Appearance of Parties and Consequence of Non-appearance- Order IX of CPC- Practical Insights

Appearance of Parties and Consequence of Non-appearance- Order IX of CPC- Practical Insights

INTRODUCTION:

Order IX of the Code of Civil Procedure, 1908 (hereinafter referred to as the “Code”) deals with issues as regards the appearance of parties to the suit and consequences apropos their non-appearance.

Order IX, Rule 1 of the Code stipulates that parties to a suit are to present themselves before the court on the date fixed in the summons issued by the court to the defendant; summons are issued, firstly, to secure the appearance of the defendant (in person or through pleader) and, secondly, to enable the defendant to answer the claim of the plaintiff.

Order IX, Rule 2 of the Code states that, where the plaintiff fails to pay the court-fee or postal charges chargeable for the service of summons to the defendant or fails to present the copies of the plaint as required by Order VII, Rule 9 of the Code, then, the suit of the plaintiff can be dismissed, regards being had to the discretion of the court. An appeal cannot be preferred against an order passed by the court dismissing the suit under Order IX, Rule 2 of the Code; only a revision under Section 115 of the Code can be preferred against such an order dismissing the suit.[1]   

Order IX, Rule 3 of the Code further states that, where on the date fixed for the hearing of the suit, neither of the parties to the suit appears, then, the suit can be dismissed. Dismissal under this rule does not amount to a decree and no appeal as such lies from it; the plaintiff can either bring a fresh suit or can apply under Order IX, Rule 4 of the Code to set aside the dismissal.  

Order IX, Rule 4 of the Code stipulates that, when a suit is dismissed under Order IX, Rule 2, or, Order IX, Rule 3, of the Code, then, a fresh suit on the same cause of action is not barred if within limitation. An application for restoration of suit under Order IX, Rule 4 is to be preferred within 30 days of dismissal of the suit.[2] Once the application for setting aside the dismissal is allowed, the defendant is entitled to get notice of restoration and the date of further hearing[3]; the requirement of notice to the defendant is mandatory (and not directory) and non-service of notice is sufficient enough to get the decree set aside.[4]

Order IX, Rule 5 of the Code states that, a suit shall be dismissed where the plaintiff after the return of summons being not served, fails to apply for fresh summons within a period of 7 (seven) days reckoning from the date on which the earlier summons were returned as un-served. However, the court shall not dismiss the suit, if the plaintiff satisfies the court that: (a) despite best endeavours, the plaintiff failed to discover the residence of the defendant; (b) defendant is avoiding the service of process; and/or, (c) there is sufficient cause favouring the plaintiff to pray for the extension of the time for the service of summons upon the defendant. Where a suit is dismissed under Order IX, Rule 5 of the Code, the plaintiff is not prevented from bringing a fresh suit.[5]

Order IX, Rule 6 of the Code provides for the procedure that is to be adopted when on the first date of hearing of the suit only the plaintiff appears and the defendant does not appear despite the summons being duly served on the defendant, or, summons being duly served on the defendant but not within sufficient time, or, when summons were not duly served. Under Order IX, Rule 6 of the Code, the defendant can be proceeded against ex parte provided summon were duly served upon him within sufficient time.

Order IX, Rule 7 of the Code contemplates a situation where by the case was proceeded ex parte since the defendant did not appear before the court of law, or, where the defendant failed to appear before the court of law after filing of the written statement, but, thereafter the defendant appears before the court of law and assigns good cause for his previous non-appearance, and thereby, prays for the setting aside of the ex parte order.

Order IX, Rule 8 of the Code deals with a situation where by the suit is dismissed in default, for, only the defendant appears before the court of law and the plaintiff fails to appear. Under Order IX, Rule 8 of the Code, a suit cannot be dismissed for non-appearance of the plaintiff if: (a) the defendant admits the whole of the claim of the plaintiff; or, (b) the defendant admits the claim of the plaintiff only in part and not in whole; the court, therefore, shall decree the suit accordingly in favour of the plaintiff, as against the defendant.  

