This article is written by Nishka Kamath. It will give the readers interesting insights on Order 9 Rule 9. The major focus would be on understanding the legal implications of Rule 9, the conditions under which a suit can be resorted (most particularly under Order 9 Rule 9), and the rights of the parties when it comes to such matters. Further, this article has numerous case laws for better grasp of the topic for the reader. Moreover, a specimen on Order 9 Rule 9 is shared along with the FAQs.

Introduction

Did you know in civil litigation, if a party to the case does not show up in the court they could face serious repercussions? Well, in India, all such civil disputes and civil litigation are governed by the Civil Procedure Code (CPC), 1908, thus ensuring that justice is served in a fair and systematic manner. Among the various rules, regulations and provisions mentioned in the CPC, there is one Order 9 which plays a significant role in guiding the court’s actions, especially, when one of the parties does not appear in front of the court during the hearing of the case. 

Here is an interesting fact- Order 9 Rule 9 of the CPC explicitly talks about the scenario that would arise when a plaintiff does not appear and their case gets dismissed by default. But did you know, there are also some conditions under which such a suit can be restored? This rule acts as a balance between judicial efficiency and providing the plaintiff a second chance to move forward with their case, thus ensuring that mere absence or minor procedural issues do not come in the way of justice. So, let us dive deep in understanding how this fascinating rule works!

What is Order 9 Rule 9 CPC, 1908

Order 9 Rule 9 of the CPC, that discusses decree against plaintiff by default bars fresh suit, reads as-

“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.” 

Further, it also states that- 

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

Understanding Order 9 Rule 9 CPC, 1908

In simple language, Order 9 Rule 9 states that if a suit is partly or fully dismissed under the provision of Order 9, Rule 8 (discussed in the upcoming passages), the plaintiff is impeded, perhaps, prevented from filing a fresh lawsuit related to the same cause of action. However, the plaintiff may apply for the order of dismissing the suit to be set aside. If the court opines that the plaintiff showed sufficient cause for his/her non-appearance when the suit was called on for hearing, the court shall pass an order stating that the order for dismissal is set aside. Moreover, the court shall appoint a day for proceeding with the suit. 

Further, the second pointer states that no order shall be made under this rule unless the opposite party (i.e., the party against whom the application is made) has been served a notice (or informed) of such an application. This will ensure that both the parties have fair and square a chance to present their case and address their issues.

Well, when you hear Order 9, Rule 8, you may wonder what exactly is it? Want to know? Read further!

What is Order 9, Rule 8 of the CPC, 1908

Order 9, Rule 8 talks about what would be the outcome when only the defendant has appeared in the court of law. It says that upon calling the suit for a hearing, when only the defendant is present and the plaintiff is absent, then the court, at its discretion can pass an order that the suit thus filed be dismissed. 

There is an exception here. It states that, if the defendant admits the claims or any part thereof, the suit will not be dismissed, rather, the court will pass a decree (meaning, an official order) against the defendant based upon such admission. Further, the court may dismiss the other, remaining part of the suit, meaning, except the part that the defendant admits to be guilty of, the rest of the case shall be dismissed by the court.

Such a provision helps in making sure that the case proceeds in an efficient manner and that the plaintiff’s absence does not cause delay in the court proceedings (considering he/she is absent). Having said that, the defendant also gets a fair chance to admit the claims and does not have to go through the trouble of a full trial. This may also help save the court’s time as the rest of the case is dismissed and there is no need for a full trial to be conducted, thus saving time and resources of the court.

Importance of Order 9 Rule 9 CPC, 1908

In the case of Ravukumara Raj Appa Row vs. Veera Raghava Raya Choudary (1966), which was a lawsuit filed in the Andhra High Court, it was mentioned that Order 9 Rule 9 of the Civil Procedure Code, 1908, states if there is sufficient cause submitted to the court and the court agrees to that explanation, then the order for dismissal of suit can be set aside. Just like that, under Order 9, Rule 13, if the court opines that the defendant had sufficient cause for non-appearance in the court when the suit was called for hearing, then an ex parte decree passed against the defendant can be set aside. 

