Appearance And Non Appearance Of The Parties: Order 9 2d402o

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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 ed against the defendant. There are 14 Rules in total which deal with the appearance of the parties and consequences of non-appearance. 1 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 (C), 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 C does not mean mere presence in the court, it means “appearance by a pleader” duly instructed and able to answer all material questions. 2 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.

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C.K.TALWANI , “Civil Procedure with Limitation Act 1963” , Eastern Book Company,2013, p.275. www.dhakatribune.com/juris/2014/consequence-non-appearance

2 IN MANIBHAI VS. AMBALAL,3 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,4 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 3 4

1987(1) GLR 557 1920 ILR 44 Bom767, 56 IC 455

3 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-3.5 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. 6 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. 7 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 appears1. 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.

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MULLA, “The Code of Civil Procedure” Vol.2, Lexis Nexis, Nagpur 2007, P.535 AIR 1942 Pat 56 AIR 1956 Hyd 139

4 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,8 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,9 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 ed 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 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.

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AIR 1987 All 117 AIR 1921 Cal 176

5 Adjournment for ex-parte hearing – later appearance of defendant- Good causeOrder 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,10 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. In SUNIL KUMAR & ORS. Vs. PRAVEEN CHAND & ANR,11 where contention of the defendant was that the defendant’s counsel could not attend the court due to illness resulting in ing the ex-parte order in the matter and the facts of the case showed that the cause pleaded by the defendant for setting aside the ex-parte order appeared to be good cause and since the application was filed within 17 days itself from the date of ex-parte order. So the defendants may suffer irreparable loss if the ex-parte order is not set aside, therefore, to meet the ends of justice, ex-parte order was set aside and Trial Court was directed to decide the suit as early as possible. 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 its the claim, or part thereof, in which case the court shall a decree against the defendant upon such ission, and where part only of the claim has been itted, 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. 12

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1986 1 Cur Civ Cas 559 (Del) AIR 1964 SC 993 at p. 1004

MULA “ The Code of C.P.”, P.553

6 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. 13

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 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 ed under Rule 8.

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A.N. Saha, “The Code of Civil Procedure”, Premier Publishing Co”, 2012, p 1551

7 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. 14 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. 15 SUFFICIENT CAUSE Rule 7 uses the expression good cause while rule 9 and rule 13 use sufficient cause. These both 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. 14 15

BANERJEE’S commentary on the code of Civil Procedure, 1908, co. Allahabad, 2007 P.967. JATINDRA KUMAR DAS, “Code of Civil Procedure”, PH1 Learning Publishers, 2013, p.362

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In a later case (CURRUMBHOU vs. MOOS); it was held that there was no such hard and fast rule, and that the court had a discretion in each case to deal with the matter. 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 ed 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 ed 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.

9 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.

CONTENTS INTRODUCTION _________________________________________________ 1 APPEARANCE OF THE PARTIES: __________________________________ 1 WHERE NEITHER PARTY APPEARS: _______________________________ 2 WHERE ONLY PLAINTIFF APPEARS: ______________________________ 3 WHERE ONLY DEFENDAND APPEARS:_____________________________ 4 MORE PLAINTIFFS THAT ONE: ___________________________________ 6 MORE DEFENDANTS THAN ONE:__________________________________ 6 SUFFICIENT CAUSE ______________________________________________ 7 WHERE SUMMONS IS NOT SERVED: _______________________________ 8