Basic Introduction & History

The concept of rule of law entails that not only must the law be applied to its logical conclusion in every possible case, but also that substantive justice must be done in every possible case. Thus while the law itself is divided into two separate branches, being substantive law & procedural law, the ends of the two stands of law are fundamentally different.

While the end of substantive law is to lay down the right and liabilities of parties, and the end of procedural law is to ensure effective access to the substantive law. Thus, while the laws of procedure are very important, in that the lack of these laws would result, in the denial of access to the rights derived from substantive laws, the laws of procedure are also in some ways subservient to the substantive laws. Furthermore, it is clear from this very rudimentary understanding itself that the laws of procedure being facilitative must be used in that role alone and must not be propelled to a position where the stick application of the laws of procedure in fact being determined rather than facilitative of the process of determining and achieving legally guaranteed rights.[1]

“We must always remember that procedural law is not to be a tyranny but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescription are the handmaiden and not the mistress, a lubricant and not a resistant in the administration of justice, after all the courts are to do justice and to wreck this end product of technicalities”[2]

Thus the logical question that arises and that must be answered is not as to the role of the code of Civil Procedure, but as to whether the code is actually framed in such a way as to achieve that desired end.

The researcher seeks to demonstrate in the course of this project, through a detailed study of the process through which the CPC works, that at each stage, this code is designed in such a manner as to ensure that the end product of the application of the code is the achievement of substantive justice. Furthermore, the paper will also show, that the judiciary has further interpreted the various provisions of its application makes it impossible for the researcher to undertake a detailed study of the code, but the paper will certainly look at a vast array of illustration to demonstrate the conclusion reasonably convincingly.

History:-

Before 1859, there was no uniform Code of Civil Procedure. There were different system of civil procedure on different parts of the country. The first uniform Code of Civil Procedure was enacted in 1859. But that code was also not made applicable to the Supreme courts in the Presidency Towns and to the Presidency Small Cause Courts. Some amendments were made therein and the code was applied to the whole British India, but there were many defects in it, and therefore, a new code was enacted in 1877. Again, another code was enacted in 1882, which was also amended from time to time.

In 1908, the present Code of Civil Procedure was enacted. It was amended by two important Amendment Acts of 1951 and 1956. On the whole, this code worked satisfactorily, though there were some defects in it. The Law Commission in its various reports made many recommendations, and after carefully considering them, the government decided to bring forward the bill for the amendment of the Code, keeping in view, inter alia, the following consideration:-

• A litigant should get fair trial in accordance with the accepted principal of natural justice.
• Every effort should be made to expedite the disposal of civil suits and proceedings, so that justice may not be delayed.
• The procedure should not be complicated, and should, to the utmost extent possible, ensure a fair deal to the poorer sections of the community who do not have the means to engage a pleader to defend their case.
• The doctrine of res judicata is being made more effective.

The object of the code is to unite and amend the laws connecting to the procedure of courts of Civil Judicature. It is consolidated code collecting all the laws relating to the procedure to be adopted by the civil courts. It is designed to facilitate justice and further its ends and is not a penal enactment for punishment and penalties, not a thing designed to trip up people. Too technical a construction of section which leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against, provided that justice is done to both sides. The provision of Code, therefore, should be constructed liberally and technically objections should not allowed to defeat substantial justice.

As the Supreme Court Stated, “A procedural law is always in aid of justice, not in contradiction or to defeat the very object which is sought to be achieved. A procedural law is always subservient to the substantive law. Nothing can be given by a procedural law what is not sought to be given by a substantive law and nonentity can be taken away by the procedural law what is given by the substantive law[3].

The Provisions of Appearance and Non-Appearance of the parties are very well explained under Order 9 of the Code of Civil Procedure. Here under the Order 9 various provisions are been disused relating to the issue of Appearance and Non-Appearance of parties. Under this particular Order there are 14 Rules are laid down relating to the Appearance and Consequences of Non-Appearance.

Scope of Order 9:-

Order 9 lays down the rules of procedure applicable to various situations concerned with the appearance of parties, namely, cases where both parties attend; where the summons has not been served in consequence of the plaintiffs failure to pay the fees for serving; when neither party appears; when the plaintiff only appears; and when the defendant only appears. Failure to appear attracts certain consequences. Broadly speaking, from the point of view of the plaintiff, the most important is the provision which makes dismissal of the suit for default of the plaintiff mandatory; and, from the context of the defendant, the most important is the provision authorizing the court to proceed ex parte, if the defendant does not appear. If the defendant does not file a written statement, certain action can be taken against him under rule, a rule which appears to have caused a considerable amount of uncertainty, owing to it’s a somewhat ambiguous wording. Since non-appearance of a party may be involuntary or for sufficient cause, there have to be provisions for setting aside dismissal of the suit or ex parte order, as the case may be.

Concept of Appearance :-

In legal terms, appearance refers to the act of a party or an attorney showing up in court. If a lawyer makes a notice of appearance or representation, or actually appears, indicates that he represents a person, the lawyer can appear on behalf of the client in some matters even without the client being present. A lawyer makes a special appearance if he appears in court that day only for that purpose, such as sentencing a person accused of a crime. When a lawyer appears “in public” he tells the court that the client is definitely him and the court can proceed. From now on, the lawyer in question must represent the client.

Some appearances are voluntary, but most are mandatory and the party or, if represented, their attorney will be notified. The rules governing filing formalities are regulated by state, federal courts, local court procedures, and the whims of certain judges.

