Appearance and Non-Appearance of Parties || Order 9 || CPC ||
In this article, we are going to discuss what is the appearance? What are the effects of the appearance and non-appearance of the parties to the suit under Order 9 of the CPC? And what are the consequences of the non-appearance of the parties? Etc.
Let’s begin.
Introduction:-
Appearance and non-appearance of the parties is an important part of the suit which determines the result of the suit. The provisions of the code are based on the general principle that, as far as possible, no proceeding in a court of law should be conducted to the detriment of any party in their absence. The Code provides the provisions under Order 9 with regard to the appearance and non-appearance of the parties and their consequences. It also provides the remedy for setting aside an order of dismissal of the suit and also the setting aside of an ex-parte decree passed against the defendant.
Appearance:-
The word appearance means an appearance in person or through an advocate for conducting a case in the court. So, the appearance may be by a party himself in person or by an advocate or by a party in person along with his advocate.
Appearance of the parties; Rule 1 and Rule 12:-
Rule 1 of the Order 9 of CPC requires the parties to the suit to present in the court in person or by their pleader on the day fixed in the summons for the defendant to appear.
While Rule 12 says that where the plaintiff or defendant, who has been ordered to present in person, does not appear in person or show sufficient cause for non-appearance, the court may, dismiss the suit if he is the plaintiff, or proceed ex-parte if he is the defendant.
Effect where neither party appears; Rule 3:-
Rule 3 provides that where neither plaintiff nor the defendant appears when the suit is called out for hearing, the court may dismiss it. Rule 4 provides that dismissal of the suit under Rule 3 does not bar a fresh suit in respect of the same cause of action.
Effect where only plaintiff appears; Rule 6, 10:-
Rule 6 provides that where the plaintiff appears and the defendant does not appear, the plaintiff has to prove the service of summons on the defendant and if it is proved, the court may proceed ex parte against the defendant and may pass a decree in favour of the plaintiff, if the plaintiff proves his case.
Sangram SinghV. Election Tribunal, AIR 1955 SC 425;
It was held that this provision is confined to first hearing and does not per se apply to subsequent hearings.
Remedies:-
If an ex-parte decree is passed against the defendant then the defendant may apply for setting aside the ex parte decree under Rule 13 Order 9 of CPC. For a detailed study of the ex parte decree:- click here.
Where only defendant appears Rules 7-11:-
Rule 8 provides that where the defendant appears and the plaintiff does not appear, and the defendant does not admit the plaintiff’s claim, wholly or partly, the court shall pass an order dismissing the suit.
But rule 8 enacts that if the defendant admits the plaintiff’s claim as a whole or a part of it, the court will pass a decree against the defendant upon such admissions and dismiss the suit for the rest of the claim.
Remedies:-
If a suit is dismissed under Rule 8 then the plaintiff has two remedies to revive his dismissed suit, which are as follows:-
i)Filing a fresh suit before thecompetent court, if the suit is not barred by law; and
ii)The plaintiff may file a petition under Rule 4 of Order 9 to set aside the order of the dismissal of the suit
Conclusion:-
Jurisprudence Previous Years Questions 2018-2022 in three Parts with the explanation of each option click here to see:- UGC NET LAW PYQs Jurisprudence
Hence, appearance and non-appearance of the parties have a great impact on the civil proceeding. It is the duty of the parties to appear before the court at the time fixed by the court to appear and helps the court to settle the dispute, otherwise, the absent party may suffer and not entitled to get justice.
