civil law
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This article is written by Shivangi Tiwari, a second-year student pursuing B.A.LL.B. from Hidayatullah National Law University, Raipur. This is an exhaustive article dealing with Appearance and Non- Appearance of parties.

Introduction

Appearance and non-appearance of the parties in a civil suit is the important factor upon which the fate of any case depends. A mere non-appearance of a party in front of the court on a determined day may result in an adverse decision with respect to the non-appearing party. The general provisions contained in the Civil Procedure Code of 1908 is based on the principle that no proceedings which are detrimental to the interest of any of the parties to the suit shall be conducted in the court of law. It is the duty of the parties to the suit to show up before the court of law on a due date which has been fixed by the court. In case of non-appearance of any of the parties to the suit, the judgement of the court may turn in favour of the party appearing in front of the court. However, in situations where a suit is determined irrespective of the fact that any of the parties to the suit are absent on the due date. Then, the non-appearing party in order to safeguard its interest can revive the suit by following the provisions of Civil Procedure Code, 1908.

The provisions with respect to the consequences in case of non-appearance of parties and other related provisions are contained in the Order IX of Civil Procedure Code, 1908. The rules regarding the consequences of appearance and non-appearance of parties to the suit under the Order IX of CPC are as follows:

  • Rule 2– the consequences of non-deposition of fees by the plaintiff.
  • Rule 3 and Rule 4–  the consequences of non-appearance of both the parties to the suit.
  • Rule 8, Rule 9 and Rule 9(A)– consequences of non-appearance of the plaintiff to the court of law.
  • Rule 6, Rule 13 and Rule 13(A)– provisions with respect to non-appearance of the defendant to the court of law. 

Appearance of parties

The word “appearance” under civil cases has a well-known meaning. It means the appearance of the party to the suit before a court of law. The appearance can be by the party in person or through his advocate or through any person along with the advocate of the party.

The mere presence of the party before the court of law is not what the word “Appearance”  under the Order IX of the CPC,1908 means. But the word “appearance” under CPC means the appearance made by the pleader who is able to answer all the material questions which are relevant to the judicial proceedings in question before the court of law in a duly prescribed and recognized manner and on the date allotted by the court to each party unless the court has adjourned the proceedings of the case to some other day.

Rule 1 of Order IX is related to the appearance of the parties on the date of first hearing of the case. It declares the mandatory presence of the parties before the court of law on the day fixed by the court under the summon issued on the defendant.

According to Rule 2 of the Order IX, the failure on the part of the plaintiff to submit any processing fee determined by the court of law on any stipulated date. Then such a failure would result in the dismissal of the suit by the court. However, no such dismissal to the case can be made where the defendant in person or through his agent attend the proceedings of the court and answers all the material questions possessed by the court.

Where neither party appears

Rule 3 and Rule 4 of Order IX of Civil Procedure Code, 1908 deals with the cases where neither of the parties in a case appears before the court of law on the date fixed by the court of law. According to Rule 3 of the Order IX of CPC. In such a case, the suit shall be dismissed by the court and according to Rule 4, the plaintiff can file a new suit in the court of law if he is able to satisfy the court that there was a sufficient cause for his non-appearance in court.

In Damu Diga v. Vakrya Nathu, the plaintiff sued the defendants, D1 and D2. on the date fixed by the court for appearance of the parties to the suit only D2 appeared in the court. The subordinate court erred while passing the order of dismissal of the case. However in an appeal against the decision of the court. It was held that the present case comes under the purview of Rule 4 of Order IX of CPC and court should take into consideration the fact that not only the plaintiff in the case was absent from the proceedings. But, defendant number 1 was also absent and the according to Rule 4, the court must allow the plaintiff to apply for an order setting aside the dismissal of the case by the court.

Where only the defendant appears

Rule 8 of the Order IX of the CPC talks about the legal consequences of the non-appearance of the plaintiff and the appearance of the defendant in the court of law. According to the rule, in a case where the defendant makes an appearance in the court of law on the due date and the plaintiff remains absent from the proceedings. The court shall make an order of dismissal of the case unless the defendant admits a claim or parts thereof as in such a case the court can pass a decree against the defendant upon such admission or where only the part of the claim is admitted. If the case of the plaintiff has been dismissed by the court under Order IX of the CPC then the plaintiff has two options to revive his case in the court of law. Which are as follows:

  • The plaintiff can file a fresh suit in the court of law if the same has not been barred by any law in force; or
  • The plaintiff can file a petition under Rule 4 of Order IX of Civil Procedure Code, 1908. According to Rule 4 of the Order where a case has been dismissed in pursuance of Rule 2 or Rule 3 of the Order IX then the plaintiff can apply for an order for the dismissal of the case by the court.