Order IX, Rule 9 of the Code states that, where a suit is dismissed either in part, or, in whole, under Order IX, Rule 8 of the Code, then, a fresh suit on the same cause of action is barred.[6] An application for restoration of the suit under Order IX, Rule 9 is allowable provided it is made within 30 days of the dismissal of the suit.[7] An appeal can be preferred under Order XLIII, Rule 1(c) of the Code against an order rejecting an application under Order IX, Rule 9 of the Code[8]; however, a revision may lie from against an order restoring a suit dismissed in default.[9]  

Order IX, Rule 10 of the Code provides that where there are more plaintiffs than one, and one or more of them appear before the court of law on the date fixed, while the others do not appear, then, the court may permit the suit to be proceeded as if all the plaintiffs have appeared, or may pass such an order as the it thinks just.

Order IX, Rule 11 of the Code provides that where there are more defendants than one, and one or more of them appear before the court of law while the others do not appear, then, the court may permit the suit to be proceeded as if all the defendants have appeared, or may pass such an order as it thinks just.

Order IX, Rule 12 of the Code states that when the plaintiff and/or the defendant, who have been ordered to appear before the court of law in person, neither appear nor show sufficient cause for non-appearance, then, such plaintiff and/or defendant are to be subjected to all the Rules as provided for in Order IX of the Code in this behalf, which are as such applicable apropos the plaintiffs and/or the defendants, who do not appear.[10]

Order IX, Rule 13 of the Code states that an ex parte decree passed against a defendant can be set aside if the defendant satisfies the court on either of the two counts: (a) the summons were not duly served on the defendant, or, (b) the defendant was prevented by any “sufficient cause” from appearing before the court when the suit was called out for hearing. The court has the discretion to set aside the ex parte decree passed against the defendant on such terms as to costs or otherwise (deposit of decretal amount in the court) as the court deems fit in the facts and circumstances of each case.[11] It is important to note that, the second proviso to Order IX, Rule 13 of the Code states that, the court shall not set aside an ex parte decree merely on the ground of irregularity in the service of the summons in a case where the defendant had sufficient notice of the date of hearing of the suit, and had enough time to appear and answer the claim of the plaintiff. An application under Order IX, Rule 13 of the Code must be preferred within 30 days from the date of the decree, or, where the summons were not duly served, within 30 days from the date of the knowledge of the decree.

Order IX, Rule 14 of the Code states that, no ex parte decree can be set aside without notice to the opposite party. Moreover, in the case of, Mahesh Yadav v. Rajeshwar Singh[12], it was held that, an order setting aside an ex parte decree is a judicial order and therefore, it must be supported by reasons.   

PRACTICAL INSIGHTS:

