Appearance and Non-

appearance of the party

 What is Order IX, CPC?

Order IX of the Civil Procedure Code, 1908 or CPC deals with the appearance of
plaintiff and defendant before a court and also highlights the consequences of non-
appearance.
Order IX under the schedule provides for the appearance of the parties before the court
and lays down consequences of non-appearance in threefold manner, viz.
i. when both parties have not appeared,
ii. when the plaintiff has not appeared and
iii. when the defendant has not appeared.
Under Order IX, Rule 1, after the written statement has been filed and summons have been
issued by the court, is for the defendant to justify the cause of action raised by the plaintiff.

The defendant is required to appear before the court either in person or through his/her
lawyer.

To hear the response of the defendant and also to prepare his/her own case, the plaintiff is
also required to be present before the court himself or herself or through his/her lawyer.
 Consequences of Non-appearance

 As aforementioned, there can be three situations in this case,

1. When Both parties are absent

2. Only plaintiff is absent
3. Only defendant is absent
In each case law provides different remedies.
We will try to understand each of them one by one.
 1)When Both Parties Do not Appear

Under Rule 2 of Order IX is that, when both the parties do not appear, the
suit should be dismissed which means that the plaint should be dismissed.
However, the provision uses the word ‘may’ which makes it a
discretionary power at the hands of the judge.
In H.K. Shah v. T.S. Bhasin(AIR 1972 J&K19)
It was clearly held by the court that the parties have a right to be heard and given
appropriate opportunities for the same.
 2)When plaintiff does not appear

 According to rule 8, suit can be dismissed by a court in a case where the plaintiff fails to
appear before the court even after the service of summons to the defendant.
 If any of the claims are admitted by the defendant, the suit will proceed on the admitted
claims and any claim that is not accepted may rejected in absence of plaintiff
 Lakshmi Commercial Bank v Hansraj AIR 1981 P&H 228
Where the issue is framed in a suit after hearing the parties, it is not proper for the court to dismiss
due to absence of the plaintiff
 Remedy available to plaintiff

 When a suit is dismissed under the rule 8, the plaintiff is not allowed to bring fresh suit
for the same cause of action.
 He/she can apply to the same court to set aside the order of dismissal under Rule 9 on
showing sufficient cause for his/her non-appearance.
 Examples of sufficient cause
i. When plaintiff is engaged in some other court
ii. A bone fide mistake on part of plaintiff is sufficient cause
 3)When defendant does not appear

 A defendant may not appear before the court on first hearing for three circumstances as mentioned
under rule 6 of order IX
1. The defendant chooses to remain absent despite proper service of summons
2. The defendant was not served with summons
3. The defendant was served the summons but at later stage it did not appropriate sufficient time for him to
appear
 Threefold Consequences

 When defendant stays absent from hearing after proper service of summons, the court is
entitled to continue with the proceedings by hearing the plaintiff(ex-parte proceedings)
 When defendant is not issued a summon at all, a second summons has to be issued and
served upon him. Court is not allowed to pass adverse order against defendant in such
cases(Principle of natural justice- audi alterem partem)
 Ex-parte proceedings

 Sub rule 1(a) of Rule 6 with Rule 13 of order IX deal with ex-parte proceedings
 Violative of Principle of Natural Justice
 Vital for the court to approach with caution and provide every opportunity to defendant to
appear before the court before declaring the suit to be ex-parte
 Supreme Court observed that it is confined to the first hearing in the suit and does not per
se apply to subsequent hearings(Arjun Singh v Mohindra Kumar AIR 1964 993)
 Ex-parte proceedings(continued…)

 The trial court to scrutinize the available proceedings and documents.

 It proceeds by constructing judgement by dealing with points at issue one by one.
 Because defendant is absent, court has no obligation to admit evidence, admissibility of
which is excluded by law.
 Inadmissible evidence should not be allowed to influence the decision
 Remedies available to defendant

1. File appeal from the ex parte decree under sec 96 of CPC(appeal)

2. File for review of judgement under Order 47 rule 1(review)
3. Apply under rule 13 for an order to set aside the ex parte decree, provided the
application is made within 30 days from the date of the decree.
 Case study: National Institute Of Mental health vs C.
Parameshwara on 13 December, 2004

Time line Facts

29 Jun 1965 Respondent appointed as pharmacist in National Institute of Mental Health

21 Jun 1988 Respondent charge-sheeted for misappropriation of Rs.1,76,688.46

20 Feb 1993 Enquiry officer submits findings that in 1987 shortage of funds was observed holding respondent liable
for the same
1 Mar 1993 A show cause notice served to respondent- why penalty should not be imposed on him?

12 Apr 1993 Respondent was removed from the position of employment

10 Jun 1993 Respondent is served with notice to pay the penalty (misappropriated amount) with interest (results in
failure)
13 Mar 1995 Appellant files a suit in court of civil judge Bangalore to recover funds

16 Feb 1996 Written statement filed by respondent

23 Dec 1997 Government of Karnataka refers the suit to labour court.
The labour court Frames the issue- “Whether the action of the appellant in removing the respondent
from service 12 Apr 1993 was justified?”
16 Aug 2000 Framing of issues by civil court: “Whether the respondent caused the pecuniary loss of
Rs.1,76,688.46?”
 Flowchart

The respondent is Respondent files a suit in Write petition by the

Labour court sets aside the appellant in HC, staying the
removed from Labour court removal
employed position. order of labour court

Failure by respondent to
pay the penalty Dismissed by the civil
judge and respondent files
revision petition before
HC

The appellant moves to Issues framed by the civil Respondent files stay of this
Bangalore civil court to court( was the respondent suit u/s 10 and 151 of CPC
file a suit for recovery of Respondent files written
responsible for the till the writ petition of the
the misappropriated sums statement
high court is disposed of. Whether the stay is
pecuniary loss?)
with interest maintainable?
 Reasoning behind the judgment

 Object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously

trying two parallel suits in respect of same matter in issue
 Fundamental test to attract section 10 is whether on final decision being reached in
previous suit, such decision will operate as resjudicata in subsequent suit.
 Key words being “the matter in issue is directly and substantially in issue”
 In present case, the appellant had initiated the proceeding on charges of misappropriation
of drugs and on basis of findings on disciplinary enquiry the appellant dismissed the
respondent.
 The labour court passed the award setting aside the order of dismissal
Reasoning (continued…)

 Thus as can be seen from above facts, both the proceedings operated in different spheres
and subject matter is distinct.
 The cause of action is also distinct in both the cases.
 Hence in the suit section 10 CPC has no application .