Concept of Non-appearance :-

Non appearance is a state of not being present. Legally the term non appearance denotes failure to appear in a court. It can be the non appearance of a defendant in an action brought by plaintiff or the failure of a witness or party to appear to answer a subpoena or notice. Generally, courts will fix a date for the appearance of the parties. The parties must appear in person or through pleaders on the fixed date. In the event of non appearance the court can pass an award in favor of the attending party. However, the court will provide an opportunity to the absent party through a non appearance hearing.

Appearance of Parties:-

The Appearance of parties is been discussed under the Order 9 Rule 1 which says that “On a the day fixed in the summons for the defendant to appear and answer, the parties shall be present at the Court-House in person or by their pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the court”. This is to be ensure through the summons for the disposal of suit issued in form No.1 of the appendix ‘B’ of the code[4].

A defendant is expected to act as a prudent person. If the date on which a suit was fixed for final disposal comes to be declared to be a holiday, he or his authorized representative like his counsel is expected to find out as to what happened to the case. To that extent, the obligation would be upon him, as it were, to chase the case. But would that obligation carry with it the risk that on the working day next following the date declared a holiday, the case would be disposed of on merits in his absence. Extending the obligation of a party to this extent would impinge upon the rule of audi alteram partem[5]. Parties can be said to have no notice that the case would be taken up and disposed of on merits even in their absence on a date other than the one fixed for the disposal of the suit. The court, in such cases, would have to post the case for disposal on another date unless, of course, both the parties are present and want it to be disposal of on that date itself.

Date of appearance before the court is the date of first hearing unless adjournment without any business. Therefore, what this rule contemplates is that the date for appearance given in the summons served on the defendants is the date fixed for the hearing of the case but the hearing may be adjourned from time to time. There can be no doubt that there was such a date fixed in the summons as it appears from the order.[6]

The appearance, unless specifically directed to be in person, the party has a right to put in same through his counsel. Provided under this code, privilege is given to both the party that they may appear not in party but through there counsel as per the day fixed by the court. But this privilege is not always enjoy by the part, they need to appear before the court when the court want to take evidence from them. Till then the counsel may continue to act on behalf of the party.[7]

Dismissal of Suit

The dismissal of suit due to the failure of plaintiff is been discussed under Order 9 Rule 2, which says that “Where on the day fixed it is found that the summons has not been served upon the defendant in consequence of the disappointment of the plaintiff to pay the court-fee or postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by Rule 9 of Order VII, the court may make an Order that the suit be dismissed.

1) Dismissal of suit for failure to file process fee :- Order 9 Rule 2, Code of Civil Procedure, permits the court to dismiss a suit for default in paying process-fee for service of summons. But this power of dismissal should be exercised only in cases where courts finds persistent and gross negligence.

2) Dismissal of suit for non-filing documents :- For non-compliance of order of production of document by the plaintiff his suit cannot be dismissed. Application under Order 9 Rule 9 for setting aside dismissal was therefore maintainable.

3) Where neither party appears :- under Order 9 Rule 3 of Code of Civil Procedure, it says, where neither party appears when the suit is called on for hearing, the court may make an order that the suit be dismissed

4) Dismissal of suit if summons returns un-served, plaintiff fails to apply for fresh summons:-

The Order 9 Rule 5 (1) Provides that “Where, after a summons has been issued to the defendant, and returned un-served, the plaintiff fails, for a period of seven days from the date of the return made to the court by the officer ordinarily certifying to the court returns made by serving officers, to apply for this issue  of a fresh summons the court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the court that: (a) he has filed after using his best endeavors to discover the residence of the defendant, who has not been served, or (b) such defendant is avoiding service of process, or (c) there is any other sufficient cause for existing the time, in which case the court may extend the time for making such application for such period as it think fit.

There is nothing in the Code that once the suit is dismissed by the court cannot again be entertained by the court. The plaintiff has the right to restore the suit or may bring a fresh suit in the same court regarding the dismissal of further suit.  The next provision says about the restoration of the suit, when and how the plaintiff may restore the suit if the court had dismiss the suit under Order 9 Rule 2 or Rule 3.

Restoration of Suit :-

Plaintiff may bring fresh suit or may restore suit to file under Order 9 Rule 4 of the Code of Civil Procedure, which say that, “Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may(subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for such failure as is referred to in Rule 2, or for his non-appearance, as the case may be, the court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit”.

Under Order 9 Rule 4 the plaintiff may bring a fresh suit or the court may restore the suit to file and in restoring the suit to file the court must be satisfied that there was sufficient cause for non-appearance of the plaintiff. Both the remedies, namely, fresh suit and prayer for restoration are open to plaintiff at the same time. If he chooses one remedy he is not debarred from availing himself of the order remedy[8].

There is no provision in Order 9, Rule 4 for any term as to costs which could be imposed by the court while restoring a suit and setting aside a dismissal under Order9, Rule 4[9]. The Patna High Court view it seems is not correct, the power of the court to impose cost under section 35[10] of the code cannot be taken away, even in case of restoration of suit, dismissed under this rule.

The limitation for moving application under this rule is 30 days from the date of dismissal of as provided in Article 122 of limitation act[11]. However, the court must be satisfied that ground for not taking steps or for non-appearance as the case maybe, is sufficient.

