JAMIA MILLIA ISLAMIA

FACULTY OF LAW

CODE OF CIVIL PROCEDURE -II (ASSIGNMENT)

On
CONSEQUENCES OF APPEARANCE AND NON-
APPEARANCE OF PARTIES AND REMEDIAL MEASURES

SUBMITTED TO: - SUBMITTED BY:-

ADVOCATE MADHU SAINI MAM MOHD YASIN
CPC-II B.A.LLB (HONS)
SEM-VIII, SEC-A
ROLL NO.-21
 ACKNOWLEDGEMENT
Exchange of ideas generates new objects to work in a better way. Whenever a person is helped
and co-operated by others, his heart is bound to pay gratitude and obligation to them.

I would like to thank my CPC Lecturer, Advocate Madhu Saini Mam for providing me with
invaluable support and guidance which led to the completion and conception of this project titled
Consequences of Appearance and non-appearance of parties and remedial measures.
 INTRODUCTION

The provisions of the code of Civil Procedure are based on a general principle that, as far
as possible, no proceeding in a court of law should be conducted to the detriment of any party in
his absence. Order 9 of the code enacts the law with regard to the appearance of the parties to the
suit and the consequences of their non-appearance. It also provides a remedy for setting aside an
order of dismissal of the suit as also the setting aside of an ex-parte decree passed against the
defendant. There are 14 Rules in total which deal with the appearance of the parties and
consequences of non-appearance.1

Appearance and non-appearance of parties during trial before the court is a crucial issue to
resolve civil dispute. Because, mere appearance or non-appearance can determine the ultimate
result of a civil litigation. The provisions of the Code of Civil Procedure (CPC), 1908 are based
on a general principle that, as far as possible, no proceeding in a court of law should be conducted
to the detriment of any party in his/her absence. Also, it is the duty of the concern party to the
aware of his rights, show vigilance towards the court and establish his/her claim by taking proper
measures.

In law, appearance means appearance in person or through advocate for conducting

a case. However, appearance by a pleader within the meaning of CPC does not mean mere presence
in the court, it means “appearance by a pleader” duly instructed and able to answer all material
questions.

UNDERSTANDING THE WORD “APPEARANCE”

The word “appearance” has a well-recognized meaning and means appearance in person
or through advocate for conducting a case. So, appearance may be by a party in person or by an
advocate or by a party in person along with his advocate. “Appearance” by a pleader within the
meaning of Order IX does not, as if appearance by a party in person means mere presence of the
court; it means “appearance by a pleader” duly instructed an able to answer all material questions
relating to suit.

1
C.K.TALWANI , “Civil Procedure with Limitation Act 1963” , Eastern Book Company,2013, p.275.
 Appearance of the parties: Rule 1 of Order IX deals with the provision of appearance of
the parties. On the day fixed in the summons for the defendant to appear and answer, the parties
shall be in attendance at the Court-house in person or by their respective pleaders, and the suit
shall then be heard unless the hearing is adjourned to a future day fixed by the Court. Rule 1
requires the parties to the suit attend the Courthouse in person or by their respective pleaders on
the day fixed in the summons for the defendant to appear. So, the rule relates to the appearance of
the first hearing of the suit. Thus, it is not sufficient for them to take any course, short of
appearance. It is not sufficient for the defendant to send a letter to the court or for his advocate
merely to file a Vakalatnama, while remaining absent.

Dismissal of the suit for the lacking of process fee by the plaintiff: If the plaintiff is failed
to deposit process fees to the court within the stipulated time stipulated by the court, then the suit
may dismiss as per Rule- 2 of the said Order. As per the language of the Code the provision is:
“Where on the day so fixed it is found that the summons has not been served upon the defendant
in consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any,
chargeable for such service, or failure to present copies of the plaint as required by Rule 9 of Order
VII, the Court may make an order that the suit be dismissed: Provided that no such order shall be
made, if, notwithstanding such failure, the defendant attends in person or by agent when he is
allowed to appear by agent on the day fixed for him to appear and answer he attends in person or
by agent when he is allowed to appear by agent”.

