Appearance and Non- Appearance under CPC

This article is written by Saba Banu , a 3^rd year law student of Pendekanti Law College, Hyderabad.

INTRODUCTION

In every case, a suit requires parties, which are most important for proceedings. If the parties to the suit do not show up, then it can be termed to be the non appearance of parties. Under the civil procedure code, there are certain provisions relating to the appearance and non appearance of the parties, by using this, they can be held liable and there will be consequences which they have to face. It is required that, parties to the proceedings appear in the court on the mentioned date by the court, either themselves or on behalf of them, their pleaders can visit. It is must and that they should visit to hear the pleadings argued by their respective counsels. Order IX of the civil procedure code lays down the principles on appearance of parties and what will be the consequences for non- appearance of parties. It is therefore said that parties should appear before the court for the proceedings, if they do not appear, then the court may apply Rule 12 of Order IX, which states that, if the plaintiff does not appear, then the suit is dismissed, because the burden of proof lies on the plaintiff to prove all the proceedings. If the defendant does not appear, then, they can pass an ex-parte order.

When both the parties, do not appear for the hearing, then the court may take action, and the court may dismiss the suit under Rule 3 of Order IX, and if the plaintiff gives a reasonable ground for his non appearance, upon which if the court satisfies, then the court can give another date for the hearing of the case.

As mentioned in the article, there will be consequences if the parties do not appear, they can be classified in 3 ways:

Both the parties,
Only if the plaintiff is absent,
Only if the defendant is absent.

When both the Parties does not Appear

Under the civil procedure code, if both the parties to suit do not appear, then the court may dismiss the case under Rule 2 of Order IX. And then the court may give a fresh date, for the hearing for both the plaintiff and defendant. And this power is discretionary to that of the judge, either they can dismiss the suit or can give another date for the proceedings of the case. And this duly will be applied to the non appearance of both the parties; if the plaintiff has appeared then it won’t be dismissed.

When Plaintiff does not Appear

If the plaintiff fails to appear, the court can dismiss the suit according to rule 8. Dismissal of suit depends totally on the defendant, whether the defendant accepts the claims raised by the plaintiff.

Case law: In Lakshmi commercial vs. Hansraj, the court said that this rule would not apply where the suit is dismissed for plaintiff’s non appearance, not for hearing the issue but for some interlocutory matter.

When the Defendant does not Appear

Under rule 6 of Order IX, the defendant does not appear, the court under three circumstances, they are:

i) The defendant may choose to remain silent after receiving the summons.

ii) The defendant did not set out the summons.

iii) The defendant was served with summons, but appropriate time was not there to appear him to court.

So as mentioned above, there are three circumstances upon which the absence of the defendant can be identified, the court is entitled to proceed with the hearing of the case only by the plaintiff. These proceedings are called ex-parte proceedings.

As we have seen in the 3 scenarios, under 1^st and 2^nd scenarios, the court can issue adverse orders against the defendant. Under the 3^rd scenario, where the defendant did not have sufficient time to appear in the court, the court may give a further date to hear the issue.

What are ex-parte proceedings?

Under the civil procedure code, sub-rule 1(a) of rule 6 along with rule 13 of Order IX, deals with ex-parte proceedings. Ex-parte decree is passed when the plaintiff has appeared before the court, and the defendant did not, even if the summons was duly served. An ex-parte is given against the defendant, because he was absent at the hearing of the suit. In addition to this, the defendant has certain remedies when the ex-parte is issued.

Remedies available for defendant:

i) The defendant can apply to the court under rule 13 of Order IX, for setting aside the decree passed by the court.

ii) Defendant can apply for a review under Order 47 rule 1

iii) A suit on the ground of fraud can be filed.

CONCLUSION

The appearance and non-appearance of the parties will have duly effect on their case, by dismissing the suit or hearing on the further date or ex-parte can be passed. So, when the parties have not appeared in the court, then the court will have to take up any step mentioned. In regard, to dismiss the suit it is the discretionary power, that to dismiss the or not, in the hands of the judge. The judge can either dismiss the suit, or can give a further date, by seeing the reason stated by the party, and duly take the decision.

There are situations upon both the plaintiff and the defendant, if the defendant did not appear to court, then the court may pass ex-parte decree, on the other hand, if the plaintiff did not appear in the court then, the court may dismiss the suit and give the further date for the proceedings, along with it, the decision lies on the defendant.

When any ex-parte decree is passed, it can be set aside if the court may satisfy the reason given by them.

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