No need to issue Notices. :-

There is no need to issue notice to opposite parties on the application for restoration moved under Rule 4. Also, if the court decides in its discretion to issue notices to the defendant before the disposal of the application it is well within its jurisdiction to do so. But if the defendant wants to contest the application he cannot be debarred. After the restoration of the suit defendant must be given notice of the date fixed in suit. Failure to issue notice after restoration would practically amount to passing a decree against a party without giving him any opportunity of hearing which is against all canons of justice and equity.[12] The order passed under Rule 4 is not appealable order.

Procedure where only Plaintiff appears :-

Order 9 Rule 6(1), which say that:- “Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then; (a) When summons duly Served:- if it is proved that the summons was duly served, the court may make over an order that the suit be heard Ex Parte, (b) When summons not duly served:- if it is not proved that the summons was duly served, the court shall direct a second summons to be issued and served on the defendant; (c) When summons served but not in due time:- if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in summons.

Procedure where defendant appears on day adjourned hearing and gives good cause for his previous non-appearance :-

Under Order 9 Rule 7, it says that, “Where the court adjourned the hearing of the suit ex Part, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such term as the court directs as to costs or otherwise, be heard in answer to the suit as if he has appeared on the day fixed for his appearance”.

Rule 7 of Order 9 provides that if at ‘an adjourned hearing’, where the court has, for non-appearance of a defendant, adjourned the hearing or the suit proceeded ex parte against him, the defendant appears and assigns good cause for his ‘previous non-appearance’ he can be heard in answer to the suit, as if he had appeared on the day fixed for his appearance, ‘upon such term as the court directs as to costs or otherwise’. A defendant may satisfy the court that his non-appearance was not intentional nor was it calculated to impede the proper progress of the suit and may secure an opportunity of contesting the claim of the plaintiff on merits[13].

There is no compulsion on the court to fix a separate date for ex parte hearing, in case the defendant happens to be absent without cause on the date already fixed for hearing of the suit. No doubt, the court can give another chance to the defendant and to put the suit up specifically for an ex parte hearing, when Order 9 Rule 7 will come into operation. But this at the discretion of the court and not a matter of compulsion.[14]

An application under this rule could be filed when an Order posting a suit for ex parte hearing was passed. It would cover the case of a defendant who did not appear at all on the first hearing date and the suit was adjourned after declaring him ex parte without filing written statement as also a defendant who absented after filing written statement. Where hearing of the suit was complete and the court had adjourned a suit for pronouncing the judgment, an application under Order 9, Rule 7 would not be maintainable[15]. Where the defendant has been proceeded ex parte without filing written statement, he cannot put in a written statement unless he is allowed to do so, and if the case is one in which the court considers a written statement should have been put in, the consequence, entailed by Order 8 Rule 10 must be suffered[16]. However, the court in fit cases, may also allow filing of written statement, after the defendant has been proceeded ex parte.

On an adjournment hearing, in spite of the court having proceeded ex parte earlier the defendant is entitled to appear and participate in the subsequent proceeding as of right. An application under Rule 7 is required to be made only if defendant wishes the proceedings to be  relegated back and re-open the proceedings from the date wherefrom they become ex parte so as to convert the ex parte hearing into ex parte. While power of putting the defendant on terms under Rule 7 the court cannot pass an order which would have the effect of placing the defendant in a situation worse off than what he would have been if he had not applied under Rule 7. So also the conditions for taking benefit of order should not be such as would have effected of decreeing the suit itself. Similarly, the court may not in the grab of exercising power of placing upon terms make an order which probably the court may not have made in the suit itself[17].

The effect of allowing under this rule is that the order setting ex parte is recalled, and thee court ‘sets the clock back’ and have the suit heard in the presence of defendant. On the other hand, in the event of defendant failing to show good cause, he is not penalized in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trail, only he cannot claim to be relegated to the position that he occupied at the commencement of the trail.

After an enquiry on an application under Order 9 Rule 13, Code of Civil Procedure, if the court finds that there was sufficient cause for non-appearance of the date when the case first proceeded ex parte, the ex parte decree can be still set aside notwithstanding the fact that the application under Order 9 Rule 7, has been dismissed and the whole proceeding can be reopened so as to enable the petitioners to file the written statement to lead evidence in support of the case and to cross examine the plaintiffs witnesses.

This court has the power under the act itself to review or recall the order in the interest of justice. The provision of Code of Civil Procedure are also applicable and such proceedings have to be regulated as far as possible under the provisions of Code of Civil Procedure. Once it is held that the provisions of Code are applicable, then this court besides invoking the provisions of Order 9 Rule 7, would also have inherent power to do justice by reviewing or recalling the impugned order if the circumstances so warrants. The only thing which has to be seen is that the applicant could not appear and that hi non-appearance was bona fide or for sufficient cause[18].

A finding as to non-existence of good cause by trail court, even if erroneous cannot be interfered with in revision. The period of limitation for moving application under Rule 7 is not 30 days, instead it is covered under Art. 137[19] of limitation act, 1963.

Procedure where Defendant only appears :-

Order 9 Rule 8, of Code of Civil Procedure laid downs that, “where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it related to the remainder”[20].

