APPREANCE AND NON APPREANCE OF PARTIES

ORDER IX
INTRODUCTION
The fate of any case depends on an important factor i.e., the appearance and non-
appearance of parties in a civil suit. Non-appearance of any party in the count on a
determined day may result in an adverse decision. The provisions of the CPC (Civil
Procedure Code, 1908) states that no proceedings detrimental to the interest of any of the
parties to the suit shall be conducted before the court. The parties must appear in front of
the court on the due date which has been fixed by the court of law. In the case of the
non-appearance of one party to the suit, the judgement may go in favour of the other
party appearing in front of the court.
Rule 1 of Order IX of the Code of Civil Procedure, 1908 states that the parties to the suit
need to attend the court either in person or by their pleaders on the due date which has
been fixed by the court of law. If on the given due date either plaintiff or the defendant
do not appear in the court and neither have the sufficient cause for the non-appearance,
the court is empowered to decide under Rule 12 of Order IX as follows –
Contd.
a) If the defendant does not appear in the court of law on the due date, the court can
dismiss the suit.
b) If the plaintiff does not appear in the court of law on the due date, the court can pass
ex-parte order.
Rules regarding the appearance and non-appearance of parties under Order IX of the
CPC –
Rule 2 states the consequences regarding the non-deposition of fees by the plaintiff.
Rule 3&4 states the consequences of non-appearance of both the parties to the suit.
Rule 8, 9, and 9A deals with the consequences of non-appearance of the plaintiff to the
court of law.
Rule 6, 13, and 13A deals with the consequences of non-appearance of the defendant to
the court of law.
 APPEARANCE OF PARTIES
Appearance means the appearance of the party to the suit before the court of law. This appearance can
be by the party in person or through his advocates or any person along with the advocates of the party.
The appearance of the parties on the date of the first hearing of the case is mentioned in Rule 1 of Order
IX.
When Neither Party Appears
According to Rule 3 & 4 of Order IX of CPC, 1908 states that when both the parties to the suit does not
appear before the court of law on the due date fixed. Rule 3 of Order IX states that in such a case the
suit can be dismissed by the court of law and Rule 4 states that plaintiff can file a new suit if he satisfies
the court the sufficient reason for his non-appearance in court.
When neither the plaintiff nor the defendant appears before the court when the suit is called for
hearing, then the court is empowered to dismiss the suit under Rule 3 of Order IX. The dismissal of the
suit under this rule does not put a bar on filing a fresh suit on the same cause of action as per Rule 4.
The plaintiff can also apply for setting aside the dismissal if he is able to satisfy the court that there was
sufficient behind his non-appearance. If the court is satisfied with the cause of non-appearance then it
may set aside the order of dismissal and schedule a day for the hearing of the suit.
WHEN ONLY PLAINTIFF APPEARS
An ex-parte order can be passed against the defendant when only the plaintiff appears and the
defendant does not appear in the court of law on the due date. The court can proceed for an ex-
parte order against the defendant only when services of the summon are proved in the court and
then the court may pass a decree in favour of the plaintiff. If service of the summons is proved
then only the court can proceed for an ex-parte against the defendant and the court may pass a
decree in favour of the plaintiff. This provision applies only for the first hearing and not for the
subsequent hearings of the matter and the same has been held in the case of Sangram Singh v.
Election Tribunal.
Even while passing an ex-parte order it is the duty of the court to secure the end of justice even
in the absence of the defendant. In the case of Maya Devi v. Lalta Prasad,, it has been held by
the Supreme Court that -It is the duty of the court to ensure that statements in the plaint stand
proven and the prayers asked before the court are worthy of being granted. This provision of
passing ex parte order cannot be passed when there are more than one defendants in the case and
any of them appears.
WHEN ONLY DEFENDANT APPEARS
The legal consequences of the non-appearance of the plaintiff and appearance of the defendant in the
court of law are mentioned in Rule 8 of Order IX of the CPC, 1908. According to this rule, in a case
when the defendant appears in the court of law on the due date and the plaintiff remains absent, then
the court has the power to pass an order of dismissal of the case unless the defendant admits a claim.
The provisions laid down to deal with the appearance of only the defendant has been laid down
from rule 7-11 of Order IX. When the defendant appears but there is non-appearance of the plaintiff,
then there can be two situations:
1.The defendant does not admit the claim of the plaintiff, either wholly or any part of it.
2.The defendant admits the plaintiff claim.
If the defendant does not admit the claim of the plaintiff, then the court shall order for dismissal of the
suit. But, when the defendant admits completely or any part of the claim made by the plaintiff then the
court is empowered to pass a decree against the defendant on the ground of such admission and for
rest of the claim, the suit will be dismissed.
Dismissal of the suit of the plaintiff without hearing him is a serious matter and it should not be
adopted unless the court gets satisfied that in the interest of justice such dismissal is required, as cited
by Beaumont, C.J. in the case of Shamdasani v. Central Bank of India.
Contd.
In the case of The Secretary, Department of Horticulture, Chandigarh, and Anr. v. Raghu Raj,
the court held that the plaintiff should not suffer because of the non-appearance of the counsel
appointed by him with good faith that he will make an appearance without any reasonable cause in
the court of law whenever the plaintiff is called for in the court. The Court held that
notwithstanding any irregularity in service of summons deliberate inaction of the applicant despite
knowledge of the proceedings cannot be justified in his claim for setting aside the ex parte decree.
When the plaintiff does not appear because of death, the court has no power to dismiss the suit.
Even if such order is passed it will amount to a nullity as held in the case of P.M.M. Pillayathiri
Amma v. K. Lakshi Amma.