Therefore, if there is a sufficient cause which prevents a party from appearing in the court when the case was called for hearing, there can be a similar sufficient cause for a plaintiff not appearing when his/her application under Order 9 Rule 9, is called for. The same can be the case for a defendant when his application under Order 9, Rule 13 is called. Further, it is stated that, if such cause arises out of “practical difficulties and exigencies” that an ordinary person, even a plaintiff or defendant to the case could, then the court may take the cause into consideration and exercise its discretion to set aside the dismissal, thus allowing the case to be restored and proceed further.

It was also mentioned that if there was no provision like that of Order 9 Rule 9, the plaintiff would have undergone irreparable loss considering the rule of dismissing the suit, even when there was sufficient cause for his/her non-appearance. Thus, if there was no such Rule wherein a plaintiff could make another application for the dismissal of his/her suit, the loss would be quite significant. This would be the same as if Order 9 Rule 9 never existed or if there was no application made in the first place. 

Considering all this, it is reasonable to reach an inference that the legislature, while passing the Civil Procedure Code in 1908, intended to prevent such a loss for the individual against whom the court had decided (passed an order for dismissal for non-appearance). Having said this, there are a few other pointers on importance of Order 9 Rule 9 that one should study and they are as follows:

Aids in restoration of a previous application

Under Order 9 Rule 9, the plaintiff gets a chance to apply for restoring a suit that was previously dismissed for non-appearance, provided reasonable cause is shown to the court and the court affirms it. Such a provision helps in ensuring that any individual who had a valid reason for not showing up in the court when the case was heard gets a second opportunity to have his/her case heard. This, in turn, helps the plaintiff’s case from being dismissed permanently.

Helps in setting aside an order that dismissed restoration of application

If the plaintiff provides sufficient cause to the court and the court opines that the reason was valid, it has the right to review the dismissal of the suit under Order 9 Rule 9.

Providing fair and just treatment

Order 9 Rule 9 acts as a mechanism for not dismissing cases simply because the plaintiff was unable to attend the court’s hearings due to some unforeseeable situation. By having such a provision under the CPC, the lawmakers (who enacted such a provision) ensured that the plaintiff does not pay a hefty price for non-appearance and that his/her right to be heard is preserved. Such a provision leads to a fair and just judicial procedure and acts as a balance between equity and efficiency when it comes to cases in civil litigation under the CPC.

Intention behind Order 9 Rule 9 CPC, 1908

Now we know, Order 9 Rule 9 addresses situations wherein the court may proceed with the case even in the absence of the plaintiff. This Rule states that if the plaintiff does not appear on the fixed day of hearing, the court, upon its discretion, may dismiss the suit; unless, the plaintiff upon being summoned shows there was sufficient cause for non-appearance.

The main intention behind such a Rule is to make sure that the parties diligently pursue their cases and appear in front of the court as and when required. Further, the dissection of the court as to whether or not the suit should be dismissed can be exercised if the plaintiff does not successfully provide reasonable justification for his/her non-appearance. Having said that, if the plaintiff provides valid reasons, the court may set aside the order of dismissal and proceed with the suit, thus giving a fair chance to the plaintiff.

Understanding the application process and its nature under Order 9 Rule 9 CPC, 1908

An application which is filed under Order 9 Rule 9 must not be treated as an interlocutory application. An interlocutory application can be defined as a request made on behalf of one party asking the court to pass an order to assist with the preparation or procedure of the court. Well, it is not a fact unknown, that court proceedings barely go smoothly, thus, interlocutory applications play their part in allowing to seek order to help keep the case right on track and protect one’s right in some or the other way.

This application does not, in any manner, resemble a pending suit. By its nature, an application filed under Order 9 Rule 9 is an independent application which is registered as an independent miscellaneous judicial case.

Limitation period for filing a second application for restoration

Generally, one can file an application for restoring a case under Order 9 within 30 days from the date of dismissing the case under Article 122 of the Limitation Act, 1963. But one may wonder what exactly would be the limitation period for filing an application under Order 9 Rule 9, wherein the case was dismissed for default? 

Well, in the case of Brijmohan vs. Raghoba (AIR 1932 Nag 101), it was held that an application for restoration which was dismissed for default could be entertained under the inherent powers granted to the court under Section 151 of the CPC. Further, it was also stated that Section 151 did not come under the purview of the Limitation Act. Having said that, it does not mean the party can be carefree and guilty of laches, meaning they have to show integrity and be sincere and not approach the court with dirty hands.