The dismissal of the suit under Rule 8 does not operate as “res judicata[21]”. It only imposes a disability on plaintiff. This rule is based in sound public policy. The principal underlying this provisions is that a litigant who comes to court with a cause should agitate the matter with due diligence and take a decision on merits, so that a finality is reached. Otherwise, there would not be any finality, and the opposite party could be harassed endlessly, by allowing the proceeding to be dismissed for non-prosecution and re-agitate the matter time and again at his convenience and leisure. Then this judicial process would become an instrument of oppression rather than a means to resolve dispute in a civilized way. Therefore, it is a rule of estoppels, which finds a statutory recognition in Order 9 Rule 8, which prevents the party from filing a suit on the same cause of action, if the earlier suit is dismissed for non-appearance[22].

Difference between Rule 3 and Rule 8 :-

The basic difference in Rule 3 and Rule 8 is that whereas, a suit can be dismissed under Rule 3 when neither the plaintiff nor the defendant appears when the suit is called for hearing, it is to be dismissed under Rule 8 when only plaintiff is absent whereas, the defendant is present at the time when the suit is called for hearing. Similarly, there is some basic difference between the provisions of Rule 4 and Rule 9 which are the two provisions for restoration[23].

 Decree against Plaintiff by default bars fresh suit :-

Order 9 Rule 9 provides that, “where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set dismissal aside, and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit”.

Broadly speaking the provisions of Order 9 Rule 9 has two limbs, the first limbs gives a right to the plaintiff, whose suit has been dismissed to make the application for restoration of the suit. In doing so it is an obligation on his part to satisfy the court that there was sufficient cause for his non-appearance in the court when the suit was called on for hearing. Once he can satisfy the court, he is entitled to an order setting aside the dismissal but upon such terms as to cost or otherwise as the court might think fit to impose upon him depending upon the facts and circumstance of each case. The second limb provides for the power given to court to make the conditional order setting aside the dismissal when the court is satisfied that sufficient cause has been made out for the non-appearance of the plaintiff, in making such an order the court has been vest with the discretion to decide what costs, if any, which would be imposed as a term to set aside such dismissal. Only this part of order is discretionary. Otherwise when the court is satisfied about sufficient cause being made out for his non-appearance the court is bound to make the order for setting aside the dismissal and shall appoint a day for proceeding with the suit[24].

This rule also precludes the plaintiff from filing a fresh suit on the same cause of action where there is an order of dismissal under Rule 8 of Order 9. But the plaintiff may apply for an order to set aside the order of dismissal of suit, provided he is able to satisfy the court that there was sufficient cause for his non-appearance when the suit was called out for hearing. However, where a suit is dismissed under Order 11, Rule 12, because of the plaintiff’s failure to comply with an order passed under Order 11 Rule 12, it cannot be restored by means of an application under Order 9 rule 9 of the Code.

Courts shall exercise inherent power to do a complete justice between the parties when the matter was not presumably covered by Order 9 Rule 9. To be a little bit elaborate that the courts were not powerless to exercise the jurisdiction in absence of specific provision, the object being to meet the necessities of the case. It is right saying that the inherent power has its roots in necessary and its breath is coextensive with necessity. It is not a new concept of law but an old concept which never lost its force since there are decisions in legion[25].

Difference between Rule 4 and Rule 9 :-

The court can dismiss the suit if the plaintiff fails to pay costs in getting the summons served, and when the both the parties are absent, the court has every discretion to dismiss the suit, and similarly when plaintiff is absent and the defendant only appears in the court in a suit, the court may dismiss the suit and pass a decree against the plaintiff in which event the plaintiff cannot maintain a second suit. Of course, the said provision of law also estate that if the defendant admits a part of the suit claim though the plaintiff is absent, the court may direct the defendant to pay the admitted amount and decree the suit in part in spite of the fact that the plaintiff is absent.

There is a clear distinction between Rule 4 and Rule 9 of Order 9 of the Code. Because there are lapses on the part of defendant also in not appearing before the court along with the plaintiff, the legislature thought it to provide provision for maintaining a second suit by the plaintiff. If the lapse is not only on the part of plaintiff but also on part of defendant, then only, the plaintiff can maintain a second suit. That is purport of Order 9 Rule 4, but when it comes to Order 9 Rule 9, the position is different. The plaintiff is the one, who is making the defendant to come to the court, and if the plaintiff is absent and the defendant is present, and no sufficient cause is shown the court need not wait and may pass the decree against the plaintiff and when such a decree is passed it is not open for the plaintiff to file a second suit. In such cases the only course left open to the plaintiff is to file an application to set aside the order of dismissal of contemplated under the provision of law[26].   

Setting aside ex parte Decree:-

The Order 9 Rule 13 provides that, ‘In any case in which a decree is passed ex parte against a defendant, he may apply to court by which the decree was passed for an order to set it aside; and if he satisfies court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing  when the suit is called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it think fit, and shall appoint a day for proceeding the suit’.

The defendant against whom ex parte decree has been passed may apply for setting aside. Where there are two or more defendant, any one or more of them may also make such application. The expression ‘defendant’ is wide enough to include a person who is adversely affected by the decree. A purchaser of mortgaged property, hence, may make an application under Order 9 Rule 13 of the code. But a defendant against whom the suit has been dismissed cannot be said to be ‘aggrieved’ by the decree and cannot apply under this rule.

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 a superior court.

This rule requires an application by defendant to set aside an ex parte decree passed against him if there exists sufficient grounds for it. If any defendant satisfies the court that (1) the summons was not duly server; or (2) 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.

Summons duly served :- As provided in Rule 6, the suit may proceed ex parte  against the defendant only when it is proved by the plaintiff to the satisfaction of the court that the defendant did not appear even though the summons was duly served. In that case, an ex parte  decree may be passed against him. Therefore, if the defendant satisfies the court that the summons was not duly served upon him, the court must set aside the ex parte decree passed against him.

