By Meher Sunil Dabrai
It is a general principle of law that a proceeding is to be carried out in the presence of both the parties to a suit. While this may be common knowledge, it is not always the case. 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.
The presence of the parties is crucial to conduct the court proceedings therefore when a party does not appear in the court it has an adverse effect on the party that does not appear.
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.
In legal terms, the word “appearance” means the appearance of a person through their advocate in order to conduct the proceedings in court. However, in certain Courts such as the family court, a litigant has an option to appear in the court in person without going through an Advocate.
Order IX of the Code of Civil Procedure lays down the laws regarding the appearance of the parties and the consequences if they do not appear.
Thus, this article deals with the effects of non-appearance of parties to a suit.
The Appearance of the Parties to a suit
As stated under Rule 1 of Order IX of the Code of Civil Procedure, once the summons have been received by the parties and they have been intimated about the day and the date on which the suit is to be conducted, they are required to appear in the court in person or through an advocate on the fixed day.
If the plaintiff or the defendant fail to appear in the court and furthermore also fail to produce any sufficient cause for their absence the court is empowered under Rule 12 of Order IX as follows:
- If the plaintiff continuously fails to appear, to dismiss the suit.
- If the Defendant fails to appear, to pass an ex-parte order.
If both the parties do not appear
When neither the Plaintiff nor the Defendant appears before the court and the suit is called for hearing then the court is empowered to dismiss the suit under Rule 3 of Order IX of the Code of Civil Procedure. Rule 4 states that the dismissal of the suit under this rule does not put a bar on filing a fresh suit on the same cause of action.
The Plaintiff is also entitled to apply to set aside the dismissal if he is able show a sufficient cause for his absence. If the court is satisfied with such a cause then it may set aside the dismissal order and schedule another day for the hearing of the suit.
When the Defendant does not appear
In a case where the Defendant has been duly served with the summons and has still not appeared in the court on the given date but the plaintiff is present in the court then an ex-parte order may be passed against the Defendant provided that it has been proved by the Plaintiff that the Defendant had received the summons.
Once an ex-parte order has been passed, then the Court proceeds to pass a decree in favor of the Plaintiff.
If the service of the summons is proved then the court has the power to pass an ex-parte order against the defendant and further pass a final decree in favor of the plaintiff.
- Sangram Singh Vs Election Tribunal
Ex-parte is only applicable to the first hearing.
The court held that the provision applies only for the first hearing and not for the subsequent hearings of the matter.
- Maya Devi Vs Lalta Prasad
Even while passing an ex-parte order it is the duty of the court to administer justice even in the absence of the defendant.
It has been held by the Supreme Court that it is the duty of the court to ensure that statements in the plaint stand proven and the prayers before the court are worthy of being granted. Ex-parte order cannot be passed when there is more than one defendant in the case and even one of them has appeared in the court.
When the Plaintiff does not appear
When only the defendant appears in the matter then the provisions under Rule 11 of Order IX are followed. When the defendant appears but the plaintiff does not then there can be two situations:
- The Defendant does not admit the claim of the plaintiff either wholly or any part of it.
- The Defendant admits the claim of the Plaintiff.
If the Defendant does not admit to the claims made by the Plaintiff then the court has the power to dismiss the suit. If the Defendant admits to part or all of the claims made by the plaintiff then the court has the power to pass a decree against the Defendant on the grounds of such admission and the suit may stand dismissed for the claims that have not been admitted by the Defendant.
- PMM Pillayathiri Amma Vs Lakshi Amma
If the Plaintiff does not appear due to his death.
It was held that when the Plaintiff has not appeared due to his death then the court does not have the power to dismiss the suit and if such a dismissal order is passed then it amounts to nullity.
When the suit has been dismissed on the grounds of non-appearance of the plaintiff then the order of dismissal can be set aside by filing an application. If the court is convinced that the reason for the absence of the parties is a legitimate one then the court can set aside an order dismissing the suit and fix a new date to conduct the proceedings.
- P.K.P.R.M. Raman Chettyar Vs K.A.P. Arunachalam Chettyar
Court has the discretion to set aside the dismissal.
It was held that in the absence of a sufficient cause the court has the discretion to set aside the dismissal or not.
It has also been observed that if the party to a uit has appeared on the stipulated day but is late and has arrived after the matter has been called out then the matter may be restored as late appearance is not the same as non-appearance.
- Chhotalal Vs Ambala Hargovan 
When a party is present but has arrived late.
The Hon’ble High Court observed that when a party arrives late and finds out that the party has arrived late and found that the suit has been dismissed on the grounds of non-appearance then the party is entitled to have the suit or application restored with the payment of costs.
As we have already discussed hereinabove, an ex-parte decree is passed in the absence of the Defendant. Such a decree has all the force of any other valid decree that may be passed by the court unless it has been challenged. It is a voidable decree.
Rule 6(1)(a) of Order IX of the Civil Procedure code empowers the court to pass any judgement ex parte in case the defendant part does not appear in the proceedings on the date that has been allotted for the same in the summons that have been duly served on him in the case.
An ex parte decree is neither void not inoperative but it is voidable at the option of one party which may seek an annulment order for the same.
- Panduranga Ramchandra Vs Shantibai Ramchandra
An ex-parte decree has all the forces of a valid decree.
An ex-parte decree is absolutely valid and is not null and void but can be merely voidable unless it is annulled on legal and valid grounds. An ex-parte can be enforced like a bi-parte decree and has all the forces of a valid decree.
Remedies against an ex-parte decree
When an ex-parte decree has been passed against a Defendant, the following remedies can be made available to him:
- The person may apply to set aside the ex-parte decree under Rule 13 of Order IX
- The person can appeal against the decree under Section 96(2) of the code or for revision under Section 115 in a case where an appeal does not lie.
- He can apply for a review under Order 47 Rule 1
- A suit may be filed on the grounds of fraud.
The appearance and non-appearance of the parties have a direct effect on the case and whether it will be carried on the next hearing or dismissed or whether an ex-parte decree will be given in the matter. The court has the discretion to dismiss or restore the case depending on whether or not sufficient cause has been shown to the court.
When any suit is dismissed, or an ex-parte order is passed then the court has the power to set aside the ex-parte order if they find sufficient reason behind the absence of the parties.
While passing any adverse orders in the absence of the parties the court needs to keep in mind whether or not there have been valid reasons to their absence so that no miscarriage of justice is carried out.
- The Code of Civil Procedure 1908
- Sangram Singh Vs Election Tribunal 1955 AIR 425 ↑
- Maya Devi Vs Lalta Prasad Civil Appeal NO. 2458 OF 2014 ↑
- P.M.M. Pillayathiri Amma vs K. Lakshmi Amma And Ors. AIR Ker 135 ↑
- P.K.P.R.M. Raman Chettyar Vs K.A.P. Arunachalam Chettyar Civil Revision Petition No 708 of 1921 ↑
- Chhotalal Vs Ambala Hargovan (1925) 27 BOMLR 685 ↑
- Panduranga Ramchandra Vs Shantibai Ramchandra 1989 AIR 2240 ↑