Whereas, in the case of Komalchand Beniprasad vs. Pooranchand Moolchand (1969), when the suit is set aside by referring to Section 151, the question of limitation does not occur. Further, this Section does not pertain to any application, neither does it talk about any procedure for any application, rather it is a provision that mentions the inherent powers enstated in the court to act ex debito justitiae (meaning, from or as a debt of justice, as a matter of right) and thus can be set aside without any such limitation period.

Remedies under Order 9 Rule 9 CPC, 1908

Application to set aside the dismissal

If a suit is dismissed under Order 9, Rule 8 and the plaintiff wants to question the same, an application can be filed under Order 9 Rule 9. The application will be for setting aside the dismissal, here, the plaintiff has to show sufficient cause for non-appearance when the case was called for hearing. If the court is satisfied that the reason was just and a fair chance can be given to the plaintiff, the court can set aside the dismissal order and appoint a day to proceed with the suit.

Application for restoration of original application

If an application under Order 9 Rule 9 is dismissed for default, the plaintiff under Order 9 Rule 9, read with Section 141 of the CPC has the right to file another application to restore the original application. In such matters, the plaintiff is obligated to provide proper reasons for being absent when the original application was scheduled to be heard.

Postponing the hearing

The plaintiff can also appeal the restoration of the original dismissed application under Clause (c) of Order 43 Rule 1, of the CPC as both the remedies (i.e., Order 9 Rule 9 and Clause (c) of Order 43 Rule 1) are concurrent and can be restored simultaneously, and that none of them excludes the other. If an appeal is filed, the court can postpone the hearing until the application under Order 9 Rule 9 is decided.
Please note: The scope of both these proceedings are quite distinct.

Specimen of application under Order 9 Rule 9 CPC, 1908

APPLICATION FOR RESTORING SUIT WHICH WAS DISMISSED IN DEFAULT OF THE PLAINTIFF ONLY.IN THE COURT OF MR. PATEL, LEARNED CIVIL JUDGE 1st CLASS, BOMBAY HIGH COURTApplication no. 45 of 2024Under Order 9 Rule 9 of the Civil Procedure Code, 1908, inCivil Suit no. 34  of 2024Mr. Peter Griffin ………………………… (Plaintiff)vs.Mr. Glenn Quagmire …………………… (Defendant) Application for restoring of the suit dismissed in default on 25th September of 2024 Hon’ble Sir/Madam,The Plaintiff most respectfully sheweth:That the above noted civil suit was fixed for hearing for the purpose of arguments on 25th September of 2024.When the aforementioned case was called up for hearing at 11 a.m., the Plaintiff, Mr. Peter Griffin, went to call his Counsel Mr. Cleaveland Brown, who was not available at his seat during that time, and was in Court Room no. 004 arguing another matter which was informed by the Plaintiff to the Court.However, the Learned Court dismissed the same in default of the Plaintiff.GROUNDSThat the Applicant and the Counsel could not put up an appearance before the Court on 25th September of 2024, due to the arguments put forth by the Plaintiff’s Counsel in Court Room no. 004 related to another matter.That the non-appearance of the Plaintiff was neither willful or intentional, but for the good and sufficient reasons hereinabove stated.That the Interest of justice therefore, demands that the case may be restored to its original position so that the substantial dispute involved in the case can be adjudicated upon on its merit by this Learned Court. PRAYERIt is, therefore, most respectfully prayed that the Learned Court allow this application and that the aforementioned case be restored to its original position in the interest of justice. It is also prayed that the Learned Court may further pass any such orders as it deems fit considering the facts and circumstances of the case. ApplicantThroughMr. Cleaveland Brown(Advocate, High Court) Place : _____________________Dated : _____________________Affidavit in support of the application to be filed.

