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.

In Damu Diga v. Vakrya Nathu, the plaintiff sued the defendants, D1 and D2. on the date fixed
by the court for appearance of the parties to the suit only D2 appeared in the court. The
subordinate court erred while passing the order of dismissal of the case. However in an appeal
against the decision of the court. It was held that the present case comes under the purview of
Rule 4 of Order IX of CPC and court should take into consideration the fact that not only the
plaintiff in the case was absent from the proceedings. But, defendant number 1 was also absent
and the according to Rule 4, the court must allow the plaintiff to apply for an order setting aside
the dismissal of the case by the court.