PROJECT REPORT ON

“APPEARANCE OF PARTIES AND CONSEQUENCES OF NON-

APPEARANCE”

IN PARTIAL FULFILLMENT FOR THE REQUIREMENTS OF THE

COURSE BA. LLB (HONS.) IN THE SUBJECT OF

UNIVERSITY INSTITUTE OF LEGAL STUIDES, PANJAB UNIVERSITY,

CHANDIGARH

CODE OF CIVIL PROCEDURE

Submitted to Submitted by -
Prof. (Dr.) Karan Jawanda Vikrant
University Institute of Legal Studies Roll no: 147/20 (Sem.-7)

Panjab University, Chandigarh B.A LLB (Sec-C)

UILS, PU, Chandigarh
 ACKNOWLEDGEMENT
The success and final outcome of this project required a lot of guidance and
assistance from many people and I am extremely fortunate to have got this all
along the completion of my project report. Whatever I have done is only due to
such guidance and I would never forget to thank them.

I take this opportunity to record deep sense of gratitude to my teacher, Prof.

Karan Jawanda, University Institute of Legal studies, Panjab University,
Chandigarh for her incontestably perfect unmatched guidance, encouragement,
valuable suggestions and efforts made during the preparation of this project and
during her lectures which enabled me to complete this project successfully on the
topic,

“APPEARANCE OF PARTIES ANDCONSEQUENCES OF NON-

APPEARANCE”

I owe my regards to the entire faculty of the University Institute of Legal Studies,
Chandigarh from where I have learnt the basics of Code of Civil Procedure and
whose informal discussions, intellectual support helped me in the entire duration
of this work.
 INTRODUCTION
Appearance and non-appearance is a major issue to settle a dispute between the
parties. As, mere appearance or non- appearance may determine the result of the
suit. The provisions of the Code of Civil Procedure, 1908 are based on general
principle of law that, as far as possible a proceeding is to be carried out in the
presence of both the parties to a suit. While this may be common knowledge, it
is not always the case. There have been times when the person against whom the
case has been filed may not appear in the court even after the issuance of
summons against the person.

The presence of the parties is crucial to conduct the court proceedings therefore
when a party does not appear in the court it has an adverse effect on the party that
does not appear. Thus, it is the duty of the concerned party to appear before the
trial court at a due time as the result may turn reverse to the non-appeared party.

The provisions of the Code of Civil Procedure, 1908 are based on the fact that it
is the duty ofthe concerned party to be aware of his rights, show vigilance towards
the court and establish his or her claim by taking the appropriate measures.

The word appearance means an appearance in person or through an advocate for

conducting a case in the court. So, the appearance may be by a party himself in
person or by an advocate or by a party in person along with his advocate.

Order IX of the Code of Civil Procedure lays down the laws regarding the
appearance of the parties and the consequences if they do not appear.

APPEARANCE OF THE PARTIES TO A

SUIT
Rule 1 of Order IX of the Code of Civil Procedure, requires the parties to the suit
to attend the court either in person or by their pleaders on the day which has been
 fixed in the summons for the defendant to appear and answer. So, the rule relates
to the appearance of the first hearing of the suit.

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/her non-appearance,
the court may, dismiss the suit if he is the plaintiff, or proceed ex-parte if he is
the defendant.1

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 court may dismiss the suit, but the second suit is not barred on the same cause
of action between the same parties, i.e., res judicata does not apply here.

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 may also apply for setting aside the dismissal if he is able to satisfy
the court that there was sufficient cause or reason behind his non-appearance. If
the court is satisfied with the cause of non-appearance, then it shall pass an order
setting aside the dismissal of the suit and shall fix a day for proceeding with the
suit.2

NON - APPEARANCE OF DEFENDANT

(Rule 6, 10)
1
Jagraj Singh v. Birpal Kaur, (2007) 2 SCC 564
2
Rule 4
 When only the plaintiff appears and the defendant does not appear, then an ex-
parte order shall be passed by the court 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 the court may proceed for ex-parte against the defendant and the
court may pass a decree in favour of the plaintiff, if the plaintiff proves his case.

Rule 6 of Order 9, however, is an enabling provision and enacts that the ‘court
may proceed ex parte’ against the defendant. There is no direction by the Code.
The court, therefore, should exercise this power in accordance with law keeping in
view the principles of natural justice and fair play. 3 This provision, however, is
confined to first hearing and does not per se apply to subsequent hearings. Even
while passing 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 Prasad4, it
has been held by the Supreme Court that it is the duty of the court to ensure that
averments in the plaint stand proved and the prayers asked before the court are
worthy of being granted.
As per Rule 10, when there are two or more plaintiffs and one or more of them
appear and the others do not appear, the court may permit the suit to procced as if
all the plaintiffs had appeared or make such order as it thinks fit.

