Name: Pratham Pratap Mohanty

Roll no.: 1806

Semester: III
Subject: CPC
Answer 1:
Order IX of the CPC, 1908, elaborates on a situation when a parties fails to appear before the
court on the date of hearing. According to Rule 6(1), Order IX, there are three consequences
and conditions where the defendant does not appear on the hearing.
a) According to Rule 6(a), if it is duly proven that the summons was served to the
defendant but the defendant failed to appear for the hearing then the Court may issue
an order for the suit to be heard ex parte.
b) According to Rule 6(b), if it is not proven that the summons was duly served then the
Court may direct for a second summons to be issued for the defendant.
c) According to Rule 6(c), if it is proved before the Court that the summons was served
duly to the defendant but not in time as to enable him to have sufficient time to appear
before the court, then the Court shall postpone the hearing to a future date and give
notice of this change to the defendant.
However, as per Rule 6(2) of Order IX, if the non-appearance of the defendant is due to some
fault of the plaintiff such as the summons were not served in a manner as to give the
defendant sufficient time to arrange for his appearance, then the court shall order the plaintiff
to pay the costs accrued due to the postponement. Additionally, rule & of the same order
further says that if the defendant appears on the subsequent hearing and gives good cause for
his non-appearance at the previous hearing then the Court may hear his side of the suit as if
he had appeared on the previous hearing, upon terms directed by the court as to costs or
otherwise.
In the situation of an ex parte decree, the Court, as per Rule 13 of Order IX can set aside the
decree against the defendant if he applies to the Court against that ex parte decree and
satisfies the Court that the summons was not duly served to him or that there was some other
just reason that prevented him from appearing in the Court for the hearing. If he successfully
proves that then the court may set aside the ex parte decree against him and appoint a day for
proceeding with the same. In case of multiple defendants, if the decree cannot be set aside
partially for one particular defendant that proves sufficient cause for non-appearance, then the
entire decree will be set aside
It is important to note that in the case of Amrit Nath v. Roy Dhunput, the court iterated that
the mere absence of the defendant does not of itself justify the presumption that the plaintiff’s
case is true.
Additionally, in the case of Gwalior Municipality v. Motilal, it was held that if
notwithstanding the plaintiff failing to prove his case, a decree is passed, the defendant is ex
debito justitiae to have such a decree set aside. The court has no jurisdiction to pass an ex
parte decree without any evidence being given by or on behalf of the plaintiff. The court has
no power to pass an ex parte decree before the returnable date mentioned in the summons.
Further in the case of Ramesh Chand Arda Watiya v. Anil Panjwani, the Supreme Court held
that even when the court proceeds ex parte, the necessity of the plaintiff proving his case is
not lost. Further, in the absence of denial of plaint averments, the burden of proof on the
plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of
act ion would suffice and the Court would grant the plaintiff such relief as to which he may in
law be found entitled.
Answer 2:
The duty of framing issues or settlement on what issues are to be addressed by the court,
during a suit is the primary and important role of the Court. In Board of Trustees of the Port
of Mormugao Vs. V.M. Salgaokar & Brothers it has been laid down that the Judge, who
presides the suit, must apply his mind and logic and understand the real facts behind the filing
of the suit by the plaintiff before deciding on the issues, and not directly proceed with the
issues submitted by the parties.
According to CPC, at the first hearing, the Court shall, after reading the plaint, written
statements, examination of the parties, as required, ascertain upon what material propositions
of fact and law the parties differ upon, and then shall proceed to frame and record issues on
which the right decision of the case appears to depend.
Provisions of Order 14, Rule 1(5), postulate that issues are to be framed at the first hearing of
the suit. Date for framing issues is thus date of hearing and not a formal date 1. Further, Rule
1(4) of Order 14 mentions that issues are of 2 broad categories; (i) issues of fact, and (ii)
issues of law. Issues however can be (iii) mixed issues of fact and law also.
But Rule 2 of Order 14 provides that where issues of both law and facts arise in the same suit,
unless the case is disposed of on a primary/preliminary issue, the Court should pronounce
judgment on all issues.
However, in the case of Ramesh B.Desai Vs. Bipin Vadilal Mehta2 and Major S.S Khanna V.
Brig. F.J.Dillon3, the Supreme Court has laid down that Order 14 Rule 2 of Civil Procedure
Code, 1908 confers no jurisdiction on a Court to decide the mixed questions of fact and law
as a preliminary issue. In this ruling, it was held that Sub-rule (2) of Order XIV Rule 2 CPC
lays down that where issues both of law and of fact arise in the same suit, and the Court is of
opinion that the case or any part thereof may be disposed of on an issue of law only, it may
try that issue first if that issue relates to (a) the jurisdiction of the Court, or (b) a bar to the suit
created by any law for the time being in force.
The Court has the power to frame issues from all or any of the following materials/ways:
(a) allegations made on oath by the parties, (b) allegations made by any persons present on
their behalf, or (c) statements made by pleaders appearing for the parties; Allegations made in
the pleadings or in answer to interrogations; and Documents produced by the parties.
This means that apart from those mentioned in the plaint or written statements alone, issues
can also be formed by the Court during first hearing through interrogations or even through

1
1991 CLC 1766
2
(2006) 5 SCC 638
3
AIR 1964 SC 497
presentation of documents by the parties to the suit and the court should not frame an issue
which does not arise in the pleadings4.

Additionally, Order 14 Rule 5 of C.P.C empowers the court to amend, and strike out, issues.
The court can insert new issues if any new things are discovered by evidences or witness or
any other source permissible in court. An important case in this context is of K.Periyasamy
vs Selvakumar, where the court held that if any issues are deems to wrong or false or
irrelevant to the case, then it can strike out if it deems fit by court. Also, under Order 6 Rule
17 the plaintiff is allowed to amend his pleadings at any time, therefore under Order 14 Rue
5, the court as well should have power to amend, strike out, or add new issues at any
time/stage of suit.

4
Goppulal v. Dwarkadeshjii, AIR 1969 SC 1291