Appearance And Examination of the Parties in a Civil Suit

By | February 10, 2020
Appearance And Examination of the Parties in a Civil Suit

This article deals with Order IX and Order X of the Civil Procedure Code and ameliorates the understanding of the Provisions of CPC for Appearance and Examination of the plaintiff and the defendant in a civil suit.

Introduction

A civil proceeding initiates with the plaintiff filing a plaint before the appropriate civil court and the defendant being called or summoned by the court for the proceedings. The general principle of natural justice states that no one shall be condemned unheard.

It means that everyone has a right to be heard before a court of law in the most reasonable and fair manner. Hence, it becomes vital that the proceedings are carried on in the presence of the parties to allow them to hear the claims or averments made by the opposite party and reply to them adequately.

To uphold the principle of fair hearing, the Code of Civil Procedure, 1908 entails Order IX and Order X dealing the appearance of the parties in the proceedings and examination of the parties. The provisions make it mandatory for both the parties to a suit to appear before the court either themselves in person or through their pleaders to ensure fair trial. The relevant provisions of the Code dealing with the appearance and examination of the parties are explained hereunder.

Appearance by the Parties to a Suit

Order IX of the CPC deal with appearance and non-appearance of parties before a court of law. The general procedure that is followed is that the plaintiff files a plaint before the court which is scrutinised by the court before admission. If the plaint is in accordance with the requirements of Order VII and the court finds the plaint admissible, it will admit the plaint and issue summons to the defendant for appearance in the court on a specified date and time.

Now, Rule 1 of Order IX obliges both the parties, i.e. the plaintiff and the defendant to be present on the date specified in the summon sent to the defendant before the court.

The provision also gives an alternative to the parties to be present by appearing through their respective pleaders. It means that even if the plaintiff or the defendant is absent, their respective lawyers can attend the proceeding and answer on their behalf.

The provision uses the term “shall” which leaves no scope option with the parties to refuse to appear before the court and the court is empowered to decide the suit in the favour of the party present on the fixed day. If both the parties appear on the said date, the suit proceeds smoothly and the hearing continues until it is adjourned and finally disposed of. However, there can be three situations besides the presence of the parties. Firstly, that both the parties are absent, secondly, that the plaintiff is absent but the defendant is present and lastly, that the defendant is absent but the plaintiff is present.

Rule 3 of Order IX of CPC empowers the court to dismiss the suit in the first situation, i.e. when both the parties fail to appear on the specified date.

The power is discretionary and not mandatory. It means that the court needs to look into the reasons why the parties failed to appear, the consequences of an order of dismissal on the plaintiff and the defendant and whether the order is in the interest of justice or not. ‘

If the court is completely satisfied that there are no sufficient reasons with the parties for their absence from the hearing, only then the court can dismiss the plaint.

In Sham Dasani v. Central Bank of India[1], Chief Justice Beaumont held that dismissing the plaint of the plaintiff without hearing him/her in the matter violates his/her right to fair trial and thus, such power should be exercised with caution and only in the interest of justice. However, the plaintiff is entitled to institute a fresh suit against the defendant in the same matter under Rule 4 even if the prior suit was dismissed for non-appearance.

Rule 6 deals with the situation when only the plaintiff appears before the court on the fixed date but the defendant remains absent.

There can be three distinct situations when the defendant does not appear, i.e. (a) the summon was served but the defendant did not appear, (b) summons was not served to the defendant and (c) there was a delay in serving the summons.

If it is proved that the summons was duly served to the defendant, the court is empowered to hear the ex-parte, i.e. in the absence of the defendant. The court may hear the claims of the plaintiff and pass an order if it believes that the claims are duly proven. If it is proved before the court that the summon was not served to the defendant, the court must grant another opportunity for the summon to be served and must fix another date for hearing after the summon is served.

