Appearance and Non-Appearance of Parties before a Court

By | September 23, 2020
Appearance and Non-Appearance of Parties

Order IX of the Civil Procedure Code, 1908 or CPC deals with the appearance of plaintiff and defendant before a court and also highlights the consequences of non-appearance. This article shall analyse various provisions of Order IX and also explain the several consequences in case of non-appearance by the parties to a suit.

I. Setting the Frame

To clearly understand the meaning and importance of appearance by the parties in a civil suit, it is essential that we understand the basic procedure of a civil suit. A suit commences with the filing of the plaint by the plaintiff which contains the grievances of the plaintiff and remedies s/he is seeking from the court. The plaint is responded through a written document called the ‘written statement’ which is submitted by the defendant.

Now, after the plaint and written statement have been duly filed, the court looks into the cause of action and the merit of the case and summons are issued to both the parties ordering them to appear before the court on a specific date to initiate the suit. A summon is a letter from the court to the parties of the cases whereby the court informs the parties that their case has been admitted for first hearing and intimates the date to the plaintiff and the defendant.

Once the summons are issued to both the parties, they are required to be present before the court and continue the proceedings. Now, summons and appearance of parties is of significant import in a suit because unlike a criminal case, State cannot take the proceedings further nor can the court suo motu continue the proceedings. Thus, Order IX of the CPC comes into place.

II. What is Order IX, CPC?

The Civil Procedure Code is a hybrid law containing substantive and procedural provisions both. Schedule 1 of CPC contains several Orders which lay down the procedure to be followed in any civil suit. Order IX under the schedule provides for the appearance of the parties before the court and lays down consequences of non-appearance in threefold manner, viz. (i) when both parties have not appeared, (ii) when the plaintiff has not appeared and (iii) when the defendant has not appeared.

The first requirement under Order IX, Rule 1, after the written statement has been filed and summons have been issued by the court, is for the defendant to justify the cause of action raised by the plaintiff. It means that whatever violations plaintiff has complained of and whatever claims s/he has raised needs to be answered one by one by the defendant on the first hearing.

For this purpose, the defendant is required to appear before the court either in person or through his/her lawyer. Moreover, to hear the response of the defendant and also to prepare his/her own case, the plaintiff is also required to be present before the court himself or herself or through his/her lawyer.

The court decides a specific date and serves the summons upon the parties with that specific date on which they have to appear. Rule 1 is the only provision dealing with appearances of the parties and it makes it mandatory for both parties to appear on the first hearing. Other provisions explain the consequences of non-appearance.

III. Consequences of Non-appearance

As aforementioned, there can be three situations in this case, i.e.

  1. both parties are absent,
  2. only plaintiff is absent and
  3. only defendant is absent and in each case, the law provides a different remedy.

We will try to understand each of them one by one.

A. When Both Parties Do not Appear

The basic rule under Rule 2 of Order IX is that, when both the parties do not appear, the suit should be dismissed which means that the plaint should be dismissed. However, the provision uses the word ‘may’ which makes it a discretionary power at the hands of the judge. It means that if a judge has reason to believe that the case should not be dismissed, s/he can adjourn it for a later date.

Let us say the court receives a high profile case whereby a Multi-national Company has been sued for negligence by one of its customers or even employees. The court finds that the alleged negligence of grave nature and if true might affect a lot of lives. For instance, the Nestle Maggi situation, where Maggi Noodles was alleged to contain the metal lead. In such a scenario, the court may adjourn the suit for a later date even if the parties have failed to appear.

A dismissal under this rule is justified only where neither party appears. Thus, if the plaintiff or his agent or his pleader duly instructed is present, the fact that no evidence is adduced will not enable the Court to order a dismissal under this rule[1].

In H.K. Shah v. T.S. Bhasin[2], it was clearly held by the court that the parties have a right to be heard and given appropriate opportunities for the same. If the court fails to provide sufficient opportunities to be heard before passing an order of dismissal of the suit, such order is ultra vires and can be set aside.

Dismissing a suit in default is a decision, but simply consigning the case to records for default is no decision. ‘Consigned to record’ means Dakal Daftar and can be received on the motion of any of the interested parties[3]. Even the court suo motu can call the record for civil proceedings or such order can be made on the motion of instance of the party or suo motu by the court.

B. When Plaintiff Does Not Appear

According to Rule 8, a suit can be dismissed by a court in a case where the plaintiff fails to appear before the court even after service of summons to the defendant. In this case, the dismissal of suit is completely dependent upon whether the defendant accepts the claims raised by the plaintiff or not. If the defendant accepts or admits the claims, s/he shall be liable for such claims and any claim that is not accepted may be rejected in the absence of the plaintiff.