In the case of The Secretary, Department of Horticulture, Chandigarh and Anr. Vs. Raghu Raj, the court held that the plaintiff should not suffer because of the non-appearance of the counsel appointed by him with good faith that he will make an appearance without any reasonable cause in the court of law whenever the plaintiff is called for in the court. As such non-appearance by the counsel representing the plaintiff without any reasonable cause is not only unprofessional and unfair to the plaintiff but is also unfair and discourteous towards the court of law. And so the plaintiff should not suffer because of the fault of the counsel he has hired in good faith.

Where a summons is not served

Rule 6 of Order IX, when the plaintiff is present but the defendant is absent on the date of peremptory hearing on a prescribed date. According to Rule 6 of Order IX, when the plaintiff is present but the defendant is absent on the date of peremptory hearing on a prescribed date of hearing then the court takes the decision about the consequence of such non-appearance with respect to the status of summon which is served to the parties in the case by the court of law. Following are the consequences of non-appearance of the defendant and the appearance of the plaintiff with respect to varying statuses of the summon which is served: 

  • In the case where the summon is duly served the court can declare that the suit shall be heard ex-parte;
  • In the case where the summon is not duly served then, the court can order the issue of a second summon and that the same to be served to the defendant;
  • When the summon is served to the defendant but the sufficient time was not given to him to make an appearance in the court of law and answer the material questions in the case on the day fixed by the court. The court shall postpone and fix the hearing of the case to some other day which shall be notified to the defendant;
  • When in a case the delay in issuance to the defendant is caused due to the fault of the plaintiff, the court may order the plaintiff to pay the costs occasioned by the delay in the proceedings.

Ex parte decree

Rule 6(1)(a) of Order IX of the Civil Procedure Code empowers the court to pass any judgement ex parte in case the defendant party in a case absents himself from the proceedings on the due date fixed by the court of law which has been informed to him by the summon duly served on him of the case. An Ex parte decree is neither void nor inoperative but it is voidable at the option of one party which may seek the order of annulment of the decree.

Remedies

The Code provides the following remedies to the defendant against whom an ex parte decree by the court has been passed:

  • An application under Order IX, Rule 13 of the Code;
  • Annulment of the decree under Section 12 of the Code by proving that the decree has been obtained on the ground of any of the vitiating factors like a fraud;
  • Filing of a review petition under Section 114 of the Code;
  • Filing the application for rehearing of the case on the grounds of violation of the principles of natural justice;
  • Filing of an appeal under Section 96 of the Code.

Setting aside ex parte decree

Rule 13 of order 9 of the Civil Procedure Code contains provisions related to Setting aside of the Ex parte decree passed by the court. The Rule specifies that the defendant against whom the ex parte decree has been issued can apply for setting it aside. In case there are more than two defendants any one or more than one defendant can apply for setting it aside. 

The court in the case of Santosh Chopra V. Teja Singh held that the meaning of the expression “defendant” under the Rule is wide enough to include a person who is adversely affected by the ex parte decree and therefore, even a purchaser of mortgaged property can make an appeal of setting aside an ex parte decree.

An application for setting aside the ex parte decree can be filed in front of the court which has passed such an order. However, in a case where the ex parte decree has been affirmed by any superior court then the appeal for setting aside the decree can be made in that superior court. The following are the grounds for applying for the order of setting aside decree against the ex parte judgement of the court:

  • The defendant has to prove in front of the court of law that the summon was not duly served on him: Rule 6 of order 9 mandates that an ex parte order against the defendant can be passed by the court if the plaintiff is able to prove in the court of law that the defendant has absented himself from the proceedings of the court even when the summon was duly served on him.
  • The defendant has to prove in front of the court that there was a sufficient cause which prevented him from appearing in the proceedings on the due date: The term “sufficient cause” is nowhere defined under the code and therefore, the meaning of the term ‘sufficient cause’ has to be determined by the courts liberally keeping in view the facts and circumstances of the case. No party should be condemned unheard unless there has been something equivalent to misconduct or gross negligence on his part.

Appeal

Section 96 to 112 of Part VII of the Civil Procedure Code, 1908 deals with an appeal. Appeal means the removal of a cause from a subordinate court to a superior court in order to test the soundness of the decisions passed by the inferior court. It is the continuation of original proceedings before the superior court which is approached. The superior court need not always be high court as it can even be a subordinate district court. Following people can file an appeal against any order in the court of law:

  • Party to the suit who has been adversely affected by the orders of the case;
  • An auction purchaser in the exercise of a decree in order to annul the purchase on the grounds that he was defrauded or so on;
  • Any person who is bound by any decree which operates res judicata against him and the person has been allowed by the appellate court to file an appeal.

