TOPIC – Appearance and non-appearance of parties

CODE OF CIVIL PROCEDURE I

LUCKNOW UNIVERSITY
SESSION 2020 -2021

SUBMITTED TO: SUBMITTED BY:

Mohd. Adil Ansari Ved Prakash Rao

(FACULTY OF LAW), VST (SEM), LLB(HONS)

UNIVERSITY OF LUCKNOW ROLL NO. 180013015095

 Acknowledgement

I would like to express my special thanks of gratitude to Mohd. Adil Ansari

who gave me the golden opportunity to do this wonderful assignment of Appearance and non-
appearance of parties who also helped me in completing my assignment .I am really thankful to
him .
Many people especially my classmates, have made valuable comment suggestions on this
proposal which gave us an inspiration to improve my assignment .I am thank all the people for
their help directly and indirectly to complete my assignment .
 INTRODUCTION
The provisions of the code of Civil Procedure are based on a general principle that, as far as
possible, no proceeding in a court of law should be conducted to the detriment of any party in his
absence. Order 9 of the code enacts the law with regard to the appearance of the parties to the
suit and the consequences of their non-appearance. It also provides a remedy for setting aside an
order of dismissal of the suit as also the setting aside of an ex-parte decree passed against the
defendant. There are 14 Rules in total which deal with the appearance of the parties and
consequences of non-appearance.

Appearance and non-appearance of parties during trial before the court is a crucial issue to
resolve civil dispute. Because, mere appearance or non-appearance can determine the ultimate
result of a civil litigation. The provisions of the Code of Civil Procedure (CPC), 1908 are based
on a general principle that, as far as possible , no proceeding in a court of law should be
conducted to the detriment of any party in his/her absence. Also, it is the duty of the concern
party to the aware of his rights, show vigilance towards the court and establish his/her claim by
taking proper measures.

In law, appearance means appearance in person or through advocate for conducting a case.
However, appearance by a pleader within the meaning of CPC does not mean mere presence in
the court, it means “appearance by a pleader” duly instructed and able to answer all material
questions.
The word “appearance” has a well-recognized meaning and means appearance in person or
through advocate for conducting a case. So, appearance may be by a party in person or by an
advocate or by a party in person along with his advocate. “Appearance” by a pleader within the
meaning of Order IX does not, as if appearance by a party in person means mere presence of the
court; it means “appearance by a pleader” duly instructed an able to answer all material questions
relating to suit.

APPEARANCE OF THE PARTIES:

RULE 1: Parties to appear on day fixed in summons for defendant to appear and answer. 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, and the suit shall then be
heard unless the hearing is adjourned to a future day fixed by the court.

IN MANIBHAI VS. AMBALAL, it was held that the parties must remain present before the
Court when the matter is called out. The court is not bound to wait for any party. The court
would be justified in disposing of the matter in absence of the party. But when the party appears
and gives satisfactory explanation for not remaining present, the court should take a lenient view
especially when the application for restoration or setting aside ex-parte decree is made on the
same day. The primary concern of the court should be to dispose of the cases before it on merits
so as to see that substantial justice is done. Disposing of the cases on technicalities especially the
absence of a party at a time when the suit is called out, may lead to considerable injustice.
Therefore, the court must consider the application for restoration especially when it is made soon
after the dismissal order in a practical and pragmatic manner so as to see that the ends of justice
are not defeated.

RULE 12: Consequence of non-attendance, without sufficient cause shown, of party ordered to
appear in person – where a plaintiff or defendant, who has been ordered to appear in person does
not appear in person or show sufficient cause to the satisfaction of the court for failing so to
appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and
defendants, respectively who do not appear.

Rule 1 requires the parties to the suit to attend the court in person or by their pleaders on the day
fixed in the summons for the defendant to appear. Rule 12 provides that where a plaintiff or a
defendant, who has been ordered to appear in person, does not appear in person or show
sufficient cause for non-appearance, the court may dismiss the suit, if he is the plaintiff, or
proceed ex parte if he is the defendant.

WHERE NEITHER PARTY APPEARS:

RULE 3: Where neither party appears, suit to be dismissed-where neither party appears when
the suit is called on for hearing, the court may make an order that the suit be dismissed.
 IN DAMU VS. VAKRYA, in a suit, A sues B and C. A and C do not appear when the suit is
called on for hearing, but B appears. The court makes an order dismissing the suit. As between A
and B the order is one under Rule 8, so as to attract the applicability of Rule 9. But as between A
and C, the order is one under the present rule, so that Rule 4 applies and not Rule 9.

Where the trial court, in its order dismissing the suit for default, merely referred to the plaintiff’s
absence and not to the defendant’s absence, the order must be construed to be one under Order 9,
Rule 3. The court cannot dismiss the suit in total merely to penalize the plaintiff for his absence.
Rules of procedure are to be so construed as to advance and not defeat the remedy. Mere non-
mentioning in the order of absence of either party would not take it out of the purview of Rule-3.

Unless a date has been fixed for the appearance of the defendant and neither party appears when
the suit is called on for hearing on the day fixed, this rule will not apply. This was held in RAM
RAMBIJAYA VS. SAKALPAT TWEARY.