Case laws on Order 9 Rule 9 CPC, 1908

Smt. Seba Agarwal & Ors. vs. Kapildeo Narain Agarwal & Ors. (2004)

In this civil revision application, a judgement for dismissing an appeal given by the 1st Additional District Judge, Sahebganj was questioned by the petitioners (i.e., the plaintiffs in the case) in the Jharkhand High Court. The petitioners had filed a suit for praying relief for granting mandatory injunction for vacating the suit house and for a permanent injunction to restrain them from disposing of the plaintiffs. 

In this case, the petitioners contended that their previous attorney did not take proper legal actions/steps to ensure smoother proceedings, and that, due to such negligence the prior suit was dismissed. Then, the petitioners did not succeed in recalling this order and were suggested to file a miscellaneous case under Order 9 Rule 9. However, the plaintiffs failed to appear in front of the court due to some unforeseeable circumstances, whereas, one witness appeared on behalf of the defendant. Considering this, the court passed an order against the petitioners and stated they are “lethargic litigants” and did not approach the court with “clean hands” thereby dismissing the miscellaneous case. Aggrieved by this, a miscellaneous appeal was filed in the District Court, Sahebganj, and it was disposed of by the judge, reiterating the same reasons.

Then, the petitioner approached the High Court wherein the learned counsel for petitioners submitted that these aforementioned orders of the court are “unsound, improper” and that they were passed in an illegitimate exercise of jurisdiction. As per the counsel, only the sufficient cause for non-appearance under Order 9 Rule 9 must be taken into consideration, whereas, the courts did not mention the same in the order of dismissal. Instead, the courts considered the past conduct of the petitioners and acted hypothetically giving reasons that were not relevant under Order 9 Rule 9. The learned counsel appearing for the defendants contended that the order was apt and legal and the plaintiffs have been quite negligent in not attending the proceedings of the court, on several dates. 

The Jharkhand High Court held that there was no finding as such by the court on sufficient cause for non-appearance and that the courts were thereby influenced by “improper and extraneous considerations” while passing the order of dismissal and thus set aside the previous order. The court also stated that the hearings be expedited as the case was very old and preferably be disposed within a span of 6 months. But, the court also ordered the petitioner to pay a sum of ₹7500/- to the defendant for the loss and inconvenience caused to them. Further, the court directed that the same must be paid within a period of one month from the date the order was passed.

P.D. Shamdasani vs. The Central Bank Of India Ltd. (1937)

In this case, the Bombay High Court reached an inference that an application for restoration should only be rejected if there is a gross negligence or carelessness on the side of the plaintiff (i.e., whose suit has been dismissed). Here, in this case, the suit of the plaintiff was dismissed considering the non-appearance, but the plaintiff reappeared later on the same day with a justifiable reason for being absent at the time of the hearing. The Bombay High Court reached an inference that if the plaintiff has a reasonable explanation for non-appearance and has appeared on the same day with the justification, the court has the right to exercise its discretion in the plaintiff’s favour and restore the case. Such a judgement sheds light on the importance of providing a just and fair treatment allowing cases to be restored when the plaintiff has valid reason for his/her absence.

Rama Shankar vs. Iqbal Husain (1932)

In this case, an application under Order 9 Rule 9 for restoration of a suit was dismissed by the Judge of Small Cause Court, Aligarh, stating that the plaintiff was called twice but did not appear in front of the court. However, the plaintiff, immediately filed an application for restoring the suit and swore to an affidavit on the same day that he was present in the court when the case was called up for hearing but went to search for his counsel. However, when he came back, he discovered that the suit was dismissed for default. The Allahabad High Court held that the justification was apt and reasonable and thus set aside the dismissal order. 

M. Venkatachariar vs. Moulvi Mahammad Faizuddeen Sahib (1939)

In this case, the Madras High Court stated that when a petition under Order 9 Rule 9 had not been dismissed for default, there would be no petition to reopen the previous order and that if a petition lay at all, it would presumably be a review petition. Here, an application suit was dismissed, a case was filed and the same was restored by the Madras High Court. However, the court faced a question here- Whether or not Order 9 was applicable to suits or whether by reasons under Section 141 (miscellaneous proceedings) was applicable to applications made under Order 9 itself. 

Here, the judge stated that, an application filed in accordance with Order 9 Rule 9, is not an original matter, meaning it cannot be treated like a new case, as the original suit is no longer on the file. Rather, it talks about an independent suit which has to be ascertained on the basis of new evidence and will be not so related to the original case.