APPEARANCE OF THE PARTIES

RULE 1: Parties to appear on day fixed in summons for defendant to appear and answer. On the
day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance
at the court-house in person or by their respective pleaders, and the suit shall then be heard unless
the hearing is adjourned to a future day fixed by the court.

In MANIBHAI VS. AMBALAL,2 it was held that the parties must remain present before
the Court when the matter is called out. The court is not bound to wait for any party. The court
would be justified in disposing of the matter in absence of the party. But when the party appears
and gives satisfactory explanation for not remaining present, the court should take a lenient view

2
1987(1) GLR 557.
especially when the application for restoration or setting aside ex-parte decree is made on the same
day. The primary concern of the court should be to dispose of the cases before it on merits so as to
see that substantial justice is done. Disposing of the cases on technicalities especially the absence
of a party at a time when the suit is called out, may lead to considerable injustice. Therefore, the
court must consider the application for restoration especially when it is made soon after the
dismissal order in a practical and pragmatic manner so as to see that the ends of justice are not
defeated.

RULE 12: Consequence of non-attendance, without sufficient cause shown, of party ordered to
appear in person – where a plaintiff or defendant, who has been ordered to appear in person does
not appear in person or show sufficient cause to the satisfaction of the court for failing so to appear,
he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and
defendants, respectively who do not appear. Rule 1 requires the parties to the suit to attend the
court in person or by their pleaders on the day fixed in the summons for the defendant to appear.
Rule 12 provides that where a plaintiff or a defendant, who has been ordered to appear 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.

WHERE NEITHER PARTY APPEARS

RULE 3: Where neither party appears, suit to be dismissed-where neither party appears when the
suit is called on for hearing, the court may make an order that the suit be dismissed. In DAMU VS.
VAKRYA3 in a suit, A sues B and C. A and C do not appear when the suit is called on for hearing,
but B appears. The court makes an order dismissing the suit. As between A and B the order is one
under Rule 8, so as to attract the applicability of Rule 9. But as between A and C, the order is one
under the present rule, so that Rule 4 applies and not Rule 9.

Where the trial court, in its order dismissing the suit for default, merely referred to the
plaintiff’s absence and not to the defendant’s absence, the order must be construed to be one under
Order 9, Rule 3. The court cannot dismiss the suit in total merely to penalize the plaintiff for his
absence. Rules of procedure are to be so construed as to advance and not defeat the remedy. Mere

3
1920 ILR 44 Bom767, 56 IC 455
non-mentioning in the order of absence of either party would not take it out of the purview of Rule-
3.4 Unless a date has been fixed for the appearance of the defendant and neither party appears when
the suit is called on for hearing on the day fixed, this rule will not apply. This was held in RAM
RAMBIJAYA VS. SAKALPAT TWEARY.5 There can be no question of a suit being called on
for hearing, unless the parties had been served, and where that had not been done, the suit cannot
be dismissed under this rule for default of appearance of the plaintiff. This was held in RAM
REDDY VS. YENKA REDDY.6

WHERE ONLY PLAINTIFF APPEARS

RULE 6: Procedure when only Plaintiff appears-

1. Where the plaintiff appears and the defendant does not appear when the suit is called on
for hearing, then –
a) When summons duly served – If it is proved that the summons was duly served,
the court may make an order that the suit be heard ex parte;

b) When summons not duly served – if it is not proved that the summons was duly
served, the court shall direct a second summons to be issued and served.

c) When summons served but not in due time- if it is proved that the summons was
served on the defendant, but not in sufficient time to enable him to appear and
answer on the day fixed in the summons, the
court shall postpone the hearing of the suit to a future day to be fixed by the court,
and shall direct notice of such day to be given to the defendant.

2. Where it is owing to the plaintiff’s default that the summons was not duly served or was
not served in sufficient time, the court shall order the plaintiff to pay the costs occasioned
by the postponement.

4
MULLA, “The Code of Civil Procedure” Vol.2, Lexis Nexis, Nagpur 2007, P.535
5
AIR 1942 Pat 56
6
AIR 1956 Hyd 139
 In RAFI vs. ABDUL AZIZ7 it was held that where the date of hearing is declared a holiday,
the court should not proceed ex-parte on the next working day. Fresh notice should be given. The
case was fixed for final hearing on a day which was subsequently declared to be a holiday. On the
next following day, the case was disposed of ex-parte without the consent of the parties. Disposal
was invalid.