Sufficient cause :- The expression ‘sufficient cause’ has not been defined anywhere in the code. It is a question to be determined in the facts and circumstances of each case. The words ‘sufficient cause’ must be liberally constructed to enable the court to exercise power of ex debito justitiae[27]. 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. Improper advice of advocate may be a good ground to set aside ex parte decree but cannot be accepted as a sufficient cause in all cause.

Whether or not it was a sufficient cause would depend upon facts and circumstances of the cases. If there are delaying tactics and non-cooperation on the part of the party, he cannot seek indulgence of the court. Where the lower court declines to allow ex parte decree to be set aside, the supreme court will not interfere with such order. The test to be applied is whether the party honestly intended to remain present at the hearing of suit and did his best to do so.

When an application for setting aside ex parte decree is made by the defendant, the court should consider whether the defendant was prevented by ‘sufficient cause’ from appearing before the court when the suit was called out for hearing. If the court finds that there was sufficient cause for non-appearance, it is bound to be set aside the decree. Conversely, if sufficient cause is not shown, ex parte decree cannot be set aside. An order setting aside ex parte decree is judicial , it must be supported by reasons.

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.

The second proviso, lays down that the court shall not set aside an ex parte merely on the ground of irregularity in service of summons in a case where the defendant had adequate notice of the date of hearing of the suit, and had sufficient time to appear and answer the plaintiff’s claim. The code thus make distinction between illegality and irregularity. The former goes to the root of the matter and renders the action null and void. The latter, however, does not invalidate the action, unless prejudice has been caused to the person making a complaint. The word and in the second proviso to rule 13 must be read as conjunctive and not disjunctive. Hence, unless both the condition are satisfied, an ex parte decree cannot be set aside.

The burden of proof that there was sufficient cause or non-appearance is on the defendant. But, it is enough if he proves that he attempted to remain present when the suit was called on for hearing. There may be many proceedings in a court wherein his personal presence may not necessary.

An application for setting aside ex parte  decree can be made within thirty days from the date of the decree. An ex parte  decree cannot be set aside without issuing notice to the opposite party and without giving him an opportunity of hearing. This is in consonance with the principal of natural justice and fair play. An application under Rule 13 for setting aside ex parte decree may be made by the defendant. In case of death of defendant, his legal representative can also make such application. It should be signed and verified by the party and not by advocate.

The court has a very wide discretion in imposing such terms on the defendant as it think fit before setting aside the ex parte  decree. It may order the payment of costs, or may order the defendant even to deposit the decretal amount in the court in an application case. The discretion, however, must be exercised reasonably and judicially and not arbitrarily or capriciously. If the terms are onerous, or otherwise unreasonable, a superior court can interfere with them. When an ex parte decree is set aside on certain conditions and those conditions are not complied with within the time granted by the court, the application stands dismissed.

While setting aside ex parte decree, court has wide discretion to impose appropriate conditions on the defendant. The court has a very wide discretion in imposing such terms on the defendant as it thinks fit before setting aside the ex parte  decree. It may order the payment of costs, or may order the defendant even to deposit the decretal amount in the court in an appropriate case. The discretion, however, must be exercised reasonably and judicially and not arbitrarily or capriciously. If the terms are onerous or otherwise unreasonable, a superior court can interfere with them. When an ex parte decree is set aside on certain conditions and those conditions are not complied with within the time granted by the court, the application stands dismiss.

An appeal lies against an order rejecting an application to set aside ex parte  decree. As stated above, an ex parte decree is a decree under Section2(2) of the code and therefore, an aggrieved party can also file an appeal under Section 96(2) of the code. A controversial and somewhat complicated question of law is; whether in such cases, the appellate court can only consider the decree passed by the lower court on merits as to whether there were sufficient grounds to pass the decree or whether the appellate court can also consider whether there were sufficient reason for the defendant for non-appearance and the court was  not justified in passing an ex parte decree. 

 Judicial Pronouncement

After discussing on various issue above, its main issues where the court will give there decision as per the suit is. General in every suit the party appears and after the hearing is completed, the court will pronouns the judgment. After the hearing is completed the court may pronouns the judgment or may decree to the parties on application made by them on payment of specified charges, or the court may make the provision for the compensatory costs for false and venation claims or defenses and for causing delay.

This could be done in the regular where the both the parties appear and there is no issue relating to their appearance and non-appearance in the court at the day fixed. But what if the fail to appear in the court on a given day by the court ?, what  may be the order given by the court in this type of issue ? So if the parties appears on the fixed day of the court and attend the regular then the order would made as per the regular procedure only. But if the defendant not appears on the fixed day then the court  may gave the ex parte. And if the due to the fault of plaintiff, if the defendant fails to appear then the court will dismiss the suit.

The grounds on which the suit can be dismissed by court and on what grounds a court may pass the ex parte decree are been discussed as follow :-

Grounds For Dismissal of suit :-

There are certain reason on which a court may dismiss the suit which are been provided under the Code of Civil Procedure.

1) Plaintiff fails to pay cost :-

The dismissal of suit due to the failure of plaintiff is been discussed under Order 9 Rule 2, which says that “Where on the day fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by Rule 9 of Order VII, the court may make an Order that the suit be dismissed. Provided that no such order shall be made, if notwithstanding such failure, the Defendant attends in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and answer.