1. Order IX, Rule 2 of the Code states that, where summons are not served upon the defendant in consequence of plaintiff’s failure to pay the costs for service of summons or present copies of the plaint thereof, then the suit filed by the plaintiff may be dismissed. However, despite non-furnishing of costs for service of summons and failure to present the copies of the plaint thereof, if the defendant (in person or through pleader) appears before the court to answer the claim of the plaintiff, then the suit of the plaintiff shall not be dismissed. Moreover, if the suit is dismissed under Order IX, Rule 2 of the Code, nothing bars the plaintiff either to file a fresh suit in respect of the same cause of action, or, to apply for the setting aside of the order of dismissal under Order IX, Rule 4 of the Code.
2. In the case of Salem Advocates Bar Association, Tamil Nadu Union of India[13], it was held that the period of 7 (seven) days mentioned in Order IX, Rule 5 of the Code is merely directory and is not mandatory.
3. Order IX, Rule 6 of the Code states that, where the defendant fails to appear before the court of law on the date fixed for hearing, then, the defendant can be proceeded against ex parte. Defendant can apply for the setting aside of the ex parte order under Order IX, Rule 7 of the Code, but the underlying principle remains that, until the suit is finally decided, the defendant has a right to come forward and defend the suit, that is to say, even if the defendant fails to furnish good cause for his previous non-appearance, he cannot be penalised in the sense of being forbidden from taking part in further proceedings of the suit or of whatever might still remain of the trial; the only disability the defendant shall suffer is that, he will not be relegated to the same position that he occupied at the start of the trial.[14]
4. In the case of Arjun Mohindra[15], it was held that, there is no material difference between the expressions “good cause” as used in Order IX, Rule 7 of the Code and “sufficient cause” as used in Order IX, Rule 13 of the Code.
5. Order IX, Rule 8 of the Code contemplates a situation where by the defendant appears but, the plaintiff does not appear on the date fixed for hearing, and owing to the non-appearance of the plaintiff, the court dismisses the suit. It is essential to note that, to dismiss the suit of the plaintiff without hearing him is a serious matter and such course should be adopted only when the court is satisfied that ends of justice requires it to be so done. The court is powerless to dismiss a suit when the plaintiff fails to appear before the court owing to his death.
6. Order IX, Rule 9 of the Code states that, if the plaintiff elucidates a “sufficient cause” that prevented him from appearing before the court, then the court may set aside the order passed by it under Order IX, Rule 8 of the Code. In the case of, Raman Arunachalam[16], it was held that, if sufficient cause is shown by the plaintiff for his non-appearance, then re-opening of the trial of the case is mandatory, but when sufficient cause is not shown, it is merely directory. Also, in the case of, Madhumilan Syntex Ltd. v. Union of India[17], it was held that, if the court is satisfied that there was sufficient cause as regards the non-appearance of the plaintiff, then, the court may set aside the order of dismissal and fix a day for proceeding with the suit.
7. Period of limitation for moving an application under Order IX, Rule 13 of the Code is 30 days from the date of decree, but where it is found that the summons were not duly served then the period of limitation begins to run from the date of knowledge of the decree.[18]
8. “Sufficient cause” for the purpose of Order IX, Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast rule can be laid down. In the case of P. Srivastava v. Raizada[19], it was held that, the relevant date for deciding “sufficient cause” for non-appearance by the defendant is the date on which the ex parte decree was passed, and, the previous negligence or past defaults of the defendant which have already been condoned are not to be looked into. In sum and substance the test that is to be applied is whether the party honestly intended to remain present at the hearing of the suit and did his best to do so; sufficient cause must be other than lack of knowledge of the proceedings. In the case of Parimal v. Veena[20], the Hon’ble Supreme Court of India, held that, the term ‘sufficient cause’ used in Order IX, Rule 13 of the Code means that the defaulting party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been ‘remaining inactive’ or ‘not acting diligently’.
9. It is a settled law that for allowing/disallowing an application under Order IX, Rule 13 of the Code, the merits of the case are not to be looked into. In the case of, Kewal Ram Ram Lubhai[21], it was held that the court is obliged to set aside an ex parte decree only against those defendants who have preferred an application under Order IX, Rule 13, that is to say, if in a suit by X against P, Q and R, an ex parte decree was passed against the defendants, and thereafter an application was preferred for setting aside the ex parte decree by P and Q, but not R, on the ground that the summons were not served on them, then, the ex parte decree can be set aside apropos P and Q, but not R. Further, it is important to note that, the first proviso to Rule 13 of Order IX categorically states that, if the nature of decree is such that it cannot be set aside against one such defendant preferring application under Rule 13 of Order IX alone, then, the ex parte decree must be set aside against all other defendants also. For example: R sues X and Y on a promissory note, and an ex parte decree is passed against both the defendants. Thereafter, X alone applies to set aside the decree and shows sufficient cause for his absence, then, decree must be set aside against Y also, in as much as the liability of both is based on a common ground.
10. Explanation to Rule 13 of Order IX of the Code makes it abundantly clear that, where an appeal has been preferred against an ex parte decree, for setting aside the decree ex parte, and the appeal has been disposed of on any ground other than the withdrawal of the said appeal, then, no application can be preferred to set aside the ex parte decree under Rule 13 of Order IX of the Code. Apart from this, following points of consideration must be borne in mind:
    1. An appeal lies against an order rejecting the application preferred to set aside the ex parte decree under Order XLIII, Rule 1(d) of the Code.
    2. No appeal, but only revision under Section 115 of the Code, lies against an order setting aside an ex parte
    3. The inherent powers of the court as provided for under Section 151 of the Code cannot be exercised for setting aside an ex parte decree, when the defendant fails to establish existence of ‘sufficient cause’ apropos his non-appearance.
11. Provisions apropos Rule 13 of Order IX of the Code are not applicable to ‘summary suits’ filed under Order XXXVII of the Code.[22] Although Rule 7 of Order XXXVII of the Code states that except as provided the procedure in suits under Order XXXVII of the Code shall be the same as the procedure applicable to suits instituted in the ordinary manner, but, Rule 4 of Order XXXVII of the Code specifically provides for the setting aside of a decree passed ex parte under Order XXXVII of the Code. Unlike Order IX, Rule 13 of the Code, Order XXXVII, Rule 4, of the Code speaks of ‘special reasons’ and not ‘sufficient reasons’ to set aside a decree passed ex parte. The expression ‘special circumstances’ has not been defined in the Code, nor it is capable of any precise definition by the court, owing to the vast expanse of human problems that might have prevented the defendant from appearing before the court to answer the claim of the plaintiff.
12. An ex parte decree is a decree within the purport of Section 2(2) of the Code. An appeal against an ex parte decree can be preferred under Section 96(2) of the Code. A revision can also be preferred under Section 115 of the Code against an ex parte
13. When an ex parte decree is passed by the court against the defendant apart from taking recourse of filing a review petition, or, a suit for setting aside the ex parte decree on the ground of fraud played by the plaintiff on the court; the defendant has further, two clear options available with him, namely, first, to file an appeal under Section 96(2) of the Code against the decree passed ex parte; and second, to file an application under Order IX, Rule 13 of the Code. The aggrieved defendant can move ahead simultaneously with both the options, but in case the appeal preferred fails, then, owing to the explanation appended to Rule 13 of Order IX of the Code which is to be construed strictly, the application preferred under Order IX, Rule 13 of the Code is not maintainable, however, converse of this proposition is not true, that is to say that, in case the application preferred under Order IX, Rule 13 of the Code fails then an appeal filed under Section 96(2) of the Code is not maintainable. Moreover, an appeal can be preferred against the dismissal of the application under Order IX, Rule 13 of the Code under Order XLIII, Rule 1 of the Code.[23]
14. Order XVII of the Code deals with ‘Adjournments’ and Rule 2 of Order XVII of the Code categorically states that, where on the day to which the hearing of the suit is adjourned, the parties to the suit or else any of them fails to appear before the court then, the court may proceed to dispose of the suit in one of the modes specified by Order IX of the Code in that behalf, or, the court shall make such other order as it deems fit.  