RULE 10: Procedure in case of non-attendance of one or more of several plaintiffs- where there
are more plaintiffs than one, and one or more of them appear and the others do not appear, the
court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the
same way as if all the plaintiffs had appeared or make such order as it thinks fit.

In KULENDRA vs. KALI KISHORE8 two plaintiffs, A and B filed a suit on a mortgage.
A did not appear at the hearing in spite of an order of the court under O3, r1. B appeared and the
suit was heard and a decree was passed in favor of both A and B. It was held that this could be
done under this rule.
WHERE ONLY DEFENDANT APPEARS

RULE 7: Procedure where defendant appears on day of adjourned hearing and assigns good cause
for previous non-appearance- where the court has adjourned the hearing of the suit ex-parte, and
the defendant at or before such hearing, appears and assigns good cause for his previous non-
appearance, he may, upon such terms as the court directs as to costs or otherwise be heard in
answer to the suit as if he had appeared on the day fixed for his appearance.

Adjournment for ex-parte hearing – later appearance of defendant- Good cause- Order IX,
Rule 7 empowers Court to allow the defendant to contest on good cause for his previous non-
appearance being shown, when at or before ex-parte hearing the defendant appears.

In GAVICCI VS. UNION BANK OF INDIA9 if the defendant was not present on a
particular date of hearing he has a right to appear on subsequent date of hearing. If the proceedings
had taken place in his absence on a previous date of hearing he has to show good cause for his
absence if he wants to get the proceedings taken by the court in his absence set aside but if no

7
AIR 1987 All 117
8
AIR 1921 Cal 176.
9
1986 1 Cur Civ Cas 559 (Del)
proceedings were taken by the court it is not necessary for the defendant to show any good cause
or to get the previous order aside.

In SUNIL KUMAR & ORS. Vs. PRAVEEN CHAND & ANR 10 where contention of the
defendant was that the defendant’s counsel could not attend the court due to illness resulting in
passing the ex-parte order in the matter and the facts of the case showed that the cause pleaded by
the defendant for setting aside the ex-parte order appeared to be good cause and since the
application was filed within 17 days itself from the date of ex-parte order. So, the defendants may
suffer irreparable loss if the ex-parte order is not set aside, therefore, to meet the ends of justice,
ex-parte order was set aside and Trial Court was directed to decide the suit as early as possible.

RULE 8: Procedure where defendant only appears – where the defendant appears and the plaintiff
does not appear when the suit is called on for hearing, the court shall make an order that the suit
be dismissed unless the defendant admits the claim, or part thereof, in which case the court shall
pass a decree against the defendant upon such admission, and where part only of the claim has
been admitted, shall dismiss the suit so far as it relates to the remainder. If the defendant appears
and the plaintiff does not appear, the procedure laid down in the present rule is to be followed. All
that a defendant is entitled to under this rule to have the plaintiff’s suit dismissed. He is not entitled
to call any evidence, even though it is to disprove charges that may have been against him in the
plaint. This rule does not apply in case of non-appearance by reason of death.11

MORE PLAINTIFFS THAT ONE

In KULENDRA vs. RAI KISHORI, it was held that this rule provides for the case where
a single plaintiff or all the plaintiffs if there are more than one, do not appear.

RULE 10: provides for a case where there are more plaintiffs than one and one or more of them
appears and others do not appear.

10
AIR 1964 SC 993 at p. 1004
11
MULA “ The Code of C.P.”, P.553.
 MORE DEFENDANTS THAN ONE

If there are several defendants, of whom one appears, the suit will be dismissed against the
defendant who appears under order 9, rule 8 and the plaintiff will order 9, rule 9 be precluded from
bringing a fresh suit against him. But as against the defendants who have not appeared, the
dismissal will be under order 9, rule 3 and the plaintiff will under order 9 rule 4 be at liberty to
bring a fresh suit against them.12

RULE 9: Decree against plaintiff by default bars fresh suit:

1. Where a suit is wholly or partly dismissed under rule 9, 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.
2. No order shall be made under this rule unless notice of the application has been
served on the opposite party.

