Appearance and Non-Appearance of Parties under CPC

This article is written by Harshit Khandelwal, 2nd year Law student currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University. In this article, the author discusses the laws regarding the appearance of parties and what are the consequences of non-appearance of parties.

INTRODUCTION

The fate of any case depends on an important factor i.e., the appearance and non-appearance of parties in a civil suit. Non-appearance of any party in the count on a determined day may result in an adverse decision. The provisions of the CPC (Civil Procedure Code, 1908) states that no proceedings detrimental to the interest of any of the parties to the suit shall be conducted before the court. The parties must appear in front of the court on the due date which has been fixed by the court of law. In the case of the non-appearance of one party to the suit, the judgement may go in favour of the other party appearing in front of the court.

Rule 1 of Order IX of the Code of Civil Procedure, 1908 states that the parties to the suit need to attend the court either in person or by their pleaders on the due date which has been fixed by the court of law. If on the given due date either plaintiff or the defendant do not appear in the court and neither have the sufficient cause for the non-appearance, the court is empowered to decide under Rule 12 of Order IX as follows –

a) If the defendant does not appear in the court of law on the due date, the court can dismiss the suit.

b) If the plaintiff does not appear in the court of law on the due date, the court can pass ex-parte order.

Rules regarding the appearance and non-appearance of parties under Order IX of the CPC –

Rule 2 states the consequences regarding the non-deposition of fees by the plaintiff.
Rule 3&4 states the consequences of non-appearance of both the parties to the suit.
Rule 8, 9, and 9A deals with the consequences of non-appearance of the plaintiff to the court of law.
Rule 6, 13, and 13A deals with the consequences of non-appearance of the defendant to the court of law.

Appearance of Parties

Appearance means the appearance of the party to the suit before the court of law. This appearance can be by the party in person or through his advocates or any person along with the advocates of the party. The appearance of the parties on the date of the first hearing of the case is mentioned in Rule 1 of Order IX.

When Neither Party Appears

According to Rule 3 & 4 of Order IX of CPC, 1908 states that when both the parties to the suit does not appear before the court of law on the due date fixed. Rule 3 of Order IX states that in such a case the suit can be dismissed by the court of law and Rule 4 states that plaintiff can file a new suit if he satisfies the court the sufficient reason for his non-appearance in court.

When Only Plaintiff Appears

An ex-parte order can be passed against the defendant when only the plaintiff appears and the defendant does not appear in the court of law on the due date. The court can proceed for an ex-parte order against the defendant only when services of the summon are proved in the court and then the court may pass a decree in favour of the plaintiff. This provision does not apply for the subsequent hearings but only applies to the first hearing and the same was held in the case of Sangram Singh v. Election Tribunal.

When Only Defendant Appears

The legal consequences of the non-appearance of the plaintiff and appearance of the defendant in the court of law are mentioned in Rule 8 of Order IX of the CPC, 1908. According to this rule, in a case when the defendant appears in the court of law on the due date and the plaintiff remains absent, then the court has the power to pass an order of dismissal of the case unless the defendant admits a claim.

Ex-Parte Decree

Rule 6(1)(a) of the CPC, 1908 states that the court has the power to pass any judgement ex-parte in the case where the defendant does not appear in the court of law on the due date which has been informed to him by the summon duly served on him of the case. An ex-parte decree is voidable at the option of one party which may seek the order of annulment of the decree.

Remedies

The following remedies are available when an ex-parte decree is passed against the defendant –

1. A suit can be filed on the grounds of fraud.

2. The defendant can apply for a review under Order 47 Rule 1.

3. The defendant can appeal against that decree under section 96(2) of the code, or prefer revision under section 115 of the code when no appeal lies.

Setting Aside an Ex-Parte Decree

An application should be made by the defendant for setting aside an ex-parte decree. There are some rules which need to be followed for setting aside an ex-parte decree and when the defendant satisfies the court with sufficient cause, after that only the ex-parte decree which has been passed can be set aside.

There is a limitation period for setting aside an ex-parte decree and within that period an application should be filed i.e. 30 days.

There are certain grounds on which an ex-parte decree can be set aside-

1. When the summon has not been served.

2. Due to any sufficient cause, the defendant could not appear on the day of the hearing.

CONCLUSION

The appearance and non-appearance of the parties directly affect the case and helps in letting everyone know whether it will be carried on for the next hearing, dismissed or an ex-parte decree will be given. During the whole procedure, the court must keep in mind that nowhere any miscarriage of justice is done during the dismissal or while passing an ex-parte decree.

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