Salar Beg Saheb vs. Karumanchi Kotayya (1925)

In this case, a question directly came in front of the Madras High Court which was, whether or not a second application for restoring the previous application (i.e., the first application) which was dismissed for default, was legally valid under Order 9 Rule 9. The court held that the second application was, indeed, competent. However, the same could not be filed under Order 9 Rule 9. Such a distinction sheds light on the fact that while a second application is allowed to be filed, it cannot be based on the same rule that was previously stated; rather, it has to be based on a different legal provision.

Shekhar Verma vs. Raj Gupta and Ors. (2018)

In this case, Justice Raj Mohan Singh, in the Punjab-Haryana High Court mentioned that it is a settled principle that if any suit is dismissed under Order 9 Rule 8, the party cannot file a fresh suit under Order 9 Rule 9. The only exception being that the order for dismissing the suit is set aside. Then, any second or additional suit on the same cause of action or with some minimal changes in the suit, would not create any inclusion regarding cause of action, thus it is forbidden to file a new suit under Order 23 Rule 1 (4).

The court reached an inference that simply creating an illusion with respect to a new cause of action by making some slight changes in the application, like cancelling a licence of the defendant and insead issuing a legal notice will not give rise to a different cause of action as the relief thus sought will be the same (i.e., mandatory injunction for possessing the premises from the defendant, as mentioned in the case).

So, if both the suits share identical relief claims and have more or less the same parties involved, then the second suit would also not be allowed to be filed. This, in turn, helps stop the plaintiff from avoiding the legal procedures by making some minimal changes in the plaint. Such a judgement sheds light on the importance of finality in dismissing particular cases and the need  for a more stringent legal procedure during civil litigation, which in turn will help ensure that correct procedures are followed by all the parties to the case.

Conclusion

We can safely conclude by saying that, Order 9 Rule 9 of the Civil Procedure Code, 1908, plays a crucial role in maintaining efficiency and fairness in the civil litigation process. Further, it makes sure that, if the court has dismissed the plaintiff’s case on the ground of non-appearance and the plaintiff had reasonable justification for the same, the plaintiff has the right to be heard and the court can revoke the dismissal if it deems fit. This ensures that the court has provided the plaintiff a just and fair chance to put forth his/her genuine reasons and proceed with the case thereby not being punished for non-appearance and preserving their right to be heard and making sure justice is accessible to all.

Frequently Asked Questions (FAQs)

Can a fresh suit be filed after dismissal of the previous suit under Order 9 Rule 9 of the CPC, 1908?

No, once the court has dismissed a suit under Order 9 Rule 9, the plaintiff is forbidden from filing a new suit on the same cause of action. But, the plaintiff can, under this Rule, file for restoration of the same suit, provided he/she satisfies the court with sufficient cause and reasonable justifications.

What is ‘sufficient cause’ for non appearance under Order 9 Rule 9 of the CPC, 1908?

The term ‘sufficient cause’ for non-appearance means the date upon which the plaintiff did not show up in the court at the time of the hearing and that was made a ground for proceeding ex parte, which cannot be stretched to rely upon other circumstances anterior in time. Under Order 9 Rule 9, there is a provision which states that an order for setting aside the dismissal of a suit can be passed, if the plaintiff provides the court with ‘sufficient cause’ stating, rather justifying his/her non-appearance.

Is there a limitation period for filing an application for restoration of a dismissed suit under Order 9 Rule 9 of the CPC, 1908?

Yes, under Article 122 of the Limitation Act, 1963, a new application for restorating a dismissed suit under Order 9 Rule 9 has to be filed within 30 days from the date of dismissal of the original suit. 

For more details on this, please refer to the ‘Limitation period for filing a second application for restoration’ heading.

References

• https://cdnbbsr.s3waas.gov.in/s3ec05abdeb6f575ac5c6676b747bca8d0/uploads/2024/01/2024010584.pdf 
• https://bharatchugh.in/2023/03/09/suit-dismissed-for-default-restoration-application-also-dismissed-for-default-what-are-the-remedies-available/ 
• Brijmohan vs. Raghoba (AIR 1932 Nag 101)