APPEARANCE AND NON-APPEARANCE OF PARTIES (Order 9)

INTRODUCTION

Appearance and non-appearance of the parties decide in whose interest the case will be determined. In a civil suit, the mere non-appearance of a party on the date given before the court on the date on which the case will be heard will have an adverse effect on the party. Therefore it is the duty of the parties to be present in the court of law. In situations of non-appearance of any of the parties to the suit, the judgment will be in favor of the party appearing in front of court. However, the non-appearing party can safeguard its interest by reviving the suit.

APPEARANCE OF DEFENDANT

Rule 8 of the Order IX of the Civil Procedure Code, 1908 deals with the appearance of the defendant and the appearance of the plaintiff in the court of law. According to this rule if the plaintiff remains absent from the proceedings and the defendant makes an appearance on the given due date. In such a situation suit is dismissed in default. If the case is dismissed by the court, then the plaintiff can revive his case by:

1. The plaintiff can file a fresh suit in the court of law if the same has not been barred by any law in force.

2. The plaintiff can file a petition under Rule 4 of Order IX of Civil Procedure Code, 1908. According to Rule 4 of the Order where a case has been dismissed in pursuance of Rule 2 or Rule 3 of the Order IX then the plaintiff can apply for an order for the dismissal of the case by the court.

In the case of The Secretary, Department of Horticulture, Chandigarh, and Anr. v. Raghu Raj[1], the court held that the plaintiff should not suffer because of the non-appearance of the counsel appointed by him with good faith that he will make an appearance without any reasonable cause in the court of law whenever the plaintiff is called for in the court. The Court held that notwithstanding any irregularity in service of summons deliberate inaction of the applicant despite knowledge of the proceedings cannot be justified in his claim for setting aside the ex parte decree.[2]

DOES THE SAME PROVISION APPLY 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. In the case of P.M.M. Pillayathiri Amma v. K. Lakshi Amma[3],the plaintiff stated that he was not aware of the death of the defendant on the date when the ex parte decree was passed, the decree is a nullity and therefore cannot be executed.

APPLICATION TO SET ASIDE THE DISMISSAL WHEN SUMMON IS NOT SERVED

Under Order IX, Rule 6 of the Code, the procedure adopted when only plaintiff appears and defendant is absent on the day of hearing. Then the court makes a decision about the consequence for such non-appearance with respect to the status of summon. The following are the consequences of non-appearance of the defendant and the appearance of the plaintiff with respect to summons being served:

1. When summons duly served, the court gave an order that the suit shall be heard ex-parte.

2. When summons not duly served—if it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant;
 3.When summons served but not in due time—if 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.[4]

4. When in a case the delay in issuance to the defendant is caused due to the fault of the plaintiff, the court may pass order to the plaintiff to pay the costs occasioned by the delay in the proceedings.[5]

EX PARTE APPEARANCE

Rule 6(1) (a) of Order IX of the Civil Procedure Code empowers the court to pass any judgment ex parte in case of absence of the defendant.[6] When the plaintiff appears and the defendant does not appear when the suit is called out for hearing. Ex parte decree is neither null and void nor inoperative but is merely voidable and unless and until it is annulled on legal and valid grounds, it is proper, lawful, operative and enforceable like a bi parte decree and it has all the force of valid decree. In the case of Hoechst Company v. V.S. Chemical Company[7], Supreme Court explained that an ex parte decree is such a decree in which the defendant did not appear before court and the case is heard in the absence of the defendant from the very beginning.

REMEDIES AGAINST AN EX-PARTE DECREE

The court provides the following remedies to the party against whom an ex parte decree by the court has been passed:

  1. Application under order IX, Rule 13, defendant can apply before the court to  pass the decree to set it aside. If the defendant satisfies the court that the summons was not duly served or was prevented from attending the proceedings. For example, bona fide mistakes as to the date of hearing or any other sufficient cause for the non-appearance of the defendant. Application for setting aside may be made within 30 days from the date of decree as per section 123 of the limitation act.[8]
  2. Review petition can be filed under Section 114 of the CPC.
  3. Application for rehearing of the case on the grounds of violation of principles of natural justice can be filed.
  4. Appeal under Section 96 of the CPC can be filed.

