This paper deals with order 9 of the cpc., Study Guides, Projects, Research of Civil procedure

Download This paper deals with order 9 of the cpc. and more Study Guides, Projects, Research Civil procedure in PDF only on Docsity! TABLE OF CONTENTS S.I NO. TOPIC PAGE NO. 1. INTRODUCTION 4-5 2. THE APPEARANCE OF PARTIES TO THE SUIT 6-7 3. THE APPEARANCE OF THE PLAINTIFF 8-14 4. THE APPEARANCE OF DEFENDANT 15-16 5. NON APPEARANCE OF BOTH THE PARTIES 6. WHERE SUMMON IS NOT SERVED 7. EX PARTE DECREE 8. CONCLUSION 17 9. BIBLIOGRAPHY 18 1 | Page INTRODUCTION The provisions of the Code of Civil Procedure, 1908 are based on the fact that it is the duty of the concerned party to be aware of his rights, show vigilance towards the court and establish his or her claim by taking the appropriate measures. The general provisions contained in the Civil Procedure Code of 1908 is based on the principle that no proceedings which are detrimental to the interest of any of the parties to the suit shall be conducted in the court of law. It is the duty of the parties to the suit to show presence before the court of law on a due date which has been fixed by the court. In legal terms, the word “appearance” means the appearance of a person through their advocate in order to conduct the proceedings in court. Appearance and non-appearance of the parties in a civil suit is the important factor upon which the fate of any case depends. There have been times when the person against whom the case has been filed may not appear in the court even after the issuance of summons against the person. A mere non-appearance of a party in front of the court on a determined day has an adverse effect on the party that does not appear and the judgement of the court may turn in favour of the party appearing in front of the court. However, in situations where a suit is determined irrespective of the fact that any of the parties to the suit are absent on the due date. Then, the non-appearing party in order to safeguard its interest can revive the suit by following the provisions of Civil Procedure Code, 1908. Laws regarding the appearance of the parties and the consequences in case of non- appearance of parties are contained in the Order IX of Civil Procedure Code, 1908. It also provides a remedy for sitting aside an order of dismissal of the suit as also the setting aside of an Ex-parte decree passed against the defendant. The law with regard to the appearance of the parties to the suit and the consequences of non-appearance of parties to the suit under the Order IX of CPC are as follows: Rule 1 and Rule 12 – Appearance of the parties. Rule 2– The consequences of non-deposition of fees by the plaintiff. Rule 3 and Rule 4- The consequences of non-appearance of both the parties to the suit. 2 | Page Rule 9 precludes the plaintiff thereafter from filing a fresh suit on the same cause of action. He may, however, apply for an order to set aside the order of dismissal. And if the court is satisfied that there was sufficient cause for his non-appearance the court may set aside the order of dismissal and fix a day for proceeding with the suit. 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.26 In such a case, a decree may be contested as one against some of the defendants and ex parte against the rest. RULE 7 Where the court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, the court may hear him upon such terms as it directs as to the costs or otherwise” It has been held that Rule 7 of Order 9 is directed to ensure orderly conduct of proceedings by penalising improper dilatoriness calculated merely to prolong the litigation.2 NON APPEARANCE OF BOTH THE PARTIES Rule 3 and Rule 4 of Order IX of Civil Procedure Code, 1908 deals with the cases where neither the plaintiff nor the defendant appears when the suit is called out for hearing, the court may dismiss it. Dismissal of suit for non- prosecution or for non-appearance of plaintiff does not amount to “decree”, and is, therefore, not appealable. The dismissal of the suit under Rule 3 does not bar a fresh suit in respect of the same cause of action. The plaintiff may also apply for an order to set aside such dismissal. And if the court is satisfied that there was sufficient cause for his non-appearance, it shall pass an order setting aside the dismissal of the suit and shall fix a day for proceeding with the suit. In Arjun Singh V. Mohindra Kumar & Ors 3 , the apex Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a “good cause” and “sufficient cause” is that the requirement of a good 2 Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993. 3 AIR 1964 SC 993 5 | Page cause is complied with on a lesser degree of proof than that of a “sufficient cause”. In Damu Diga v. Vakrya Nathu4, the plaintiff sued the defendants, D1 and D2. On the date fixed by the court for appearance of the parties to the suit only D2 appeared in the court. The subordinate court erred while passing the order of dismissal of the case. However in an appeal against the decision of the court. It was held that the present case comes under the purview of Rule 4 of Order IX of CPC and court should take into consideration the fact that not only the plaintiff in the case was absent from the proceedings. But, defendant number 1 was also absent and the according to Rule 4, the court must allow the plaintiff to apply for an order setting aside the dismissal of the case by the court. WHERE SUMMON IS NOT SERVED The service of summons on the