Appearance and Non-Appearance of Parties in CPC
In the Code of Civil Procedure (CPC), 1908, the appearance and non-appearance of parties is a crucial aspect that determines the course of civil proceedings. These provisions are laid down to ensure the proper administration of justice while also preventing delay or abuse of process.
π· APPEARANCE OF PARTIES UNDER CPC
β Meaning:
When a party (plaintiff or defendant) attends the court either personally or through an advocate on the date fixed for hearing, it is considered an appearance.
β Relevant Provisions:
Order IX, Rule 1 CPC: Provides that on the day fixed in the summons for the defendant to appear and answer the claim, the parties shall be in attendance in person or by their pleaders.
πΆ NON-APPEARANCE OF PARTIES
When either party fails to appear in court on the date fixed for hearing, the court may proceed according to the rules provided under Order IX.
Let's consider three possible scenarios under Order IX:
πΉ 1. Non-Appearance of Both Plaintiff and Defendant
Order IX, Rule 3 CPC
Rule: If neither party appears when the suit is called for hearing, the court may dismiss the suit.
Effect: The suit is dismissed for default, not on merits.
Remedy:
The plaintiff may file a fresh suit (if within limitation) or an application under Order IX Rule 4 for restoration, showing sufficient cause.
Case Law:
Salmond v. Kapoor Singh, AIR 1955 All 416
Held: Dismissal under Order IX Rule 3 is not a bar to a fresh suit.
πΉ 2. Non-Appearance of Plaintiff and Appearance of Defendant
Order IX, Rule 8 CPC
Rule: If the plaintiff does not appear but the defendant does, the court shall dismiss the suit, unless the defendant admits the claim (in part or whole), in which case a decree may be passed accordingly.
Remedy:
Plaintiff can apply under Order IX Rule 9 for restoration, by showing sufficient cause for non-appearance.
Application must be made within 30 days from the date of dismissal.
Case Law:
Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787
Held: If the suit is dismissed under Order IX Rule 8, restoration is possible under Rule 9 upon sufficient cause.
πΉ 3. Non-Appearance of Defendant and Appearance of Plaintiff
Order IX, Rule 6 CPC
Rule: If the plaintiff appears but the defendant does not, then:
If summons was duly served β Court may proceed ex parte (Rule 6(1)(a)).
If not duly served β Court directs re-issue of summons (Rule 6(1)(b)).
If summons served but there is no proper proof β Court may direct service again (Rule 6(1)(c)).
Ex Parte Decree:
If the court proceeds ex parte, it can pronounce judgment in favor of the plaintiff.
Remedy for Defendant:
Application under Order IX Rule 13 to set aside the ex parte decree.
Must show either:
Summons was not duly served, or
Sufficient cause for non-appearance.
Limitation: 30 days from the date of knowledge of decree.
Case Law:
G.P. Srivastava v. R.K. Raizada, (2000) 3 SCC 54
Held: For setting aside an ex parte decree, defendant must show that either summons was not served or there was sufficient cause.
Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993
Held: Mere negligence or lack of diligence is not sufficient cause.
π· RESTORATION OF SUIT / SETTING ASIDE DECREE
1. Dismissal of Suit (Plaintiff default) β Order IX Rule 9
Requires application + sufficient cause
Within 30 days (Article 122 of Limitation Act)
2. Ex Parte Decree (Defendant default) β Order IX Rule 13
Application to set aside ex parte decree
Must prove non-service or sufficient cause
Within 30 days (Article 123 of Limitation Act)
π· IMPORTANT POINTS
Appearance can be personal or through pleader.
Sufficient cause is key in all applications for restoration or setting aside decrees.
A suit dismissed in default is not decided on merits and hence res judicata does not apply.
β Summary Table
| Situation | Rule | Court Action | Remedy Available |
|---|---|---|---|
| Neither party appears | Order IX Rule 3 | Suit dismissed | Fresh suit or restoration (R.4) |
| Plaintiff absent, defendant present | Order IX Rule 8 | Suit dismissed | Restoration under Rule 9 |
| Plaintiff present, defendant absent | Order IX Rule 6 | Ex parte decree | Set aside under Rule 13 |
π Conclusion:
Appearance and non-appearance of parties are procedural aspects but have substantive consequences in civil suits. The CPC provides remedial provisions to ensure that justice is not denied due to procedural defaults, but courts also require diligence and good faith from litigants. The discretion of the court plays a vital role, especially in determining what constitutes βsufficient cause.β
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