Introduction
In a civil suit, both the plaintiff and defendant must appear before the court when required. The appearance ensures that the trial proceeds smoothly and that both sides get an opportunity to present their case. The provisions regarding appearance and non-appearance of parties are covered under Order 9 of the Civil Procedure Code (CPC), 1908.
If a party fails to appear, the court has the power to dismiss the suit, proceed ex parte, restore dismissed suits, or set aside ex parte decrees, depending on the circumstances.
1. Appearance of Parties (Order 9, Rule 1, CPC)
- The plaintiff and defendant must appear before the court on the date fixed in the summons.
- The parties may appear in person, through a pleader (advocate), or through an agent authorized to act on their behalf.
Consequences of Appearance
- If both parties appear, the case proceeds as per the normal trial process.
- If either party fails to appear, different consequences arise based on who is absent.
2. Non-Appearance of Plaintiff (Order 9, Rules 2-4, CPC)
When the plaintiff does not appear, the consequences depend on whether the defendant appears or not.
(i) Non-Appearance of Plaintiff, Defendant Appears (Order 9, Rule 8)
- The suit may be dismissed in default.
- The plaintiff can file a fresh suit, or
- The plaintiff can apply for restoration of the dismissed suit under Order 9, Rule 9 if they show a valid reason for non-appearance.
Case Law: Ram Naresh v. Panchu Lal (1985)
- The court held that a suit dismissed due to non-appearance of the plaintiff can be restored if the plaintiff gives a satisfactory explanation.
(ii) Non-Appearance of Plaintiff and Defendant (Order 9, Rule 3)
- If neither party appears, the court may dismiss the suit.
- The plaintiff can file a fresh suit or apply for restoration under Order 9, Rule 4.
3. Non-Appearance of Defendant (Order 9, Rule 6, CPC)
If the defendant does not appear, the court may:
(i) Proceed Ex Parte (Order 9, Rule 6(1)(a))
- If the court is satisfied that the defendant was properly served with summons but still failed to appear, it may proceed ex parte (without the defendant).
- The plaintiff can present evidence, and the court may pass an ex parte decree.
Case Law: Sangram Singh v. Election Tribunal (1955)
- The Supreme Court held that an ex parte decree is valid unless set aside under Order 9, Rule 13.
(ii) Adjournment (Order 9, Rule 6(1)(b))
- If the defendant is absent but has not been properly served, the court may adjourn the case and order fresh service of summons.
(iii) Dismissal (Order 9, Rule 2)
- If the plaintiff fails to pay process fees or take other necessary steps, the suit may be dismissed.
4. Setting Aside Dismissal & Ex Parte Decree
(i) Restoration of Dismissed Suit (Order 9, Rule 9)
- If the suit is dismissed due to plaintiff’s absence, the plaintiff can apply for restoration.
- The plaintiff must prove that there was a valid reason for their absence.
Case Law: G.P. Srivastava v. R.K. Raizada (2000)
- The court ruled that sufficient cause must be shown for restoration of a dismissed suit.
(ii) Setting Aside an Ex Parte Decree (Order 9, Rule 13)
- If an ex parte decree is passed against the defendant, they can apply to have it set aside.
- The defendant must prove either:
- They were not properly served with summons, or
- There was a sufficient reason for their absence.
Case Law: Arjun Singh v. Mohindra Kumar (1964)
- The Supreme Court held that a defendant must act promptly if they wish to set aside an ex parte decree.
5. Difference Between Dismissal of Suit & Ex Parte Decree
| Aspect | Dismissal of Suit | Ex Parte Decree |
|---|---|---|
| Reason | Plaintiff’s absence | Defendant’s absence |
| Effect | Suit is dismissed | Judgment is passed against the defendant |
| Remedy | Plaintiff can file a fresh suit or apply for restoration | Defendant can apply to set aside the decree |
| Relevant Rule | Order 9, Rule 8 & 9 | Order 9, Rule 6 & 13 |
6. Conclusion
The appearance and non-appearance of parties play a crucial role in civil proceedings. While courts generally prefer to decide cases on merit, they also ensure that parties cannot unreasonably delay proceedings. The CPC provides mechanisms for restoration of dismissed suits and setting aside ex parte decrees, ensuring fairness and justice.