This Rule shows that the court is expressly authorized to dismiss the suit where on the date fixed in the summons it is found that the same has not been served on the defendant in consequence of the failure of the plaintiff to pay the Court-fee or postal charges, or to present copies of the plaint. Rule 2 is a directive order. Since the provision is merely am enabling provision, the legislature has given discretion to the court by using the word “the court may make an order that the suit be dismissed”. It is not obligatory upon the court t dismiss the suit.

Where However, Plaintiff fails to take steps against some of the defendant, the suit should not be dismissed against all the defendant under this rule, but only against the defendant in respect of which process has not been filed, upon dismissal the suit can be restored under Rule 4 of this order if sufficient reason is shown on such terms as the court thinks fits.

2) Where neither party appears,

A court under Order 9 Rule 3 of the code of civil procedure,1908 may dismiss the suit if “neither party appears when the suit is called on for hearing, the court may make an order that the suit be dismissed”. In the case of Venutai v. Sadashiv[28],  Where the plaintiff and some of the defendant are absent, the dismissal of suit is covered under Rule 8 of this order as against the defendant who is present and under Rule 3 as against the absentee defendants. Where some of plaintiff are present Rule 3 does not apply. When all the parties are absent, and suit is dismissed under this rule, before restoring the suit under Rule 4 it is not necessary to issue notice to the defendant. Where there was no notice of the date fixed to the plaintiff or the defendant, instead of dismissing the suit under this rule, the case should be adjourned. The time when presence or absence is material is when the case is called out.

3) Dismissal of suit if summons returns un-served, plaintiff fails to apply for fresh summons:-

The Order 9 Rule 5 (1) Provides that “Where, after a summons has been issued to the defendant, or to one of several defendants, and returned un-served, the plaintiff fails, for a period of seven days from the date of the return made to the court by the officer ordinarily certifying to the court returns made by serving officers, to apply for this issue  of a fresh summons the court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the court that: (a) he has filed after using his best endeavors to discover the residence of the defendant, who has not been served, or (b) such defendant is avoiding service of process, or (c) there is any other sufficient cause for existing the time, in which case the court may extend the time for making such application for such period as it think fit.

In the famous case of  Electrical Industries Corporation v. Punjab National Bank[29], Order 9 Rule 5 (1) therefore, provides that when as summons is returned un-served, the plaintiff has to make an application within seven days from the date of the return for issue of a fresh summons. Alternatively, the plaintiff within the said period of seven days may apply to the court for extension of time for making an application for issues of a fresh summons on the grounds specified in the above order. If the plaintiff does not choose to adopt anyone of these courses, the court shall make an order that the suit be dismissed.

In the case of I.D.C. v. Phulpada seva[30], Under this provision it also specifies that from which time the summons should be issued. The time of seven months is to be calculated from the date last summons was returned un-served. Where the summons was not returned it may treated a case of summons being returned un-served from the date fixed in such summons. Where the court has fixed time less than such seven days for taking the steps which was not extended, court may exercise the power to dismiss the suit for Non-prosecution even before one month. Where the court did not dismiss the suit even after 30 days and permitted the plaintiff to take steps, it may be treated condonation of delay in taking the steps. Where the steps were taken only for some of the defendants, and suit is dismissed under Rule 5 as against those un-served, the suit can proceed against remaining defendants. The same was held in the case of Orissa Agro Industries v. Sarbeswar[31].

4) Dismissal if only Defendant appears :-

Order 9 Rule 8 of the Code enjoins the court that where the defendant appears, and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon shall dismiss the suit so far as it relates to the remainder.

A suit under this rule can be dismissed only where the defendant appears and the plaintiff does not appear when the suit is called for hearing. Before the order contemplated under order 9 Rule 8 is passed, the defendant must physically appear before the court, either personally or through counsel to enable the court to hear him before passing the order. The court held in the case of Una Co-operative Group Housing Society Ltd v. Ravindra Bothers[32],

 That it is necessary for the court to be satisfied that defendant has not admitted any part of the plaintiff’s claim which requirement is clearly projected in the language of Rule 8. The court cannot dismiss the suit in to merely to penalize the plaintiff for his absence. Rules of procedure are t be constructed as to advance and not to defeat, the remedy. Dismissal of a suit on merits in the absence of the plaintiff is not an option with the court under Order 9 Rule 8, unless the defendant has admitted either in whole or part of the claim made in the suit. The jurisdiction for dismissing the suit under this rule is confined to the first appearance required in terms of the summons which may have been issued to the defendant as contemplated by Order 5 Rule 1 of the Code.

Where the case is not fixed for hearing but for disposal of some application the suit cannot be dismissed without passing orders on such application. And the application should be disposed of and if as a consequences of such order is dismissal of suit that order too can be passed on same day. When the case is fixed for hearing which includes evidence, and plaintiff fails to turn up while defendant is present, suit shall be dismissed. However, if the defendant has conceded in written statement the whole or part of the amount claimed or the relief sought by the plaintiff, to the extent the suit would be decreed even if the plaintiff is absent. Where the plaintiff’s counsel appears but he says that he has no instruction and withdraws from the case, the suit can be dismissed in default of the plaintiff.