SETTING ASIDE AN EX-PARTE DECREE

Rule 13 of order IX of the Civil Procedure Code contains provisions related to Setting aside the Ex parte decree passed by the court. In this rule the defendant against whom the ex parte decree has been issued can apply for setting it aside and satisfy the court that summons was not duly served or that he was prevented from appearing in the proceedings of the court.[9] The court shall make an order setting aside the decree, if it is satisfied with the proceedings. The proviso to rule 13 further lays down that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.[10] This rule will not have any effect if the defendant has refused the summons.The burden of proof is on the applicant who prays for setting aside the ex parte decree to establish that summons in the suit was not duly served on him or that there was sufficient cause for non-appearance.[11]

SUFFICIENT CAUSE

The expression `sufficient cause’ has to be liberally construed to ensure an equilibrium between the rights secured by the decree holder against the injustice of taking away the right of judgment debtor of adjudication on the basis of cause which was reasonably out of his will.[12] However, the cause has to be bona fide. It is fully upon the discretion of the court to revive the case when sufficient cause is shown for the non-appearance. Usually, after the period of limitation eclipses the other party is favored, only when the party is able to show sufficient cause, then the case is allowed to reopen.[13]

In case of Sohan Lal v. Kedar Nath[14], non-appearance of the party due to curfew in the city is a sufficient cause for setting aside the ex parte decree. In absence of sufficient cause, the cases to be set aside is upon the discretion of the court in P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar.[15]

CONCLUSION

The appearance and non-appearance of the parties decides the fate of the case. Therefore if the defendant does not appear before the court, the judgment will be in favor of the other party. If both the parties do not appear then the court can dismiss the case. But if the plaintiff appears before the court and the defendant could not appear, then the court may pass an ex parte decree against the defendant. If sufficient cause exists behind the non-appearance certain remedies are available to the party. If the court is satisfied then it may set aside the order of the ex-parte. One of the most principles of natural justice and civil procedure is the right to be heard.


[1] The Secretary, Department of Horticulture, Chandigarh and Anr. v. Raghu Raj ,(2008) 13 S.C.C. 395.

[2] “Passing of the Ex Parte Decree.” All Answers Ltd. lawteacher.net, November 2018. <https://www.lawteacher.net/free-law-essays/administrative-law/passing-of-the-ex-parte-decree-administrative-law-essay.php?vref=1>.

[3]P.M.M. Pillayathiri Amma v. K. Lakshi Amma, A.I.R. 1967 Ker. 135.

[4]Lawhelpbd, ‘Consequences of Non appearance of parties (Order 9)’,June 15, 2016. ,https://lawhelpbd.com/cpc/consequences-of-non-appearance-of-parties-order-9/.

[5] Pankhuri Anand, ‘Appearance and Non-appearance of Parties in the Civil Suit’, July 4, 2019 https://blog.ipleaders.in/appearance-and-non-appearance-of-parties/.

[6]‘Cpc lectures’, https://www.pahujalawacademy.com/cpc-lectures/.

[7]Hoechst Company vs V S Chemical Company, 1983 A.I.R. 1019.

[8] ‘Civil Procedure Code 1908, Notes’ ,Scribd, https://www.scribd.com/document/329314604/civil-procedure-code-1908-notes.

[9] Supra note 2.

[10] Shailaja B, ‘The procedure for setting aside an ex parte decree in India’ https://www.shareyouressays.com/knowledge/the-procedure-for-setting-aside-an-ex-parte-decree-in-india/111480.

[11] Supra note 2.

[12]‘Sufficient-cause’ ,Scribd, https://www.scribd.com/document/262469686/Sufficient-Cause.

[13] Id.

[14] Sohan Lal v. Kedar Nath ,1969 A.I.R. 1316.

[15] P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar ,(1931) 33 BOMLR 867.


Authored By: Manjima, 8th Semester, SDM Law College, Mangalore

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