There can be no question of a suit being called on for hearing, unless the parties had been
served, and where that had not been done, the suit cannot be dismissed under this rule for default
of appearance of the plaintiff.

This was held in RAM REDDY VS. YENKA REDDY. This rule applies when there is a default
of appearance when the suit is called on for hearing, and it is immaterial that there had been
appearance in the suit, and even earlier on that very date, in an application in the suit-
ACHINASH CHANDRA vs. SURAJYA.

WHERE ONLY PLAINTIFF APPEARS:

RULE 6: Procedure when only Plaintiff appears

1. Where the plaintiff appears and the defendant does not appear when the suit is called on for
hearing, then –

a) When summons duly served – If it is proved that the summons was duly served, the court
may make an order that the suit be heard exparte;

b) When summons not duly served – if it is not proved that the summons was duly served, the
court shall direct a second summons to be issued and served.

c) 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 a future day to be fixed by the court,
and shall direct notice of such day to be given to the defendant.
 2. Where it is owing to the plaintiff’s default that the summons was not duly served or was not
served in sufficient time, the court shall order the plaintiff to pay the costs occasioned by the
postponement.

IN RAFI vs. ABDUL AZIZ, it was held that where the date of hearing is declared a holiday, the
court should not proceed ex-parte on the next working day. Fresh notice should be given. The
case was fixed for final hearing on a day which was subsequently declared to be a holiday. On
the next following day, the case was disposed of ex-parte without the consent of the parties.
Disposal was invalid.

RULE 10: Procedure in case of non-attendance of one or more of several plaintiffs- where there
are more plaintiffs than one, and one or more of them appear and the others do not appear, the
court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the
same way as if all the plaintiffs had appeared or make such order as it thinks fit.

IN KULENDRA vs. KALI KISHORE, two plaintiffs, A and B filed a suit on a mortgage. A did
not appear at the hearing in spite of an order of the court under O3, r1. B appeared and the suit
was heard and a decree was passed in favor of both A and B. It was held that this could be done
under this rule.

WHERE ONLY DEFENDAND APPEARS:

RULE 7: Procedure where defendant appears on day of adjourned hearing and assigns good
cause for previous non-appearance- where the court has adjourned the hearing of the suit ex-
parte, and the defendant at or before such hearing, appears and assigns good cause for his
previous non-appearance, he may, upon such terms as the court directs as to costs or otherwise
be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

Adjournment for ex-parte hearing – later appearance of defendant- Good cause Order IX, Rule 7
empowers Court to allow the defendant to contest on good cause for his previous non-appearance
being shown, when at or before ex-parte hearing the defendant appears.

In GAVICCI VS. UNION BANK OF INDIA, if the defendant was not present on a particular
date of hearing he has a right to appear on subsequent date of hearing. If the proceedings had
taken place in his absence on a previous date of hearing he has to show good cause for his
absence if he wants to get the proceedings taken by the court in his absence set aside but if no
proceedings were taken by the court it is not necessary for the defendant to show any good cause
or to get the previous order aside.

RULE 8: Procedure where defendant only appears – where the defendant appears and the
plaintiff does not appear when the suit is called on for hearing, the court shall make an order that
the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the
court shall pass a decree against the defendant upon such admission, and where part only of the
claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

If the defendant appears and the plaintiff does not appear, the procedure laid down in the present
rule is to be followed. All that a defendant is entitled to under this rule to have the plaintiff’s suit
dismissed. He is not entitled to call any evidence, even though it is to disprove charges that may
have been against him in the plaint. This rule does not apply in case of non-appearance by reason
of death.

MORE PLAINTIFFS THAT ONE:

IN KULENDRA vs. RAI KISHORI, it was held that this rule provides for the case where a
single plaintiff or all the plaintiffs if there are more than one, do not appear.

RULE 10: provides for a case where there are more plaintiffs than one ands one or more of
them appears and others do not appear.

MORE DEFENDANTS THAN ONE:

If there are several defendants, of whom one appears, the suit will be dismissed against the
defendant who appears under order 9, rule 8 and the plaintiff will order 9, rule 9 be precluded
from bringing a fresh suit against him. But as against the defendants who have not appeared, the
dismissal will be under order 9, rule 3 and the plaintiff will under order 9 rule 4 be at liberty to
bring a fresh suit against them.

RULE 9:

Decree against plaintiff by default bars fresh suit:

1. Where a suit is wholly or partly dismissed under rule 9, the plaintiff shall be 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, and if he satisfies the court that there was sufficient cause for his non-
appearance when the suit was called on for hearing the court shall make an order setting aside
the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit.

2. No order shall be made under this rule unless notice of the application has been served on the
opposite party. This rule provides for restoration of suits dismissed under rule 8 for non
appearance. Where the dismissal was not for default of appearance, the rule is not applicable.
The court gets jurisdiction to consider an application under this rule only if an order has been
passed under Rule 8.

Example: Where a suit for partition is dismissed as withdrawn order 9, rule 9 does not apply.
Such dismissal is not for default of appearance. When a suit was dismissed for non-appearance,
this rule would have no application if the date of hearing had not been fixed or if the same had
not been notified to the plaintiff.