NON - APPEARANCE OF PLAINTIFF

(Rules 7 - 11)
As per Rule 7, When the defendant appears on the adjourned day and assigns a
good reason for his previous non – appearance, the court may hear him upon such
terms as the courts directs as to costs treating as if he had appeared on the day

3
Sangram Singh v. Election Tribunal, AIR 1955 SC 455
4
Maya Devi v. Lalta Prasad( 2015) 3 SCC (Civ) 168
 fixed for appearance. It has been held that Rule 7 of Order 9 is directed to ensure
orderly conduct of proceedings by penalising improper dilatoriness calculated
merely to prolong the litigation. 5

As per Rule 8, when the defendants appears and the plaintiff does not appear and
the defendant does not admit the plaintiff’s claim, wholly or partly, then the court
passes an order of dismissing the suit. But Rule 8 enacts that if the defendant
admits the plaintiff’s claim as a whole or part thereof, the court will pass a decree
against the defendant upon such admission and dismiss the suit for the rest of the
claim. This rule will apply to a case where there is only one plaintiff, and he does
not appear and also where there are two or more plaintiffs and all of them remain
absent.

Rule 9 precludes the plaintiff from filing a fresh suit on the same cause of action.
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
may set aside the order of dismissal of the suit and fix a day for proceeding with
the suit.6

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. 7 Sufficient cause depends upon the facts and
circumstances of each and every case. When a party against whom an order is

5
Arjun Singh v. Mohindra Kumar, AIR 1964 SC (1964) 5 SCR 946
6
Lachi Tewari v. Director of Land Records, AIR 1984 SC 41
7
AIR 1952 Bho 33
 made appears on the same day and prays for recalling of order, normally, the
prayer should be granted by the court.

Before an order is passed by the court, notice must be served to the opposite party.8

As per Rule 11, when there are two or more defendants and one or more of them
appear and the others do not appear, the suit will proceed and at the time of
pronouncement of the judgement, the court may make such order as to the absent
defendants as it thinks fit. In such a case, a decree may be contested as one against
some of the defendants and ex parte against the rest.9

When Summons is duly served: Rule 6

Where it is proved that summons is duly served upon the defendant, but he fails
to appear, the court may proceed to hear the suit ex parte. In the leading case of
Sangram Singh v. Electrical Tribunal10, the Supreme Court ruled that the words
“court may proceed ex parte” is an enabling provision and not direction to the court
to proceed ex parte. A general rule founded on the principles of natural justice is
that proceeding in a court of justice should not be conducted behind the back of
any party. The discretion conferred on the court has to be judicially exercised.

When summon is not duly served (Rules 2, 5 ,6)

One of the fundamental rules 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 to a fair trial. 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

8
Rule 9 (2)
9
Venurai v. Sadashiv, AIR 1975 Bom 68: 1974 Mah LJ 951
10
AIR 1955 SC 425: (1955) 2 SCR 1
 case of Begum Para v. Luiza Matilda Fernandes11.
Rule 2 of Order IX holds that when the plaintiff fails to pay costs for service of
summons to the defendant or to present copies of the plaint, 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 and
shall fix a day for proceeding with the trial.

When the plaintiff fails to apply for a fresh summons for seven days after the
summons on the defendant or one of the defendants (where there are two or more
defendants) is returned unserved, the court will dismiss the suit against the
defendant or such defendants. But if within that period, the plaintiff satisfies the
court that (i) he has failed, in spite of his best efforts to discover the residence of
the defendant who has not been served or (ii) such defendant is avoiding service
of process or (iii) there is any other sufficient cause for extension of time, the court
may extend the time for such period as it thinks fit. If the suit of the plaintiff is
dismissed by the court within the period of limitation, he can file a fresh suit also.

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

11
(1984) 2 SCC 595
the hearing can be postponed by the court to a future date and notice will be given
to the defendant. Where the summons is not duly served or 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.

EX – PARTE DECREE

An ex parte decree is a decree passed in the absence of the defendant.

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
appear even after the summon has been duly served. The court may hear the suit
ex-parte and pass ex-parte decree against the defendant. An ex-parte decree is a
valid one and it is not null and void but is merely voidable unless it is annulled
on a legal and valid ground.

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: Rule 13

Rule 13 of Order 9 provides for setting aside ex parte decree. For setting aside an
 ex-parte decree, an application may be made by the defendant. Where there are
two or more defendants, any one or more of them may also make such application.
An application to set aside decree may 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 Consultancy12, 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.

