CODE OF CIVIL

PROCEDURE, 1908
APPEARANCE AND NON-
APPEARANCE
 APPEARANCE AND NON-
APPEARENCE
 Order IX of the Code enacts the law with regard to the appearance of the parties to the
suit and the consequences of their non-appearance.
 It also provides a remedy for setting aside an order of dismissal of the suit as also the
setting aside of an ex-parte decree passed against the defendant.
 Rules 1 and 12
 Rule 1 requires the parties to the suit to attend the court in person or by their
pleaders on the day fixed in the summons for the defendant to appear.
 Rule 12 provides that where a plaintiff or a defendant, who has been ordered to appear in
person, does not appear in person or show sufficient cause for non - appearance, the court
may dismiss the suit, if he is the plaintiff, or proceed ex- parte if he is the
defendant.

 Rule 3 (Non –appearance of both parties) and Rule 4 (Court’s powers to restore
or try the subsequent suit)
 When both parties doesn’t appear, order of dismissal is passed – The order is not res
judicata (In case of dismissal under R. 2 and R. 3) – Also an application to set aside the suit
may be entertained – And the Court may after recording reasons, set aside the order of
 APPEARANCE AND NON-
 Order IX APPEARENCE
 Rules 6 and 10 – Only Plaintiff appearing
 Where the plaintiff appears and the defendant does not appear, the plaintiff has to prove
service of summons on the defendant (Rule 2).(If not, order of dismissal may be
passed, but if defendant appears then plaintiff is absolved)
 If the service of summons is proved, the court may proceed ex-parte against the
defendant and may pass a decree in favour of the plaintiff, if the plaintiff proves his
case.
 This provision, however, is confined to first hearing and does not per se apply to subsequent
hearings.
 Absence of defendant does not absolve the court from its duty to do justice. It is bound to
ensure that the averments in the plaint stand proved and the prayers are worthy of being
granted.
 Where there are two or more plaintiffs and one or more of them appear and the others do
not appear, the court may permit the suit to proceed as if all the plaintiffs had appeared, or
make such order as it thinks fit.
 APPEARANCE AND NON-
 Order IX
APPEARENCE
 Rules 7 to 11 – Only Defendant appearing
 Where the defendant appears and the plaintiff does not appear, and the defendant does not
admit the plaintiff's claim, wholly or partly, the court shall pass an order dismissing the suit."
 But Rule 8 enacts that if the defendant admits the plaintiff's claim as a whole or a part
thereof, the court will pass a decree against the defendant upon such admission and
dismiss the suit for the rest of the claim. Rule 8 operate as res judicata for the claim-in-part
and apply for setting aside the order of dismissal for the rest of the claim.
 It may be noted that this rule (Rule 8) will apply to a case where there is only one plaintiff and
he does not remain present, or there are two or more plaintiffs and all of them remain absent.
 Where there are more plaintiffs than one, and one or more of them appear, Rule 10 will apply
(as if all the plaintiffs have appeared.)
 Rule 11 - Where there are two or more defendants and one or more of them appear and the
others do not appear, the suit will proceed and at the time of pronouncement of the judgment,
the court may make such order as to the absent defendants as it thinks fit.
 In such a case, a decree may be contested as one against some of the defendants and ex-
parte against the rest.
 APPEARANCE AND NON-
 Order IX
APPEARENCE
 Rules 2 and 5 - Summons not properly served.
 It is a fundamental rule of the law of procedure that a party must have a fair and reasonable
opportunity to represent his case. And for that purpose, he must have a notice of the legal
proceedings initiated against him. The service of summons on the defendant is, therefore, a
condition precedent to a fair trial.
 If the summons is not served on the defendant or it does not give him sufficient time to
represent his case effectively, no decree can be passed against him.
 Rule 2 - Suit may be dismissed where the summons is not served on the plaintiff's failure to
pay costs for service of summons to defendant or to present copies of the plaint
 Rule 5 - Where the plaintiff fails to apply for a fresh summons for seven days after the
summons on the defendant or one of the defendants (where there are two or more defendants)
is returned unserved, the court will dismiss the suit as against the defendant or such
defendants.
 But if within that period, the plaintiff satisfies the court that (i) he has failed, in spite of his best
efforts to discover the residence of the defendant who has not been served; or (ii) such
defendant is avoiding service of process; or (ii) there is any other sufficient cause for extension
of time, the court may extend the time for such period as it thinks fit.
 If the suit of the plaintiff is dismissed by the court within the period of limitation, he can file a
 APPEARANCE AND NON-
 Ex parte Decree APPEARENCE
 An ex parte decree is a decree passed in the absence of the defendant.
 Such a decree is neither null and void nor inoperative but is merely voidable and unless and
until it is annulled on legal and valid grounds, it is proper, lawful, operative and enforceable
like a bi parte decree and it has all the force of a valid decree
 Remedies
 The defendant, against whom an ex parte decree has been passed, has the following
remedies available to him:
 (1) Order IX Rule 13 : to apply to the court by which such decree is passed to set it aside;
 (2) Section 96(2) : to prefer an appeal against such decree:(or to file a revision under
Section 115 where no appeal lies);
 (3) Order XLVII Rule 1: to apply for review;
 (4) to file a suit on the ground of fraud.
 The above remedies are concurrent and they can be prosecuted simultaneously or
concurrently. "Where two proceedings or two remedies are provided by a statute, one of
them must not be taken as operating in derogation of the other."
 APPEARANCE AND NON-
 Ex parte Decree APPEARENCE
 Order IX Rule 13 : to apply to the court by which such decree is passed to set it aside;