In the case of Jogi Sahu v. Collector[33], After the preliminary decree is passes, suit cannot be dismissed in default of plaintiff for his non-appearance and the court can consign the record after adjourning the case Sine die due to absence of the plaintiff it has become impossible to pass a decree. Similarly, land acquisition reference should not be dismissed for non-appearance of claimant but should be disposed of on merits. Also where defendant admits claim of the plaintiff, the suit cannot be dismissed.  

Ground for giving ex parte Decree :-

This concept is very well mentioned under Order 9 Rule 6(1), which say that:- “Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then; (a) When summons duly Served:- if it is proved that the summons was duly served, the court may make over an order that the suit be heard Ex Parte, (b) When summons not duly served:- if it is not proved that the summons was duly served, the court shall direct a second summons to be issued and served on the defendant; (c) When summons served but not in due time:- if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in summons.

The provision contained in order 9 Rule 6 Code of Civil Procedure is pertinent. The court laid down provision in the case of Sushil kumar Sabhrawal v. Gurpreet singh[34], It contemplated three situation when on a fate fixed for hearing the plaintiff appears and the defendant does not appear and three courses to be followed by the court depending on the given situation. The three situation are (i) When summons duly Served (ii)When summons not duly served (iii)When summons served but not in due time. In first situation, when it is proved that the summons was duly served, and has been afforded an opportunity of appearing then, the court may make an order that the suit may be heard ex parte. The provision casts an obligation on the court and simultaneously invokes a call to the conscience of the court to feel satisfied in the sense of being “proved” that the summons was duly served. In such a situation, the court is conferred with discretion to make an order that the suit be heard ex parte. Of course the fact that court is proceeding ex parte will be recorded in the minutes or its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ex parte decree of other ex parte order which the court is authorized to make. All that Rule 6(1) (a) does is to remove a bar and no more. It merely authorizes the court to do that which it could not have done without this authority, namely to proceed in the absence of one of the parties.

 

The word ‘ex parte’ means in the absence of the other party. If the court, after directing the suit be heard ex parte, takes up the case for hearing, the defendant cannot be debarred from participating in the hearing from the next date when he appears[35].

It is not mandatory that when the defendant is absent the court must order to proceed ex parte. It is the discretion of the court to adjourn the case if it feels that defendant might not have turned up due to the short time given in the summons and after service there was no reasonable time left for his appearance in court. A court should not decree the suit merely because the suit is proceeded ex parte. It must satisfy itself that the suit is not barred by law and also that facts alleged in the plaint have been proved [36].

Be it noted that the fact of filing written statement  by defendant, the fact of participation of the defendant in the proceeding for some time and the fact that substantial trial has been conducted are no grounds to bar the jurisdiction under Rule 6 of Order 9 of the Code of Civil Procedure to proceed against the defendant and pass ex parte decree. If the defendant appears on subsequent date of hearing he can cross-examine the witnesses of the plaintiff and argue that the plaintiff has failed to prove his case even though his written statement cannot be entertained. However, when the suit is already fixed for final hearing and the defendant does not turn up on call, it is not necessary for the court to fix another date for hearing the case ex parte and it can pass a decree after hearing the suit ex parte on the very day[37].

Under Rule 6(1)(a) the date fixed appear to be first date and it is to be noticed that the word ‘hearing’ has been used in a technical sense as on the first date the suit cannot be heard. At the best, issues can be framed or if the plaintiff is more sincere some evidence can be led. The an order relating to the disposal of the matter but essentially for the further progress of the suit.

But in the case of Chari v. Achuthan[38], court said that, where the court decides to proceed ex parte, it merely means that it will go ahead with the case in absence of the defendant. But in ex parte proceeding also the court is as much bound to pass a legal order as in case which is contested. Absence of a defendant does not absolve the court from acting according to law. If the plaintiff makes out a case, the court may pass a decree in his favour. If, on other hand, he is unable to prove his case, the court will have to dismiss the suit. Mere absence of the defendant does not justify the presumption that the plaintiff’s case is true and must be decreed. The plaintiff is bound to prove his case to the satisfaction of the court and this burden is neither discharge nor lightened because the defendant is absent.

As we have already observed, our laws of procedure are based in principal that, as far as possible, no proceeding in a court of law should be conducted to the detriment of a person in his absence. There are of course exception, and this is one of them. When the defendant has been served and has been afforded an opportunity of appearing then, if he does not appear, the court may proceed in his absence. But, be it noted, the court is not directed to make an ex parte order.

In Arjun Singh v. Mohindra Kumar[39], the Supreme Court stated;

“In its essence it is directed to ensure the orderly conducted of the proceeding by penalizing improper dilatoriness calculated merely to prolong the litigation. It does not put an end to the litigation nor does it involve the determination of any issue in controversy in the suit. Besides, it is obvious that the proceeding is of a very summary nature and this is evident from the fact that as contrasted with Order 9 Rule 9 Or Rule 13, no appeal is provided against action of the court under Order 9 Rule 7, ‘refusing to set back the clock’. It is, therefore, manifest that the code proceeds upon the view not imparting any finality to the determination of any issues of facts on which the court’s action under that provision is base.”

Thus, the order that the suit be heard ex parte does not disentitle the defendant from taking all steps which he is otherwise entitled to take in subsequent proceedings. The only thing is that after the above order, if the court has taken some steps in the trial, it is open to the defendant to apply at a later stage to restore status quo ante[40] and ‘to set the clock aside’, obtaining before the order as to ex parte was passed. If good cause is shown for his absence, the court would grant the prayer and regulate the defendant to the same position which obtained before he was set ex parte. but even if good cause is not shown by him for his earlier absence, still it is open to him to join and participate in the proceedings at a later stage accepting the events which has taken place in the interregnum as they stand[41].