This rule provides for restoration of suits dismissed under rule 8 for non-appearance.
Where the dismissal was not for default of appearance, the rule is not applicable. The court gets
jurisdiction to consider an application under this rule only if an order has been passed under Rule
8.
Example: Where a suit for partition is dismissed as withdrawn order 9, rule 9 does not
apply. Such dismissal is not for default of appearance. 13 When a suit was dismissed for non-
appearance, this rule would have no application if the date of hearing had not been fixed or if the
same had not been notified to the plaintiff.14

12
A.N. Saha, “The Code of Civil Procedure”, Premier Publishing Co”, 2012, p 1551
13
BANERJEE’S commentary on the code of Civil Procedure, 1908, co. Allahabad, 2007 P.967.
14
JATINDRA KUMAR DAS, “Code of Civil Procedure”, PH1 Learning Publishers, 2013, p.362
 JUDICIAL PRONOUNCEMENT ON ‘SUFFICIENT CAUSE’

Rule 7 uses the expression good cause while rule 9 and rule 13 use sufficient cause. These
both terms are not equivalent to each other. What is sufficient cause in each case is a question of
fact.
1. A plaintiff left the court- house, believing that a part-heard case which preceded his case
would occupy some time; he returned in about half an hour, and found out that his suit had
been called on and dismissed owing to his absence. He then applied to set aside the order
of dismissal. HELD: Refusing the application that the above circumstances did not amount
to ‘sufficient cause’ for non-appearance. MANI LAL v. GULAM HUSAIN.15
2. Where it was the duty of an attorney’s clerk to examine every evening the board the next
day, and to inform his master what cases in which he was engaged as attorney were on the
board for hearing, and the clerk, neglecting his duty, did not inform the master, and no one
appearing for the plaintiff, the suit was dismissed. HELD: The absence was caused by a
bonafide mistake and the suit was restored on payment by the attorney of the costs of the
hearing.16

3. In two cases, CHHOTALAL vs. AMBALAL17 and SORABJI vs. RAMJILAL18 the H.C.
of Bombay said that the rule of practice to be observed in the subordinate courts in the
Bombay Presidency is that when a party arrives late before the judge, and finds that his suit
has been dismissed before his arrival, he is entitled to have his suit restored, though there
may be ‘no sufficient cause’ for his late arrival, on payment of such costs as may have been
incurred by reason of non-appearance by the defendant.

RULE 11: Procedure in case of non-attendance of one or more several defendants- where there
are more defendants than one, and one or more of them appear, and the others do not appear, the
suit shall proceed and the court shall, at the time of pronouncing judgement, make such order as it
thinks fit with respect to the defendants who do not appear.

15
AIR 1935 Lah 416.
16
ORDIENTAL CORN vs. MERCANTILE CORPN. LTD., AIR 2004 SC 1344
17
(1925) 27 BOMLR 685.
18
(1924) 26 BOMLR 321
 WHERE SUMMONS IS NOT SERVED

It is a fundamental rule of the law of procedure that a party must have a fair and reasonable
opportunity to represent his case. And for that purpose, he must have a notice of the legal
proceedings initiated against him. The service of summons on the defendant is, therefore, a
condition precedent to a fair trial. If the summons is not served on the defendant or it does not give
him sufficient time to represent his case effectively, no decree can be passed against him.

RULE 2: Where on the day so fixed it is found that the summons has not been served upon the
defendant in consequence of the failure of the plaintiff to pay the court-fee of postal charges (if
any) chargeable for such service, or failure to present copies of the plaint or concise statements, as
required by rule 9 of order VII, the Court may make an order that the suit be dismissed: Provided
that no such order shall be made, if, notwithstanding such failure the defendant attends in person
(or by agent when he is allowed to appear by agent) on the day fixed for him to appear and answer.

