the Limitation
Act, 1963. The court has no jurisdiction to enlarge the period.

EFFECT OF DISMISSAL:
Subject to an application for restoration the dismissal operates as a final
adjudication. But a party is not precluded by reason of dismissal from raising his
claim by way of defence in another suit.

APPEAL AGAINST REJECTION OF AN APPLICATION FOR


RESTORATION OF THE SUIT:
Order XLIII, Rule 1 provides that an appeal lies from an order under Rule 9 of
Order IX rejecting an application (in a case open to appeal) for an order to set aside
the dismissal of a suit.

EX PARTE DECREE:
An ex parte decree is a decree passed in the absence of the defendant. Where the
plaintiff appears and the defendant does not appear when the suit is called on for
hearing then, if it is proved that the summons was duly served, the court may
proceed ex parte, i.e., proceed to take and determine on evidence, and pass a decree
in favour of the plaintiff if a prima facie case/ is made out by him [Order IX, Rule
6(l) (a)]. An ex parte decree may be passed either at the first hearing or at an
adjourned hearing.

LIMITATION:
As stated earlier, the period of limitation for the filing of an application to set aside
an ex parte decree is 30 days from the date of the passing of the decree, or the date
on which the applicant had knowledge of the decree when the summons was not
duly served (Article 123 Limitation Act, 1963). But in the latter case the onus is on
the defendant to prove that it was presented within 30 days of his having
knowledge of the decree.

MEANING OF “SUFFICIENT CAUSE”:


Order IX of the Code contains provision for restoration of the suit dismissed for
default as well as for the setting aside of the decree passed ex parte against the
defendant vide Rules 9 and 13 thereof, if he (plaintiff or defendant, as the case may
be) satisfies the court that there was sufficient cause for his non-appearance when
the suit was called for hearing.

What is a “sufficient cause” for non-appearance has not been defined in or by any
jacket formula but has been left to be tested, considered and decided by the court in
the context of facts of a particular case keeping in view the basic principles of
justice, equity and good conscience and the object of all rules of procedure.

All the rules of procedure are made and do exist to substantiate the cause and
course of justice and not to hamper or obstruct its flow, so sufficient cause has to
be judged and determined in each case with justice oriented concept in the light of
the facts of each case.