Order IX of the Code of Civil Procedure (CPC), 1908, delineates the procedures and consequences concerning the appearance and non-appearance of parties in civil suits. These provisions ensure that proceedings are conducted fairly, allowing parties adequate opportunity to present their cases, while also enabling courts to proceed efficiently when parties fail to appear.

1. APPEARANCE OF PARTIES

Under Rule 1 of Order IX, parties to a suit are required to appear before the court either personally or through their legal representatives on the date specified in the summons. This appearance is crucial as it allows the court to proceed with the case, ensure due process, and address the issues at hand.

2. NON-APPEARANCE OF BOTH PARTIES

When neither the plaintiff nor the defendant appears on the date fixed for hearing, Rule 3 of Order IX empowers the court to dismiss the suit. However, such dismissal does not preclude the plaintiff from bringing a fresh suit on the same cause of action, subject to the law of limitation. Alternatively, the plaintiff may apply for an order to set the dismissal aside if they can satisfy the court that there was sufficient cause for their non-appearance.

3. NON-APPEARANCE OF PLAINTIFF

• Defendant Present: If the defendant appears and the plaintiff does not, Rule 8 mandates the court to dismiss the suit, unless the defendant admits the claim or part thereof. In such cases, the court may pass a decree against the defendant upon such admission.

• Remedies for Plaintiff: Following dismissal under Rule 8, the plaintiff has two remedies:

  • File a fresh suit, subject to limitation laws.

  • Apply under Rule 9 to set aside the dismissal by demonstrating sufficient cause for non-appearance.

In Chhotalal v. Ambala Hargovan, the Bombay High Court observed that if a party arrives late and finds their suit dismissed due to non-appearance, they are entitled to have their suit or application restored upon payment of costs.

4. NON-APPEARANCE OF DEFENDANT

• Plaintiff Present: When the plaintiff appears, but the defendant does not, and the summons was duly served, Rule 6 empowers the court to proceed ex parte and pass a decree in the plaintiff’s favor. However, if the summons was not duly served or did not provide sufficient time for the defendant to appear, the court may order a fresh summons.

• Setting Aside Ex Parte Decree: A defendant against whom an ex parte decree has been passed may apply under Rule 13 to have the decree set aside by demonstrating sufficient cause for their non-appearance. The court must be satisfied that the defendant was prevented by any sufficient cause from appearing when the suit was called for hearing.

5. DISMISSAL DUE TO NON-SERVICE OF SUMMONS

Rule 2 provides that if the plaintiff fails to pay the requisite costs for serving the summons on the defendant, the court may dismiss the suit. However, if the defendant appears on the day of hearing, either in person or through a pleader, such dismissal cannot be ordered. The plaintiff is entitled to file a fresh suit when the suit is dismissed under this rule. If the court is satisfied that there is a reasonable reason behind such failure to pay costs, it may set aside the order of dismissal.

6. APPLICATION TO SET ASIDE DISMISSAL OR EX PARTE DECREE

Under Rule 4, where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may apply for an order to set the dismissal aside. If the court is satisfied that there was sufficient cause for such failure as referred to in Rule 2, or for the plaintiff’s non-appearance, it shall make an order setting aside the dismissal and appoint a day for proceeding with the suit.

7. CONSEQUENCES OF NON-ATTENDANCE OF ONE OR MORE PLAINTIFFS OR DEFENDANTS

• Multiple Plaintiffs: Rule 10 states that if one or more plaintiffs fail to appear, the court may permit the suit to proceed if the remaining plaintiffs are present and interested in proceeding. The absent plaintiffs may be subjected to any order the court deems fit.

• Multiple Defendants: According to Rule 11, if one or more defendants fail to appear, the court may proceed against the absent defendants and pass a decree as it thinks fit. The presence of other defendants does not prevent the court from proceeding ex parte against the absent ones.

8. LEGAL MAXIMS AND PRINCIPLES

• Audi Alteram Partem: This principle mandates that no person should be condemned unheard. Order IX embodies this by providing opportunities for parties to be heard and present their case.

• Actus Curiae Neminem Gravabit: This maxim means that an act of the court shall prejudice no one. If a party suffers due to a mistake of the court, the court is bound to rectify the situation.

9. RELEVANT CASE LAWS

• Sangram Singh v. Election Tribunal, AIR 1955 SC 425: The Supreme Court held that the code is a procedural law designed to facilitate justice and further its ends. The rules of procedure are the handmaid of justice and not its mistress.

• Begum Para v. Luiza Matilda Fernandes, AIR 1977 SC 336: The court emphasized that when there is no service of summons or it does not give sufficient time for effective presentation of the case, a decree cannot be passed against the defendant.