Rule 2 of Order 9 enacts that the suit may be dismissed where the summons is not served
on the plaintiff’s failure to pay costs for service of summons to defendant or to present copies of
the plaint. No such order, however, can be passed in spite of such failure by the plaintiff if the
defendant appears in person or by his authorized agent on the day fixed for him to appear. The
plaintiff may file a fresh suit even after the dismissal of the suit under Rule 2 in respect of the same
cause of action or may apply for an order to set aside such dismissal. And if the court is satisfied
that there was sufficient cause for such failure, the court shall set aside such order of dismissal and
shall fix a day for proceeding with the trial.

RULE 5: (1) Where after a summons has been issued to the defendant, or to one of several
defendants, and returned unserved the plaintiff fails, for a period of][seven days][from the date of
the return made to the Court by the officer ordinarily certifying to the Court returns made by the
serving officers, to apply for the issue of a fresh summons the Court shall make an order that the
suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied
the Court that-
(a) he has failed after using his best endeavours to discover the residence of the defendant,
who has not been served, or
(b) such defendant is avoiding service of process, or
 (c) there is any other sufficient cause for extending the time, in which case the Court may
extend the time for making such application for such period as it thinks fit.]

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

Where it is not proved that the summons is duly served on the defendant, the court will
direct a fresh summons to be issued and served on the defendant. Where it is proved that the
summons is duly served on the defendant but there was not sufficient time to enable him to appear
and answer on the day fixed in the summons, the court shall postpone the hearing of the suit to a
future day and give notice of such day to the defendant. Where the summons is not duly served or
is not served in sufficient time due to the plaintiff’s default, the court shall order the plaintiff to
pay the costs occasioned by such postponement.

REMEDIES AVAILABLE

If a suit is dismissed under Order IX then the plaintiff has two-fold options to revive his
dismissed suit. Those are as follows:
i) Filing a fresh suit before the competent court, if the suit is not bar by law and
ii) The Plaintiff may file a petition under O-IX, R- 4.19
This petition under O-IX, R- 4 is one type of miscellaneous case. The case should be filed
within 30 days from the date of cancellation of such suit as per Art. 162 of the Limitation Act.
However, after the expiry of 30 days the case may be filed by virtue of Sec. 5 of the Limitation
Act. The words “Sufficient Cause” has not been defined and it will depend on facts and
circumstances of each case.20 Mistake of pleader in noting wrong date in diary, late arrival of train,
inability due to illness or accident etc. or his non availability for justifiable reasons are sufficient
grounds for setting aside the decrees.

Order IX of the Code contains provision for restoration of the suit dismissed for default as
well as for the setting aside of the decree passed ex parte against the defendant vide Rules 9 and
13 thereof, if plaintiff or defendant, satisfies the court that there was sufficient cause for his non-

19
Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may bring a fresh suit, or he may apply for an order
to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for,or for his nonappearance, as
the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with
the suit.
20
UCO Bank v. Iyengar Consultancy Services (1994) SCC 399 (Supp).
appearance when the suit was called for hearing. What is a “sufficient cause” for non-appearance
has not been defined in or by any jacket formula but has been left to be tested, considered and
decided by the court in the context of facts of a particular case keeping in view the basic principles
of justice, equity and good conscience and the object of all rules of procedure.

All the rules of procedure are made and do exist to substantiate the cause and course of
justice and not to hamper or obstruct its flow, so sufficient cause has to be judged and determined
in each case with justice-oriented concept in the light of the facts of each case. The suit was decreed
ex parte when counsel stated that he has no instructions without sending notice to the defendant.
The defendant filed application to set aside the decree within 4 days of knowledge about it. The
ex parte decree was set aside as the defendants were not careless.

No decree shall be set aside on any such application unless notice thereof has been served
on the opposite party. [Order IX, Rule 14]. The phrase “Sufficient cause” mentioned in sec. 537
means the cause, which is beyond the control of the alleged person. It may be an act of God or a
mere manmade disaster where there are concurrent remedies are available the duty of the concern
lawyer is to choose the best one for the benefit of the party. If the suit is dismissed under O- IX,
R- 8; then the plaintiff has two remedies:

i) He may file a petition by swearing an affidavit to the concern court within 30 days from
the date of such dismissal along with a fees and,
ii) He may file a fresh suit.