CONCLUSION:

1. Where a suit is dismissed under Order IX, Rule 2, or, under Order IX, Rule 3 of the Code, the plaintiff can bring a fresh suit or else can apply for the setting aside of such an order of dismissal of suit under Order IX, Rule 4 of the Code.
2. To challenge the order of dismissal of suit under Order IX, Rule 5 of the Code, a revision under Section 115 of the Code can be preferred.[24]
3. When an application is preferred for setting aside an ex parte decree on the ground of non-service of summons, then, it is obligatory upon the party preferring the application for setting aside the ex parte decree to disclose the source of knowledge about the passing of the ex parte[25]
4. Order IX, Rule 7 and Order IX, Rule 13 of the Code operate on varied grounds. Order IX, Rule 13 of the Code on one hand provides for a mechanism to seek the cancellation of an ex parte decree finally disposing of the suit, whereas, Order IX, Rule 7 of the Code on the other hand provides for a mechanism to seek the cancellation of an ex parte
5. The period of limitation for moving an application under Order IX, Rule 7 of the Code is 3 years; this period of limitation is provided for in Article 137 of the Limitation Act, 1963. This limitation period of 3 years begins to run from the date on which the ex parte order is passed.
6. Where the suit has been dismissed under Order IX, Rule 8 of the Code, the plaintiff cannot move in appeal, rather the plaintiff can seek the setting aside of the order passed under Order IX, Rule 8 of the Code by moving an application before the same court dismissing the suit under Order IX, Rule 9 of the Code.
7. In the case of, Onkar Singh Angrez Singh[26], it was categorically held that, non-appearance of counsel on account of strike call is not a sufficient cause for restoration of suit dismissed in default within the purport of Order IX, Rule 9 of the Code.
8. An order passed dismissing an application preferred under Order IX, Rule 9 of the Code is appealable under Order XLIII, Rule 1(c) of the Code.
9. An application under Order IX, Rule 13, of the Code for setting aside an ex parte decree is to be preferred within 30 days from the date of the decree passed ex parte.
10. An order passed dismissing an application preferred under Order IX, Rule 13 of the Code is appealable under Order XLIII, Rule 1(d) of the Code.
11. Where an ex parte decree is passed, that is, decree is passed in absence of the defendant, then, the defendant has the following remedies available to him: (a) To apply to the court which has passed the ex parte decree to set it aside under Order IX, Rule 13 of the Code; (b) To prefer an appeal against the ex parte decree under Section 96 (2) of the Code; and (c) To prefer review of the ex parte decree under Order XLVII, Rule 1 of the Code.
12. The first proviso to Order IX, Rule 13 of the Code deals with the scenario where a decree is of such a nature that it has to be set aside against all the defendants despite the fact that only one applicant applies. These situations are: (i) where the decree is one and is indivisible; and, (ii) where the suit could result into inconsistent decree if the decree is not set aside against the other defendants also. An example to illustrate situation (ii) is this: P alleges that, Q and R are in joint possession of an immovable property and sues Q and R seeking a relief of declaration, stating that, P is in joint possession with Q and R. Q is served with a copy of summons but R remains un-served. Both, Q and R do not appear on the date of hearing and an ex parte decree is passed against both, Q and R. R applies for setting aside of the ex parte decree against him and the decree is accordingly set aside. Thereafter, R is able to establish that, P has no title to the property and thus, is not entitled to the relief of declaration sought by him. In such a scenario, there are bound to be two (2) conflicting/incoherent decrees wherein, in one, P has a decree against Q declaring that, P is in joint possession with Q and R, and the other, wherein R is able to establish that, P has no title and that P is not in joint possession with Q and R. In such a scenario, the ex parte decree obtained by P must be set aside against Q also.
13. No application for setting aside an ex parte decree can be heard and decided without notice being issued to the opposite party. Thus, the purport of Rule 14 of Order IX of the Code is that, an application for setting aside an ex parte decree cannot be heard and decided ex parte.