If the summon is served lately such that the defendant could not have received sufficient time to appear before the court, the court should adjourn the hearing on a fixed day to another appropriate day that the court deems fit to allow the defendant to appear. It must be noted that the power to adjudge a matter ex-parte is completely discretionary and the judge may opt to adjourn the proceedings to grant a second chance to the defendant. However, the procedure in the other two cases is mandatory and the court cannot do away with these requirements.

Rule 8 deals with the situation when only the defendant appears before the court and the plaintiff remains absent. According to the rule, the court should, in all cases, dismiss the suit if the plaintiff does not appear on the first day of hearing fixed by the court.

However, in practice, this is not generally followed and the plaintiff is given the opportunity to explain the reasons for his non-appearance.

There can further be two situations when the plaintiff does not appear and the defendant does, i.e. the defendant may accept the claims of the plaintiff in toto or he may accept the claims in part. When the defendant accepts the entire claim, the court should pass an order in favour of the plaintiff and direct the defendant to pay appropriate damages or any other prayer made by the plaintiff. On the other hand, if the claim is accepted in part, the part which has not been accepted or denied should be dismissed by an order.

Rule 10 is an exception to the general rule of dismissal of the plaint in the case of non-appearance of the plaintiff. It states that when there more plaintiffs than one and one or more of them do not appear but at least one plaintiff appears, the court can continue with the suit in the ordinary manner as if all the plaintiffs are present and should not pass any adverse order with respect to the other plaintiffs absent.

Examination of Parties by the Court

Order X of the CPC deal with the examination of the parties to a suit by the court. Examination means that the court shall ask certain questions to the plaintiff and the defendant with respect their claims, replies and counter-claims to frame the relevant issues that need to be addressed in the proceedings.

The examination does not connote an examination by the adverse party in a witness box but merely an inquiry conducted by the judge before proceeding with the case. After the plaint and written submissions are submitted, the court holds its first hearing in the presence of both the parties and/or their pleaders and the examination is conducted at this stage.

Rule 1 of Order X provides that at the first hearing of the case when the plaint and written statement are submitted to the court, the court shall ensure whether the parties accept or deny the allegations, claims and counter-claims of the other party as mentioned in the plaint or the written statement.

It is essential to clear the position of the parties with respect to each other’s claims so that the court can proceed with only those issues or claims which are in dispute and does not waste time on those which are being accepted. As the examination progresses, the court makes a record of all the things accepted or denied by the parties.

Rules 1A, 1B and 1C were brought in the code by the amendment of 2002 and are extremely momentous in the present world. These provisions empower the court to refer the parties to settle their dispute outside the court using alternative dispute resolution mechanisms such as mediation or conciliation.

If the court believes that the parties to a suit are not violent towards each other and are duly co-operating in the process, it may order the parties to resolve the matter through mediation or other alternative means.

Rule 2 of the Order further empowers the court to continue examining the parties after the question of acceptance and denial of allegations to throw light on the matters in dispute. While examining the parties, the court can ask questions with respect to the background of the facts in dispute and circumstances that led to the institution of the suit.

For instance, if ‘A’ institutes a suit against ‘B’ for transfer of certain property in A’s name, the court may ask the parties how they acquired title over the property, whether the property is self-acquired or inherited, the value of the property, etc. The court is also empowered to examine and put questions to any witness or any person present in the court who is acquainted with the facts and circumstances of the case.

Rule 3 requires that all the questions put by the court to the parties and the witness should be recorded by the judge either himself or through any agent working under his supervision. The record must be maintained in written and should be used to prove against the person in future if the person denies any of his averments later.

Also, the answers to the questions should also be recorded in the same manner and all of this should form part of the record. It means these questions and answers should be annexed with the file of the case to remain with the court. This concludes the process of examination of the parties and witnesses by the court in any civil suit.


References

  1. Dinshaw F. Mulla, The Key to Indian Practice: A Summary Of The Code Of Civil Procedure, 11th 2015.
  2. K. Takwani, Civil Procedure, 8th ed. 2018.

[1] Sham Dasani v. Central Bank of India, 1952 SCR 391.


  1. Issue and Service of Summons in Civil and Criminal Cases
  2. Civil Procedure Code

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