JUDICIAL PRONOUNCEMENTS AND PRACTICAL INSIGHTS

1. Order IX, Rule 2 of the Code states that, where summons are not served upon the defendant
in consequence of plaintiff’s failure to pay the costs for service of summons or present copies of
the plaint thereof, then the suit filed by the plaintiff may be dismissed. However, despite non-
furnishing of costs for service of summons and failure to present the copies of the plaint thereof,
if the defendant (in person or through pleader) appears before the court to answer the claim of the
plaintiff, then the suit of the plaintiff shall not be dismissed. Moreover, if the suit is dismissed
under Order IX, Rule 2 of the Code, nothing bars the plaintiff either to file a fresh suit in respect
of the same cause of action, or, to apply for the setting aside of the order of dismissal under Order
IX, Rule 4 of the Code.
 2. In the case of Salem Advocates Bar Association, Tamil Nadu Union of India21, it was
held that the period of 7 (seven) days mentioned in Order IX, Rule 5 of the Code is
merely directory and is not mandatory.
3. Order IX, Rule 6 of the Code states that, where the defendant fails to appear before the
court of law on the date fixed for hearing, then, the defendant can be proceeded
against ex parte. Defendant can apply for the setting aside of the ex parte order under
Order IX, Rule 7 of the Code, but the underlying principle remains that, until the suit is
finally decided, the defendant has a right to come forward and defend the suit, that is to
say, even if the defendant fails to furnish good cause for his previous non-appearance,
he cannot be penalised in the sense of being forbidden from taking part in further
proceedings of the suit or of whatever might still remain of the trial; the only disability
the defendant shall suffer is that, he will not be relegated to the same position that he
occupied at the start of the trial.22
4. In the case of Arjun Mohindra23, it was held that, there is no material difference
between the expressions “good cause” as used in Order IX, Rule 7 of the Code and
“sufficient cause” as used in Order IX, Rule 13 of the Code.
5. Order IX, Rule 8 of the Code contemplates a situation where by the defendant appears
but, the plaintiff does not appear on the date fixed for hearing, and owing to the non-
appearance of the plaintiff, the court dismisses the suit. It is essential to note that, to
dismiss the suit of the plaintiff without hearing him is a serious matter and such course
should be adopted only when the court is satisfied that ends of justice requires it to be
so done. The court is powerless to dismiss a suit when the plaintiff fails to appear before
the court owing to his death.
6. Order IX, Rule 9 of the Code states that, if the plaintiff elucidates a “sufficient cause”
that prevented him from appearing before the court, then the court may set aside the
order passed by it under Order IX, Rule 8 of the Code. In the case
of, Raman Arunachalam24, it was held that, if sufficient cause is shown by the plaintiff
for his non-appearance, then re-opening of the trial of the case is mandatory, but when

21
(2005) 6 SCC 344
22
Arjun Singh v. Mohindra, AIR 1964 SC 993; East India Cotton Mfg. Co. v. S.P. Gupta, 28 (1985) DLT 22
23
AIR 1964 SC 993
24
AIR 1936 Ran 335
 sufficient cause is not shown, it is merely directory. Also, in the case of, Madhumilan
Syntex Ltd. v. Union of India25, it was held that, if the court is satisfied that there was
sufficient cause as regards the non-appearance of the plaintiff, then, the court may set
aside the order of dismissal and fix a day for proceeding with the suit.
7. Period of limitation for moving an application under Order IX, Rule 13 of the Code is
30 days from the date of decree, but where it is found that the summons were not duly
served then the period of limitation begins to run from the date of knowledge of the
decree.26
8. “Sufficient cause” for the purpose of Order IX, Rule 13 of the Code has to be construed
as an elastic expression for which no hard and fast rule can be laid down. In the case
of P. Srivastava v. Raizada27, it was held that, the relevant date for deciding “sufficient
cause” for non-appearance by the defendant is the date on which the ex parte decree
was passed, and, the previous negligence or past defaults of the defendant which have
already been condoned are not to be looked into. In sum and substance, the test that is
to be applied is whether the party honestly intended to remain present at the hearing of
the suit and did his best to do so; sufficient cause must be other than lack of knowledge
of the proceedings. In the case of Parimal v. Veena28, the Hon’ble Supreme Court of
India, held that, the term ‘sufficient cause’ used in Order IX, Rule 13 of the Code means
that the defaulting party had not acted in a negligent manner or there was a want of bona
fide on its part in view of the facts and circumstances of a case or the party cannot be
alleged to have been ‘remaining inactive’ or ‘not acting diligently’.
9. It is a settled law that for allowing/disallowing an application under Order IX, Rule 13
of the Code, the merits of the case are not to be looked into. In the case of, Kewal
Ram Ram Lubhai29, it was held that the court is obliged to set aside an ex partedecree
only against those defendants who have preferred an application under Order IX, Rule
13, that is to say, if in a suit by X against P, Q and R, an ex parte decree was passed
against the defendants, and thereafter an application was preferred for setting aside