SUFFICIENT CAUSE
Rule 7 uses the expression good cause while rule 9 and rule 13 use sufficient cause. These both
terms are not equivalent to each other. What is sufficient cause in each case is a question of fact
–

1. A plaintiff left the court- house, believing that a part-heard case which preceded his case
would occupy some time; he returned in about half an hour, and found out that his suit had been
called on and dismissed owing to his absence. He then applied to set aside the order of dismissal.
HELD: Refusing the application that the above circumstances did not amount to ‘sufficient
cause’ for non-appearance. MANI LAL VS. GULAM HUSAIN

2. Where it was the duty of an attorney’s clerk to examine every evening the board the next day,
and to inform his master what cases in which he was engaged as attorney were on the board for
hearing, and the clerk, neglecting his duty, did not inform the master, and no one appearing for
the plaintiff, the suit was dismissed. HELD: The absence was caused by a bonafide mistake and
the suit was restored on payment by the attorney of the costs of the hearing. ORDIENTAL
CORN vs. MERCANTILE CORPN. LTD.

3. In two cases (CHHOTALAL vs. AMBALAL and SORABJI vs. RAMJILAL) the H.C. of
Bombay said that the rule of practice to be observed in the subordinate courts in the Bombay
Presidency is that when a party arrives late before the judge, and finds that his suit has been
dismissed before his arrival, he is entitled to have his suit restored, though there may be ‘no
sufficient cause’ for his late arrival, on payment of such costs as may have been incurred by
reason of non-appearance by the defendant.

RULE 11: Procedure in case of non-attendance of one or more several defendants – where there
are more defendants than one, and one or more of them appear, and the others do not appear, the
suit shall proceed and the court shall, at the time of pronouncing judgement, make such order as
it thinks fit with respect to the defendants who do not appear.

WHERE SUMMONS IS NOT SERVED:

It is a fundamental rule of the law of procedure that a party must have a fair and reasonable
opportunity to represent his case. And for that purpose, he must have a notice of the legal
proceedings initiated against him. The service of summons on the defendant is, therefore, a
condition precedent to a fair trial. If the summons is not served on the defendant or it does not
give him sufficient time to represent his case effectively, no decree can be passed against him.
 RULE 2: 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 of postal charges (if
any) chargeable for such service, or failure to present copies of the plaint or concise statements,
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.]

Rule 2 of Order 9 enacts that the suit may be dismissed where the summons is not served on the
plaintiff’s failure to pay costs for service of summons to defendant or to present copies of the
plaint. No such order, however, can be passed in spite of such failure by the plaintiff if the
defendant appears in person or by his authorised agent on the day fixed for him to appear. The
plaintiff may file a fresh suit even after the dismissal of the suit under Rule 2 in respect of the
same cause of action or may apply for an order to set aside such dismissal. And if the court is
satisfied that there was sufficient cause for such failure, the court shall set aside such order of
dismissal and shall fix a day for proceeding with the trial.

RULE 5: (1) Where after a summons has been issued to the defendant, or to one of several
defendants, and returned unserved the plaintiff fails, for a period of ][seven days][ from the date
of the return made to the Court by the officer ordinarily certifying to the Court returns made by
the serving officers, to apply for the issue of a fresh summons the Court shall make an order that
the suit be dismissed as against such defendant, unless the plaintiff has within the said period
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, in which case the Court may extend
the time for making such application for such period as it thinks fit.]

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

Where it is not proved that the summons is duly served on the defendant, the court will direct a
fresh summons to be issued and served on the defendant. Where it is proved that the summons is
duly served on the defendant but there was not 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 a
future day and give notice of such day to the defendant. Where the summons is not duly served
or is not served in sufficient time due to the plaintiff’s default, the court shall order the plaintiff
to pay the costs occasioned by such postponement.
 CONCLUSION
This scenario creates a very critical position in the justice delivery system. Where, on one hand,
the Hon’ble Court is duty bound to dismiss the proceedings if sufficient reasons are not
established which has become the need of time owing to the large number of cases pending at all
stages, on the other hand the Court cannot deviate from the very own objective of the judicial
system, i.e. Justice for all. The Court by taking a strict or technical view of the procedures
prescribed cannot cause prejudice to the innocent party who has faith not only on the Advocate
he has engaged but the ultimate faith in Judiciary that the Court, in no circumstances would
cause anything to affect the rights of the Parties. This kind of situation necessarily calls for a new
practice duly prescribed by law so that neither the innocent Party suffers due to the default or
negligence of an Advocate but the Courts can adopt the procedures meant for doing substantial
justice keeping in mind the Right to speedy trial in every case, be it Civil or Criminal so that the
faith in the Indian Judicial system remains alive.
 Bibliography

By books :
Dr.Avtar singh, the cod of civil procedure, central law publications, fifth edition 2019

The code of civil procedure act 1908

C.K.Takwani, civil procedure, ebc, eighth edtion 2019

Web link:

https://lawtimesjournal.in

https://www.legalbites.in

https://blog.ipleaders.in