Order IX – Appearance of Parties and Consequence of Non-appearance

Rule 1: Parties to appear on day fixed in summons for defendant to appear and answer—

On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court House in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.

Rule 2: Dismissal of suit where summons not served in consequence of plaintiff’s failure to pay costs—

Where on the day so 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.

Rule 3: Where neither party appears, suit to be dismissed—

Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

Rule 4: Plaintiff may bring fresh suit or Court may restore suit to file—

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.

Rule 5: Dismissal of suit where plaintiff, after summons returned unserved, fails for three months to apply for fresh summons—

(1) Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, 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 the serving officers, to apply for the 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 failed after using his best endeavours to discover the residence of the defendant, who has not been served, or

(b) such defendant is avoiding service of process, or

in which case the Court may extend the time for making such application for such period as it thinks fit.

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

Rule 6: Procedure when only plaintiff appears—

(1) 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 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 the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiff’s default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.

Rule 7: Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance—

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, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

Rule 8: Procedure where defendant only appears—

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 relates to the remainder.

Rule 9: Decree against plaintiff by default bars fresh suit—

(1) 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 the 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.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

Rule 10: Procedure in case of non-attendance of one or more of several plaintiffs—

Where there are more plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks fit.

Rule 11: Procedure in case of non-attendance of one or more of several defendants—

Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear.

Rule 12: Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person—

Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively, who do not appear.

Setting aside decrees ex parte

**Rule 13: Setting aside decree ex parte against defendant**—

In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was 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 thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

Explanation.—Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.

Rule 14: No decree to be set aside without notice to opposite party—

No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.

IMPORTANT CASE LAWS

1. Difference between ‘good cause’ and ‘sufficient cause’:

Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 : “…….we might observe that we do not see any material difference between the facts to be established for satisfying the two tests of “good cause” and “sufficient cause”. We are unable to conceive of a “good cause” which is not “sufficient” as affording an Explanation for non appearance, no conversely of a “sufficient cause” which is not a good one and we would add that either of these is not different from “good and sufficient cause” which is used in this context in other statutes. If, on the other hand, there is any difference between the two it can only be that the requirement of a, good cause is complied with on a lesser degree of proof than that of “sufficient cause” and if so, this cannot; help the appellant, since assuming the applicability of the principle of res judicata to the decisions in the two proceedings, if the Court finds in the first proceeding, the lighter burden not discharged, it must afortiori bar the consideration of the same matter in the later where the standard of proof of that matter is, if anything, higher.”

2. Applicability of Order IX Rule 7:

Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 :“………..If the entirety of the “hearing” of the suit has been completed and the Court being competent to pronounce the judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under Order XX. Rule 1, there is clearly no adjournment of “the hearing” of the suit, for there is nothing more to be heard in the suit. It was precisely this idea that was expressed by the learned Civil Judge when he stated that having regard to the stage which the suit had reached the only proceeding in which the appellant could participate was to hear the judgment pronounced and that on the terms of Rules 6 and 7 he would permit him to do that. If, therefore the hearing Was completed and the suit was not “adjourned for hearing”, Order IX. Rule 7 could have no application and the matter would stand at the stage of Order IX. Rule 6 to be followed up by the passing of an exparte decree making Rule 13 the only provision in order IX applicable.….“

3. Remedies in case of ex-parte decree

Neerja Realtors (P) Ltd. v. Janglu, (2018) 2 SCC 649 : “A defendant against whom an ex parte decree is passed has two options: the first is to file an appeal. The second is to file an application under Order 9 Rule 13. The defendant can take recourse to both the proceedings simultaneously. The right of appeal is not taken away by filing an application under Order 9 Rule 13. But if the appeal is dismissed as a result of which the ex parte decree merges with the order of the appellate court, a petition under Order 9 Rule 13 would not be maintainable. When an application under Order 9 Rule 13 is dismissed, the remedy of the defendant is under Order 43 Rule 1. However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal under Section 96. The three-Judge Bench decision in Bhanu Kumar Jain [Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787] has been followed by another Bench of three Judges in Rabindra Singh v. Financial Commr., Cooperation [Rabindra Singh v. Financial Commr., Cooperation, (2008) 7 SCC 663] , and by a two-Judge Bench in Mahesh Yadav v. Rajeshwar Singh [Mahesh Yadav v. Rajeshwar Singh, (2009) 2 SCC 205 : (2009) 1 SCC (Civ) 454] .”

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