Application to set aside the dismissal
When the suit has been dismissed on the ground of non-appearance of the plaintiff then he can
make an application to set aside the order of dismissal. If the court is satisfied with the reason of
non-appearance as a sufficient cause then the court can set aside the order dismissing the suit and
fix a day for the proceeding of the suit. 
Contd.
Sufficient cause
For considering the sufficient cause of non-appearance of the plaintiff the main
point to be considered is whether the plaintiff really tried to appear on the day
which was fixed for hearing or not. When sufficient cause is shown by the
plaintiff for his non-appearance, then it is mandatory for the court to reopen the
suit. In absence of sufficient cause, it is upon the discretion of the court to set
aside the dismissal or not as held in the case of P.K.P.R.M. Raman Chettyar v.
K.A.P. Arunachalam Chettyar. Sufficient cause depends upon the facts and
circumstances of each and every case.
Contd.
In the case of Chhotalal v. Ambala Hargovan, the Bombay High Court observed that if the
party arrives late and find its suit dismissed due to his non-appearance then he is entitled to have
his suit or application restored with the payment of costs.
When summon is not served
Rule 2 to 5 of Order IX lays down the provision for the situation when the summon is not served
to the defendant. One of the fundamental law of procedural law is that a party must be given a
fair opportunity to represent his case. And, for this, a notice of the legal proceedings initiated
against him is obligatory. Therefore, service summons to the defendant is mandatory and it is a
conditional precedent. 
When there is no service of summons or it does not give him sufficient time for effective
presentation of the case then a decree cannot be passed against him as held in the case of Begum
Para v. Luiza Matilda Fernandes.
Contd.
Rule 2 of Order IX also holds that when the plaintiff fails to pay costs for service of summons
to the defendant then the suit may be dismissed. But, no dismissal can be made even in the
presence of such failure if the defendant appears on the day of hearing either in person or through
his pleader. However, the plaintiff is entitled to file a fresh suit when the suit is dismissed under
this rule. and, if the court is satisfied that there is a reasonable reason behind such failure to pay
costs then the court may set aside the order of dismissal.
When the summon is returned unserved and the plaintiff does not apply for fresh summons for 7
days from which the summon is returned unserved by the defendant or any of the defendants,
then the court can dismiss the suit against the defendant or such defendants
When the summon was not duly served to the defendant is not proved then the court can direct
to issue a fresh summon to the defendant for service. When the service of the summons is proved
before the court but the time prescribed in the summon is not sufficient for him to answer on the
day which has been fixed, then the hearing can be postponed by the court to a future date and
notice will be given to the defendant.
EX-PARTE DECREE
Rule 6(1)(a) of the CPC, 1908 states that the court has the power to pass any judgement ex-parte in
the case where the defendant does not appear in the court of law on the due date which has been
informed to him by the summon duly served on him of the case. An ex-parte decree is voidable at
the option of one party which may seek the order of annulment of the decree.
When the defendant is absent on the day of the hearing as fixed in the summon an ex-parte decree
can be passed. The ex-parte order is passed when the plaintiff appears before the court on the day of
the hearing but the defendant does not even after the summon has been duly served. The court can
hear the suit ex-parte and give ex-parte decree against the defendant.
An ex-parte decree is a valid one and it is not null and void but can be merely voidable unless it is
annulled on a legal and valid ground. An ex-parte can be enforced like a bi-parte decree and it has
all the forces as a valid decree as held in the case of Panduranga Ramchandra v. Shantibai
Ramchandra.
In the case of Hoechst Company v. V.S. Chemical Company, Supreme Court explained that an ex
parte decree is such a decree in which the defendant did not appear before court and the case is
heard in the absence of the defendant from the very beginning.
REMEDIES AGAINST AN EX-PARTE DECREE
When an ex-parte decree has been passed against a defendant, the following
remedies are available to him.
1.He can apply to the court under rule 13 of Order IX for setting aside the ex-
parte decree passed by the court.
2.He can appeal against that decree under section 96(2) of the Code or, prefer
revision under section 115 of the code when no appeal lies.
3.He can apply for a review under Order 47 Rule 1. Section 114 of the CPC
4.A suit on the ground of fraud can be filed.
SETTING ASIDE AN EX-PARTE DECREE
An application should be made by the defendant for setting aside an ex-parte
decree. There are some rules which need to be followed for setting aside an ex-
parte decree and when the defendant satisfies the court with sufficient cause,
after that only the ex-parte decree which has been passed can be set aside. 
There is a limitation period for setting aside an ex-parte decree and within that
period an application should be filed i.e. 30 days.
The grounds on which an ex-parte decree can be set aside are:
1.When the summons has not been duly served.
2.Due to any “sufficient cause”, he could not appear on the day of the hearing.
contd.
Sufficient Cause
The term sufficient cause has not been defined anywhere but as held in the case of UCO Bank v.
Iyengar Consultancy, it is a question which is determined upon the facts and circumstances of
the cases. The test to be applied for this is whether or not the party actually and honestly intended
to be present at the hearing and tried his best to do so. There are several instances which have
been considered as sufficient cause such as late arrival of the train, sickness of the council, the
strike of advocates, death of a relative of party etc. 
The burden of proof that there was a sufficient cause of non-appearance is upon the
defendant 
In case of Sohan Lal v. Kedar Nath, non-appearance of the party due to curfew in the city is a
sufficient cause for setting aside the ex parte decree. In absence of sufficient cause, the cases to
be set aside is upon the discretion of the court in P.K.P.R.M. Raman Chettyar v. K.A.P.
Arunachalam Chettyar.
CONCLUSION
The appearance and non-appearance of the parties directly affect the case and
helps in letting everyone know whether it will be carried on for the next hearing,
dismissed or an ex-parte decree will be given. During the whole procedure, the
court must keep in mind that nowhere any miscarriage of justice is done during
the dismissal or while passing an ex-parte decree.