In the matter of Lakshmi Commercial Bank v. Hansraj[4], the court held that this rule would not apply where the suit is dismissed for plaintiffs non-appearance on a date fixed not for the hearing of the suit but for some interlocutory matter. Moreover, in Pirthi Nath, it was observed that where the issue is framed in a suit after hearing the parties, it is not proper for the court to dismiss the suit due to the absence of the plaintiff. That provision applies only when the court comes to the conclusion that the parties are not at issue[5].

When a suit is dismissed under this rule, the plaintiff is precluded from bringing a fresh suit for the same cause of action. S/He can apply to the same court to set aside the order of dismissal under Rule 9 on showing sufficient cause for her/his non-appearance. However, the dismissal of the suit does not operate as res judicata. It has been held by the Gauhati High Court that an order disposing of suit deciding the question of maintainability hearing only the defendant in absence of the plaintiff, can be treated as dismissed for default. It is not a decree inasmuch as such a decision does not decide the matter involved in the suit[6].

C. When Defendant Does not Appear (Ex-Parte Proceedings)

In any proceeding, a defendant may not appear before the court on first hearing for three circumstances as mentioned under Rule 6 of Order IX. These are:

  1. The defendant chooses to remain absent despite proper service of summons.
  2. The defendant was not served with the summons.
  3. The defendant was served with the summons but at such a later stage that it did not appropriate sufficient time for him to appear.

Thus, since there are three scenarios, the consequences are also threefold. When the defendant absents himself/herself from the hearing even in spite of proper service of summons, the court is entitled to continue with the proceedings of the suit by hearing only the plaintiff. These proceedings are called ex-parte proceedings which will be discussed in detail henceforth.

Further, when the defendant is not served with the summons at all, a second summons has to be issued and served upon him. In such cases, the court cannot pass any adverse order against the defendant. Lastly, when the summons is served but was delayed such that the defendant did not get sufficient time to appear, the court shall adjourn the proceedings for that date and fix a later date to hear the matter.

In Nahar Enterprises[7], where summons were served upon the defendant after the date fixed for his appearance, it was held obligatory on the part of the court to fix another date for his appearance and filing of written statement and directing the plaintiff to take steps for the service of fresh summons.

IV. Ex-Parte Proceedings

Sub-rule 1(a) of Rule 6 along with Rule 13 of Order IX deal with ex-parte proceedings. It has to be noticed that ex-parte proceedings are in a way violative of the principle of natural justice because the defendant is not given his/her right to be heard. Therefore, it is vital that the courts approach with caution and provide every opportunity to the defendant to appear before the court before declaring the suit to be ex-parte.

Discussing the scope of Rule 6 (1) (a), the Supreme Court observed that it is confined to the first hearing in the suit and does not per se apply to subsequent hearings[8]. In ex parte proceedings the necessity of plaintiff proving his/her case is not lost.

In a case which has proceeded ex parte, the trial Court would scrutinize the available proceedings and documents, consider the evidence adduced. It would do well to frame the “points for determination” and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the Court shall not admit evidence, the admissibility of which is excluded by law. It should also not permit its decision being influenced by irrelevant or inadmissible evidence.

Now, the defendant is not left helpless by the law in case he abstains from appearing before the court. The defendant has the following remedies in such case:

  1. he may appeal from the ex parte decree under Sec. 96 of CPC;
  2. he may apply for a review of the judgment under O. 47, R. 1 and
  3. he may apply under Rule 13 for an order to set aside the ex parte decree, provided the application is made within 30 days from the date of the decree.

References

  1. Mulla, The Code of Civil Procedure, 18th 2017.
  2. P. Jain, The Code of Civil Procedure and Limitation Act, 5th ed. 2020.

[1] Gh Qadir Dar v Punjab National Bank, AIR 2012 J&K 35 .

[2] AIR 1972 J&K 19.

[3] Rajeshwari Prasad Singh v Shashi Bhushan Prasad Singh, AIR 1996 SC 181.

[4] , AIR 1981 P&H 228.

[5] Pirthi Nath v. Niranjan Lal, AIR 1940 All 250.

[6] Purabii Dasgupta (Sarkar) v. Arun Kumar Dey, AIR 2010 Gau 66.

[7] Nahar Enterprises v Hyderabad Allwyn Ltd, (2007) 9 SCC 466 (468).

[8] Arjun Singh v Mohindra Kumar, AIR 1964 SC 993.


Civil Procedure Code – Notes, Case Laws And Study Material

Author: Ashish Agarwal

Advocate | School of Law, Christ University Alumnus

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