 The defendant (or any aggrieved party adversely affected) against whom ex parte decree has been
passed may apply for setting it aside.
 Time period : 30 (Thirty) days from the date of the decree

 An application for setting aside ex parte decree may be made to the court which passed the
decree. Where such decree is confirmed, reversed or modified by a superior court, an application
may be filed in the superior Court.
 Notice needs to be sent to the opposite party regarding the application to set aside ex-parte
decree.
 Grounds to set aside

 If the defendant satisfies the court that (i) the summons was not duly served; or (ii) he was
prevented by any sufficient cause from appearing when the suit was called out for
hearing, the court will set aside the decree passed against him and appoint a day for proceeding
with the suit.
 Sufficient Cause - A party should not be deprived of hearing unless there has been something
equivalent to misconduct or gross negligence on his part - Necessary materials should be placed on
record to show that the applicant was diligent and vigilant – Depends on facts and circumstances of
the case - delaying tactics and non-cooperation on the part of the party are bad on face value –
 APPEARANCE AND NON-
 Ex parte Decree APPEARENCE
 Order IX Rule 13 : to apply to the court by which such decree is passed to set it aside;
 The test which should be applied is whether the defendant honestly and sincerely intended
to remain present when the suit was called on for hearing and did his best to do so. If the
reply is in the affirmative, ex parte decree should be set aside but if it is in the negative, ex
parte decree cannot be recalled.
 Sufficient causes : Illustrations
 Bona fide mistake as to the date of hearing; late arrival of a train; sickness of counsel; fraud
of the opposite party; mistake of pleader in noting wrong date in diary; negligence of next
friend or guardian in case of minor plaintiff or defendant; death of relative of a party;
imprisonment of party; strike of advocates; no instructions pursis by a lawyer, etc.
 Not sufficient causes: Illustrations
 Bald statement of noting wrong date in diary; dilatory tactics; negligence of party; counsel
busy in another Court; absence to get undue advantage; mere thought that the case will
not be called etc.
 There is no inherent power to set aside the decree ex parte other than Order IX Rule 13.
 APPEARANCE AND NON-
 Ex parte Decree APPEARENCE
 Order IX Rule 13 : to apply to the court by which such decree is passed to set it aside;
 Extent of setting aside ex parte decree
 As a general rule, the court will set aside the decree only against such defendant or
defendants who had made an application.
 In a suit by A against B, C and D, ex parte decree was passed. Cand D were not served with
summonses while B was served. In an application by C and D, it was held that the decree
against B cannot be set aside.
 Exceptions
 (i) Where the decree is joint and indivisible
 A, B and C are coparceners of joint Hindu family. They jointly execute a mortgage in favour
of X. X files a suit against all of them. Summons is served to C but not to A and B. None of
them appears and an ex parte decree is passed against all. A and B apply to set aside the
ex parte decree. Here the decree being one and indivisible, it ought to be set aside against
C also.
 APPEARANCE AND NON-
APPEARENCE
 (ii) Where the suit would result in two inconsistent decrees if the decree were not set aside
against the other defendants also.
 X sues A and B, joint executors of a promissory note, for the recovery of amount due
thereunder. As a matter of fact, B has paid the amount due to X. Summons is served to A
alone. None of them appears and an ex parte decree is passed against both. B applies to
set aside the decree. The decree must be set aside against A also. The reason is that if B
succeeds in proving the payment, there will be two inconsistent decrees.
 (iii) Where the relief to which the applicant is entitled cannot effectively be given otherwise
than by setting aside the decree against the other defendants also.
 A files a suit against B, C and D on a mortgage bond and gets an ex parte decree against all
of them. B alone applies to set it aside. Neither in the mortgage bond nor in the plaint nor in
the decree there is any specification of shares and liabilities of the respective defendants.
The decree must be set aside as a whole.
 (iv) Where the decree proceeds on a ground common to all the defendants.
 A sues B and C on a promissory note. B is the principal debtor and C is the surety. An ex
parte decree is passed against both. B alone applies to set aside the decree and shows
sufficient cause for his absence. The decree must be set aside against C also inasmuch as
the liability of both is based on a common ground.
END OF SESSION