[1] See: Aakarsh Kamra, Code of Civil Procedure, Chapter 6: Appearance of Parties and Consequence of Non-Appearance, Lexis Nexis, First Edition (2015), p.125

[2] See: Article 123 of the Limitation Act, 1963

[3] See: Jawar Prasad Shaw v. Jhaina Ghosh, AIR 2005 NOC 303 (Cal)

[4] See: Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054

[5] See: Order IX, Rule 5(2) of the Code of Civil Procedure, 1908

[6] The test that is to be applied to consider whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, is this: “Are the causes of action in the two suits in substance and not technically identical?” The term ‘cause of action’ is to be construed with reference to the substance of the action and not the form of the action. See: Mohammed Khalil Khan v. Mahbub Ali Khan, AIR 1949 PC 78; and Suraj Rattan Thirani v. Azamabad Tea Co. Ltd., AIR 1965 SC 295

[7] See: Article 122 of the Limitation Act, 1963

[8] See: K.P. Jaya Kumar v. K. Ravindran, AIR 2004 Ker 209 (DB)

[9] See: Sir Dinshaw Fardunji Mulla, The Key to Indian Practice, Chapter 8: Hearing and Disposal, Lexis Nexis, Eleventh Edition (2016), p.141

[10] See: Surya Narayana Raju v. Appanna, AIR 1969 AP 645

[11] See: V.K. Industries v. M.P. Electricity Board, AIR 2002 SC 1151

[12] (2009) 2 SCC 205

[13] (2005) 6 SCC 344

[14] See: Arjun Singh v. Mohindra, AIR 1964 SC 993; East India Cotton Mfg. Co. v. S.P. Gupta, 28 (1985) DLT 22

[15] AIR 1964 SC 993

[16] AIR 1936 Ran 335

[17] AIR 2007 SC 1481

[18] See: Kailash Chand v. Smt. Hemlata, 1998 (2) CCC 304 (Raj.)

[19] AIR 2000 SC 1221

[20] (2011) 3 SCC 545

[21] AIR 1987 SC 1304

[22] See: Rajni Kumar v. Suresh Kumar Malhotra, 2003 (3) SCALE 434

[23] See: Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626

[24] See: Bank of Baroda v. Menubhai Jivanji Patel, AIR 2006 Guj 37

[25] See: Firoz Khan v. Bibi Hasina Khanam, AIR 1994 Pat 103

[26] AIR 1993 P&H 134