defendant is, 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 passes against him5. Rule 2 of Order 9 enacts that the 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. No such order, however, can be passed in spite of such failure by the plaintiff if the defendant appears in person or by his authorized agent on the day fixed for him to appear. The plaintiff may file a fresh suit even after the dismissal of the suit under Rule 2 in respect of the same cause of action or may apply for an order to set aside such dismissal. And if the court is satisfied that there was sufficient cause for such failure, the court shall set aside such order of dismissal and shall fix a day for proceeding with the trial. EX PARTE DECREE Meaning An ex pate decree is a decree passed in the absence of the defendant (in absenti). Where the plaintiff appears and the defendant does not appear when the suit is called out for hearing and if the defendant is duly served, the court may hear the suit ex parte and pass a decree against him. Such a decree is neither null and void nor inoperative but is merely voidable and useless 4 (1920) 22 BOMLR 328 5 Begum Para . Luiza Matilda Fernandes,( 1984) 2 SCC 595. 6 | Page 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.6 Remedies The defendant, against whom an ex parte decree has been passed, has the following remedies available to him: 1. to apply to the court by which such decree is passed to set it aside: Order 9 Rule 13; or 2. to prefer an appeal against such decree: Section 96(2) (or to file a revision under Section 115 where no appeal lies); 3. to apply for review: Order 47 Rule 1; or 4. to file a suit on the ground of fraud.7 Setting aside ex parte decree The defendant against whom ex parte decree has been passed may apply for setting it aside. Where there are two or more defendants, any one or more of them may also make such applications. 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. Grounds If the defendant satisfies the court that 1. the summons was not duly served; 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 not 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. 6 Panduranga Ramchandra v. Shantibai Ramchandra, 1989 supp (2) SCC 627. 7 Rupchand Gupta v. Raghuvansi (P) Ltd., AIR 1964 SC 1889 7 | Page However, order 47 of the Civil Procedure Code provides for the limitations and conditions with respect to the review of the cases. The Supreme Court Rules, 1966, provides that the limitation period for filing a review petition against any decision passed by the court is 30 days from the date of passage of such an order. Since all the remedies against an ex parte decree are concurrent, an aggrieved party can also file an application for review if the conditions laid down in Order 47 Rule 1 are satisfied. Suit A suit to set aside an ex parte decree is not maintainable. But if an ex parte decree is alleged to have been obtained by the plaintiff by fraud, the defendant can file a regular suit to set aside such decree. It is settled law that fraud vitiates the most solemn transactions. In such suits, the onus is on the party who alleges that the ex parte decree passed against him was fraudulent. CONCLUSION The appearance and non-appearance of parties have an effect on the case and whether it will be carried on for the next hearing, dismissed or an ex-parte decree will be given. When none of the parties appears then the suit can be dismissed by the court. The suit is carried on for the next hearing only when both parties appear before the court. If the plaintiff appears before the court but no defendant appears on the day of hearing then the court may pass an ex-parte decree against the defendant. The situations when there is non- appearance on the behalf of the plaintiff then the suit can be dismissed if the defendant denies the claim of the plaintiff and if he admits to any claim the court can pass an order against him on the ground of his admission. When any suit is dismissed or an ex-parte order is passed then it can also be set aside if there is sufficient reason behind the absence of a party. If the court is satisfied with the reason of absence then it may set aside the order of dismissal or an ex-parte order. During all these 10 | Page procedures the court must keep in mind that nowhere any miscarriage of justice is done during the dismissal or while passing an ex-parte order. On one hand, the courts are free to dismiss any case in the case of non-appearance of any party to the suit which is also the need of the hour keeping in view a large number of cases which are pending in the courts. But at the same time, the courts are bound to continue the proceedings even in the cases where the non-appearance of any party is due to any special circumstances established by such a party. This is important in order to uphold the ultimate objective of every judicial system which is the welfare and creation of an egalitarian society. BIBLIOGRAPHY PRIMARY SOURCES STATUTE 1. The Code of Civil Procedure, 1908 [5 of 1908]. SECONDARY SOURCES BOOKS 1. C.K. Takwani: Civil Procedure Limitation and Commercial Courts ,(9th Edition, 2021) Eastern Book Company, Lucknow. 2. Avtar Singh: Code of Civil Procedure, (5th Edition, 2019), Central Law Publications, Allahabad. 3. Prof. M. P. Jain: The Code of Civil Procedure , (5th Edition 2019), LexisNexis India, Gurgaon. WEBSITES 1. www.indiankanoon.com 2. www.casesmine.com 3. www.legalservicesindia.com 4. www.scconline.com 11 | Page 12 | Page