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Order 9

The document outlines rules related to the appearance of parties in a court case and the consequences of non-appearance. It discusses situations such as when one or both parties do not appear, as well as procedures for dismissing suits, adjourning hearings, and setting aside decrees issued ex parte (without one party present). Key points include that suits may be dismissed if neither party appears, plaintiffs can re-file suits in some cases, and defendants can apply to have ex parte decrees set aside if they had sufficient cause for missing the hearing.

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263 views12 pages

Order 9

The document outlines rules related to the appearance of parties in a court case and the consequences of non-appearance. It discusses situations such as when one or both parties do not appear, as well as procedures for dismissing suits, adjourning hearings, and setting aside decrees issued ex parte (without one party present). Key points include that suits may be dismissed if neither party appears, plaintiffs can re-file suits in some cases, and defendants can apply to have ex parte decrees set aside if they had sufficient cause for missing the hearing.

Uploaded by

saket anand
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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APPEARANCE OF PARTIES AND

CONSEQUENCE OF NON-APPEARANCE
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.
Rule 2. Dismissal of suit where summons not served in consequence of
plaintiffs failure to pay cost - 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 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.

Rule 4. Plaintiff may bring fresh suit or Court may restore suit to file -
Where a suit is dismissed under rule 2 or rule 3, the plaintiff may
(subject to the law of limitation) bring a fresh suit, or he may apply for
an order to set the dismissal aside, and if he satisfies the Court that
there was sufficient cause for [such failure as is referred to in rule 2],
or for his non-appearance, as the case may be, the Court shall make
an order setting aside the dismissal and shall appoint a day for
proceeding with the suit.
Rule 5. Dismissal of suit where plaintiff after summons returned unserved, fails for
[seven days] to apply for fresh summons. - [(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.
Rule 6. Procedure when only plaintiff appears. - (1) 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 shall be heard ex parte.
(b) When summons not duly served.-if it is not proved that the summons was
duly serve, the Court shall direct a second summons to be issued and served on
the defendant;
(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 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 plaintiffs' 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.
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 terms 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.

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 admits the claim or part thereof, in which case the Court
shall pass a decree against the defendant upon such admission, and, where
part only of the claim has been admitted, shall dismiss the suit so far as it
relates to the remainder.
Rule 9. Decree against plaintiff by default bars fresh suit. - (1)
Where a suit is wholly or partly dismissed under rule 8, 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
terms as to costs or otherwise as it thinks fit. and shall appoint a
day for proceeding with suit.

• (2) No order shall be made under this rule unless notice of the
application has been served on the opposite party.
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.

Rule 11. Procedure in case of non-attendance of one or more of 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 judgment,
make such order as it thinks fit with respect to the defendants who do
not appear.
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 no appear.
Setting Aside Decrees Ex Parte
Rule 13. Setting aside decree ex parte against defendant. - In any case in
which a decree is passed ex parte against a defendant, he may apply to the
Court by which the decree was passed for an order to set it aside; and if he
satisfies the Court that the summons was not duly served, or that he was
prevented by any sufficient cause from appearing when the suit was called
on for hearing, the Court shall make an order setting aside the decree as
against him upon such terms as to costs, payment into Court or otherwise as
it thinks fit, and shall appoint a day for proceeding with the suit;
• Provided that where the decree is of such a nature that it cannot be set
aside as against such defendant only it may be set aside as against all or
any of the other defendants also:
• [Provided further that no Court shall set aside a decree passed ex parte
merely on the ground that there has been an irregularity in the service
of summons, if it is satisfied that the defendant had notice of the date
of hearing and had sufficient time to appear and answer the plaintiff's
claim]
• [Explanation.-Where there has been an appeal against a decree passed
ex parte under this rule, and the appeal has been disposed of an any
ground other than the ground that the appellant has withdrawn the
appeal, no application shall lie under this rule for setting aside that ex
parte decree.]

• Rule 14. No decree to be set aside without notice to opposite party. -


No decree shall be set aside on any such application as aforesaid unless
notice thereof has been served on the opposite party.

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