Conclusion

After going into depth of the subject researcher wants to conclude the doctrine research by saying that the Code of Civil Procedure, is an immensely skillfully drafted piece of legislation which incorporates almost every conceivable situation which may come before the courts as regards procedure. From the mistake in filing of any errors which may occur on the part of the parties at any stage of the proceedings. The Code of Civil Procedure is drafted in a framework which allows the court to ensure that if reasonable grounds exist for any situation which might occur the code make sure that the substantive rights of the parties are not compromised in the interest of procedural requirement.

The researcher after discussing above on the various concepts of the Appearance and Non-appearance of parties would like to conclude the hypotheses. The researcher would like to answer the hypothesis. The first hypothesis was, what would be procedure if the party appears after duly served summons. The researcher came to the conclusion that the procedure after such appearance on fixed date would be conducted as per the rule and provisions laid down in the Code. There is nothing different issue in the context of appearance of party.

The researcher came up with the second issue was, that what would be the consequence if the party not appears on the appointed date. The researcher on this issue would like to conclude that the court may pass an order for ex parte if the defendant does not appear on a fixed day. But the researcher also found that the court may gave the ex parte decree after giving specific reasons on which the defendant does not oppose.

Further coming up with the third hypothesis that when the court may pass an order of ex parte  decree, then the answer would be, the court may pass an ex parte order after waiting for the defendant, that he has fail to be present on the day fixed by the court. But this decree comes with the restriction that the court may not pass any such decree without any specific reason and without inquiring in it. The inquiry would be like of that there was no negligence on the part of the plaintiff on servicing the summons, it was duly served and if not duly served then necessary action must have been taken for re-issue of summons. After inquiring on such issues then only the court may give the ex parte decree.

By examining the various stages and the processes of the code and the provisions prescribed therein the researcher has come to the conclusion that every stage of the proceeding, there are enough safeguards in the code itself to ensure that the ultimate aim of justice is served. In case of errors the code has enough provisions which allow the parties to rectify their positions. Besides this at every stage the code ensures that the interests of justice are not sacrificed for the sake of procedural requirements.

[1] Manoharlal v. State of Maharastra,  (1971) 2 SCC 119

[2] State of Punjab v. Shamlal Murarri, (1976) 1 SCC 719

[3] Saiayd Mohd. Bakar v. Abdulhabib Hasan, (1998) 4 SCC 343

[4] Rafiq Ahmad v. Abdul Azizi AIR 1987 ALL 117.

[5] It is a Latin phrase that literally means “hear the other side”

[6] Palat v. Baijnath, AIR 1952 Pat 338.

[7] Jaspal Singh v. Municipal Corporation of Delhi, AIR 1972 Del. 230.

[8] Basanta Kumar Nag Choudhary v. Bijit Lal Das, AIR 1983 Gau 67.

[9] Basagar Missir v. Ramjatan Ray, AIR 1957 Pat 32.

[10] Subject to such conditions and limitations as may be prescribed, and to the provisions of law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

[11] When the period of limitation would begin to run under this Act against a like suit by a private person.

[12] Long life carpets v. Kesar Jahan, AIR 1988 All 55.

[13] Rafiq Ahmed v. Abdul Aziz, AIR 1987 All 117.

[14] Biswanath Chakraborty v. Bagla Chakraborty, AIR 2004 Cal 98.

[15]Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626.

[16] Ramesh chand Ardawatiya v. Anil Panjwani, AIR 2003 SC 2508.

[17] Karni Dan Singh v. Ram Chandra, AIR 2003 Raj 98.

[18]Smt. V. Prabha v. The state, AIR 1995 Del 128.

[19] Any other application for which no period of limitation is provided elsewhere in this Division.

[20] Calcutta Port Trust v. Shalimar Tar Products Lts., AIR 1991 SC 684

[21] It lays down that once a matter lo law or of fact or mixed issue of law and fact has been decided between two parties on given sets of facts, the same two parties cannot have another litigation between then to determine the same issue of law or fact.

[22] D. sangya Naik v. Department of Telecom, ILR 2005 Kar 1874

[23]Ram Kishor Agarwalla v. The Commissioner of Dhanbad Municipality, AIR 1978 Pat 237.

[24] K. Sudhakar Reddy v. Ind Bank Housing Ltd., 2008 (1) ALT 151

[25] Dharma Narayan Barman v. Upendra Nath Mondal, AIR 1994 Cal 231

[26] Mothukuri Ranga Rao v. Royyala Laxminarayana, (2008) 4 Alt 96 

[27] as a debt of justice

[28] AIR 1975 Bom. 68.

[29] AIR 1979 Cal. 8

[30] (1979) 48 Cut LT 130

[31] AIR 1985 Ori 270.

[32] 142 (2007) DLT 774.

[33] AIR 1991 Ori 283

[34] (2002) 5 SCC 377

[35] Om Prakash Malhotra v. Smt. Nirla, AIR 1992 All 233.

[36] Vakri v. Forward Bank, AIR 1984 TC 513.

[37] Arjun singh v. Mohindra Kumar, AIR 1964 SC 993

[38] AIR 1973 Ker LT 849

[39] AIR 1964 SC 993

[40] the way things were before

[41] Kamta Prasad v. Joggiya, AIR 1999 All 184