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Appearance and Non-

appearance of Parties in the
Civil Suit
Introduction
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.

To know more about Ex-parte decree, please Click Here

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.