The right of appeal empowers the superior court to rehear the whole dispute unless it has been expressly prohibited under any of the statutes. The superior court is not bound by the ratio decidendi of the subordinate court based on which the judgement was passed by the court. According to Section 96 of the Civil Procedure Code, an appeal can lie against all the decrees passed in exercise of civil jurisdiction exercised by the court. However, this Section is not applicable to the following decrees:

  • Consent decree,
  • The decree passed by the court under Section 9 of the Specific Relief Act,
  • A final decree passed by the court, the preliminary decree of which was not challenged.
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Revision

The dictionary meaning of the word revise is to examine something again in order to improve its present state. Revision is the act of revising anything. Section 115 confers the revisional jurisdiction to the High courts in the country. Under the revisional jurisdiction, the High Courts can entertain any revisional petition filed by any party which is aggrieved by any judgement, order or decree passed by any subordinate court in the country. The limitation period for filing any revisional petition against any order, decree or judgment is 90 days from the passage of such an order, decree or judgement. The main objective behind the incorporation of the provision of revision petition against the order of the subordinate court is to prevent them from acting arbitrarily, capriciously, and unlawfully by ensuring the check on their actions by the High courts. The following conditions are required to be satisfied before the exercise of the revision jurisdiction of the courts can be made by the High Courts:

  1. The judgement of the case must be passed by a court of competent jurisdiction;
  2. The court which has decided the case must be subordinate to the High Court;
  3. The order which is passed by the court must be the one against which an appeal can be made;
  4. The court passing the judgement must have exceeded the jurisdiction vested upon him, or has failed to exercise the jurisdiction vested on it.

Review

The literal meaning of the review is to study or examine something again. In the legal sense, the meaning of review is to examine the facts and judgment of any case again. The power of review of facts and judgments are vested only on the courts. The provisions with respect to review are contained in Section 115 of the Civil Procedure Code. There are no specific conditions or limitations specifically provided for review. Under Section 115 of the Civil Procedure Code. However, order 47 of the Civil Procedure Code provides for the limitations and conditions with respect to the review of the cases. The Supreme Court Rules, 1966, provides that the limitation period for filing a review petition against any decision passed by the court is 30 days from the date of passage of such an order.

The grounds for review of judgement are as follows:

  • When the applicant discovers a new evidence material to the determination of judgment of the case which due to negligence or any other reason was not able to present the evidence in front of the court of law when it passed the decree;
  • The order of review is passed only in such cases where the error is in the face of records and not with respect to the facts of the case. What constitutes the face of records has to be determined by the courts on a case to case basis keeping in view the facts and circumstances of the case;
  • Any misconception on the part of the court may be regarded as a sufficient cause to review the judgement.

Suit

The word review has not been defined under the provisions of the Civil Procedure Code but by the various judgements passed by a court of law, the meaning of the term suit ordinarily means the civil proceedings initiated by the means of the institution of plaint. The decree is the outcome of a suit as without suit there can not be any decree issued. There are four essentials of a suit. Which are as follows:

  • Name of parties: In any suit, there have to be two parties contending different claims. One is the defendant and the other is the plaintiff party. There is no limitation on the number of people representing either of the parties.
  • Cause of action: Cause of action is the set of facts and circumstances which a plaintiff has to prove. Any person becomes a party to the suit when the cause of actions are proved against him. Cause of action is basically the set of those events, acts and circumstances which results in the institution of civil proceedings in the court of law. Every plaint must essentially disclose the cause of action and if a plaint fails to disclose the same then the court shall reject such a plaint.
  • The subject matter of the case: There must be an express declaration of the subject matter of the case which basically is the reason for the filing of the plaint and thus, bringing the matter in front of the case. Section 9 of the Civil Procedure Code empowers the court to try all the cases unless they are expressly or impliedly barred from being tried by the statutes.
  • Relief: Relief is the compensation or damages which are paid to the plaintiff by the defendant on the express orders of the court to do so. The courts are not obliged to provide relief to the plaintiff unless he has expressly asked for it. Reliefs are of two types which are alternative relief and specific relief.

Conclusion

The concept of appearance and non-appearance of the parties in the civil suit is the basic concept on which the ultimate fate of each and every case depends upon. On one hand, the courts are free to dismiss any case in the case of non-appearance of any party to the suit which is also the need of the hour keeping in view a large number of cases which are pending in the courts. But at the same time, the courts are bound to continue the proceedings even in the cases where the non-appearance of any party is due to any special circumstances established by such a party. This is important in order to uphold the ultimate objective of every judicial system which is the welfare and creation of an egalitarian society.

References


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