Power and duty of the Court

When an application for setting aside ex parte decree is made by the defendants,
the court should consider whether the defendant was prevented by “sufficient
cause” from appearing before the court when the suit was called out for hearing.
If the court finds that there was sufficient cause for non -appearance, it is bound
to be set aside the decree. Conversely, if “sufficient cause” is not shown, an ex

12
1994 Supp (2) SCC 399
parte decree cannot be set aside. Approach of the court while dealing with an
application for setting aside ex parte decree should be liberal and elastic rather
than narrow and pedantic. An order setting aside ex parte decree is judicial; it
must be supported by reasons.

Test
The test which should be applied is whether the defendant honestly and sincerely
intended to remain present when the suit was called on for hearing and did his
best to do so.

Burden of Proof

The burden of proof that there was “sufficient cause” for non – appearance is on
the defendant. But it is enough if he proves that he attempted to remain present
when the suit was called on for hearing.

Notice to the Opposite Party

An ex parte decree cannot be set aside without issuing notice to the opposite party
and without giving him an opportunity of hearing. This is in consonance with the
principle of Natural Justice and Fair Trial.

Procedure
An application under Rule 13 for setting aside ex parte decree may be made by
the defendant. In case of death of defendant, his legal representative can also make
such application. It should be signed and verified by the party and not by his
advocate.

When an application for setting aside an ex parte decree is dismissed, no fresh

application would lie if such dismissal is on merits and rule of res judicata will
apply. But if the dismissal is for default of the appearance or circumstances have
been changed, a second application would be maintainable.
 Extent of setting aside ex parte decree
A peculiar situation arises where an ex parte decree is passed against all the
defendants but summonses are not served to all of them or an application to set it
aside is made by some of them or where against some of the defendants a decree
is passed on merits after hearing them but against some of the defendants it is
passed ex parte and an application to set it aside is made by one or more of the
defendants against whom a decree is passed ex parte. As a general rule, the court
will set aside the decree only against such defendant or defendants who had made
an application. The proviso, however, makes it clear that where the decree is of
such a nature that it cannot be set aside as against such defendant only, the court
may set it aside against the otherdefendants also. In the following cases, the decree
must be set aside as a whole:

1. Where the decree is joint and indivisible

2. Where the suit would result in two inconsistent decrees if the decree were

not set aside against the other defendants also.

3. Where the relief to which the applicant is entitled cannot effectively be

given otherwise than by setting aside the decree against the other
defendants also.
4. Where the decree proceeds on a ground common to all the defendants

CONCLUSION
The appearance and non-appearance of the parties will have duly effect on their
case, by dismissing the suit or hearing on the further date or ex-parte can be passed.
So, when the parties have not appeared in the court, then the court will have to take
up any step mentioned. In regard, to dismiss the suit it is the discretionary power,
that to dismiss the or not, in the hands of the judge. The judge can either dismiss
the suit, or can give a further date, by seeing the reason stated by the party, and
duly take the decision. There are situations upon both the plaintiff and the
 defendant, if the defendant did not appear to court, then the court may pass ex-
parte decree. On the other hand, if the plaintiff did not appear in the court then, the
court may dismiss the suit and give the further date for the proceedings, along with
it, the decision lies on the defendant. When any ex-parte decree is passed, it can
be set aside if the court may satisfy the reason given by them.

REFERENCES
Books
 The Code of Civil Procedure, 1908
 Takwani, C.K., Civil Procedure, 2017, Eastern Book Company, Lucknow, 8th edn.,2017
 Tandon’s, The Code of Civil Procedure, Allahabad Law Agency, Faridabad, 28th edn., 2016
Websites
 Pankhuri Anand, Appearance and Non-appearance of Parties in the Civil Suit, available at:
https://blog.ipleaders.in/appearance-non-appearance/ (accessed on 5th Nov 2022)

 Meher Sunil Dabrai, What are the effects of Non-Appearance of a Party to a Suit?, available
at :https://www.lawinsider.in/columns/what-are-the-effects-of-non-appearance-of-a-party-
to-a-suit (accessed on 5th Nov,2022)
 Saba Banu,Appearance and Non-Appearance under CPC, available at :
https://lexpeeps.in/appearance-and-non-appearance-under-cpc/(accessed on 5th Nov,2022)
 Naresh Kumar, Appearance and Non-Appearance of Parties || Order 9 || CPC ||, available at:
https://www.lawnotes4u.in/appearance-and-non-appearance-of-parties-order-9-cpc/
(accessed on 6th Nov 2022)
Revathy Anil, Apperance and Non Appearance OF Parties IN Civil SUIT, available at :
https://www.studocu.com/in/document/mahatma-gandhi-university/3-year-5-year-
llb/apperance-and-non-appearance-of-parties-in-civil-suit/30873333 (accessed on 7th Nov2022)