Appearance and Non-Appearance of Parties

Appearance and non-appearance of the parties in a civil suit is the important factor upon which
the fate of any case depends. A mere non-appearance of a party in front of the court on a
determined day may result in an adverse decision with respect to the non-appearing party. The
general provisions contained in the Civil Procedure Code of 1908 is based on the principle that
no proceedings which are detrimental to the interest of any of the parties to the suit shall be
conducted in the court of law. It is the duty of the parties to the suit to show up before the court
of law on a due date which has been fixed by the court. In case of non-appearance of any of the
parties to the suit, the judgement of the court may turn in favour of the party appearing in front of
the court. However, in situations where a suit is determined irrespective of the fact that any of
the parties to the suit are absent on the due date. Then, the non-appearing party in order to
safeguard its interest can revive the suit by following the provisions of Civil Procedure Code,
1908.

The provisions with respect to the consequences in case of non-appearance of parties and other
related provisions are contained in the Order IX of Civil Procedure Code, 1908. The rules
regarding the consequences of appearance and non-appearance of parties to the suit under the
Order IX of CPC are as follows:

 Rule 2– the consequences of non-deposition of fees by the plaintiff.

 Rule 3 and Rule 4–  the consequences of non-appearance of both the parties to the
suit.
 Rule 8, Rule 9 and Rule 9(A)– consequences of non-appearance of the plaintiff to the
court of law.
 Rule 6, Rule 13 and Rule 13(A)– provisions with respect to non-appearance of the
defendant to the court of law. 

Appearance of parties
The word “appearance” under civil cases has a well-known meaning. It means the appearance of
the party to the suit before a court of law. The appearance can be by the party in person or
through his advocate or through any person along with the advocate of the party.
The mere presence of the party before the court of law is not what the word “Appearance”  under
the Order IX of the CPC,1908 means. But the word “appearance” under CPC means the
appearance made by the pleader who is able to answer all the material questions which are
relevant to the judicial proceedings in question before the court of law in a duly prescribed and
recognized manner and on the date allotted by the court to each party unless the court has
adjourned the proceedings of the case to some other day.
Rule 1 of Order IX is related to the appearance of the parties on the date of first hearing of the
case. It declares the mandatory presence of the parties before the court of law on the day fixed by
the court under the summon issued on the defendant.

According to Rule 2 of the Order IX, the failure on the part of the plaintiff to submit any
processing fee determined by the court of law on any stipulated date. Then such a failure would
result in the dismissal of the suit by the court. However, no such dismissal to the case can be
made where the defendant in person or through his agent attend the proceedings of the court and
answers all the material questions possessed by the court.

Where neither party appears

Rule 3 and Rule 4 of Order IX of Civil Procedure Code, 1908 deals with the cases where neither
of the parties in a case appears before the court of law on the date fixed by the court of law.
According to Rule 3 of the Order IX of CPC. In such a case, the suit shall be dismissed by the
court and according to Rule 4, the plaintiff can file a new suit in the court of law if he is able to
satisfy the court that there was a sufficient cause for his non-appearance in court.

Where only the defendant appears

Rule 8 of the Order IX of the CPC talks about the legal consequences of the non-appearance of
the plaintiff and the appearance of the defendant in the court of law. According to the rule, in a
case where the defendant makes an appearance in the court of law on the due date and the
plaintiff remains absent from the proceedings. The court shall make an order of dismissal of the
case unless the defendant admits a claim or parts thereof as in such a case the court can pass a
decree against the defendant upon such admission or where only the part of the claim is
admitted. If the case of the plaintiff has been dismissed by the court under Order IX of the CPC
then the plaintiff has two options to revive his case in the court of law. Which are as follows:

 The plaintiff can file a fresh suit in the court of law if the same has not been barred by
any law in force; or
 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. Vs. Raghu Raj,
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. As such non-appearance by
the counsel representing the plaintiff without any reasonable cause is not only unprofessional and
unfair to the plaintiff but is also unfair and discourteous towards the court of law. And so the
plaintiff should not suffer because of the fault of the counsel he has hired in good faith.
Where a summons is not served
Rule 6 of Order IX, when the plaintiff is present but the defendant is absent on the date of
peremptory hearing on a prescribed date. According to Rule 6 of Order IX, when the plaintiff is
present but the defendant is absent on the date of peremptory hearing on a prescribed date of
hearing then the court takes the decision about the consequence of such non-appearance with
respect to the status of summon which is served to the parties in the case by the court of law.
Following are the consequences of non-appearance of the defendant and the appearance of the
plaintiff with respect to varying statuses of the summon which is served: 

 In the case where the summon is duly served the court can declare that the suit shall
be heard ex-parte;
 In the case where the summon is not duly served then, the court can order the issue of
a second summon and that the same to be served to the defendant;
 When the summon is served to the defendant but the sufficient time was not given to
him to make an appearance in the court of law and answer the material questions in
the case on the day fixed by the court. The court shall postpone and fix the hearing of
the case to some other day which shall be notified to the defendant;
 When in a case the delay in issuance to the defendant is caused due to the fault of the
plaintiff, the court may order the plaintiff to pay the costs occasioned by the delay in
the proceedings.

Ex parte decree
Rule 6(1)(a) of Order IX of the Civil Procedure Code empowers the court to pass any judgement
ex parte in case the defendant party in a case absents himself from the proceedings on the due
date fixed by the court of law which has been informed to him by the summon duly served on
him of the case. An Ex parte decree is neither void nor inoperative but it is voidable at the option
of one party which may seek the order of annulment of the decree.