25
AIR 2007 SC 1481
26
Kailash Chand v. Smt. Hemlata, 1998 (2) CCC 304 (Raj.)
27
AIR 2000 SC 1221
28
(2011) 3 SCC 545
29
AIR 1987 SC 1304
 the ex parte decree by P and Q, but not R, on the ground that the summons were not
served on them, then, the ex parte decree can be set aside apropos P and Q, but not R.
Further, it is important to note that, the first proviso to Rule 13 of Order IX categorically
states that, if the nature of decree is such that it cannot be set aside against one such
defendant preferring application under Rule 13 of Order IX alone, then, the ex
parte decree must be set aside against all other defendants also. For example: R sues X
and Y on a promissory note, and an ex parte decree is passed against both the
defendants. Thereafter, X alone applies to set aside the decree and shows sufficient
cause for his absence, then, decree must be set aside against Y also, in as much as the
liability of both is based on a common ground.
10. Explanation to Rule 13 of Order IX of the Code makes it abundantly clear that, where
an appeal has been preferred against an ex parte decree, for setting aside the decree ex
parte, and the appeal has been disposed of on any ground other than the withdrawal of
the said appeal, then, no application can be preferred to set aside the ex parte decree
under Rule 13 of Order IX of the Code. Apart from this, following points of
consideration must be borne in mind:
1. An appeal lies against an order rejecting the application preferred to set aside
the ex parte decree under Order XLIII, Rule 1(d) of the Code.
2. No appeal, but only revision under Section 115 of the Code, lies against an order
setting aside an ex parte
3. The inherent powers of the court as provided for under Section 151 of the Code
cannot be exercised for setting aside an ex parte decree, when the defendant fails
to establish existence of ‘sufficient cause’ apropos his non-appearance.
11. Provisions apropos Rule 13 of Order IX of the Code are not applicable to ‘summary
suits’ filed under Order XXXVII of the Code.30 Although Rule 7 of Order XXXVII of
the Code states that except as provided the procedure in suits under Order XXXVII of
the Code shall be the same as the procedure applicable to suits instituted in the ordinary
manner, but, Rule 4 of Order XXXVII of the Code specifically provides for the setting
aside of a decree passed ex parte under Order XXXVII of the Code. Unlike Order IX,
Rule 13 of the Code, Order XXXVII, Rule 4, of the Code speaks of ‘special reasons’

30
Rajni Kumar v. Suresh Kumar Malhotra, 2003 (3) SCALE 434
 and not ‘sufficient reasons’ to set aside a decree passed ex parte. The expression
‘special circumstances’ has not been defined in the Code, nor it is capable of any precise
definition by the court, owing to the vast expanse of human problems that might have
prevented the defendant from appearing before the court to answer the claim of the
plaintiff.
12. An ex parte decree is a decree within the purport of Section 2(2) of the Code. An appeal
against an ex parte decree can be preferred under Section 96(2) of the Code. A revision
can also be preferred under Section 115 of the Code against an ex parte.
13. When an ex parte decree is passed by the court against the defendant apart from taking
recourse of filing a review petition, or, a suit for setting aside the ex partedecree on the
ground of fraud played by the plaintiff on the court; the defendant has further, two clear
options available with him, namely, first, to file an appeal under Section 96(2) of the
Code against the decree passed ex parte; and second, to file an application under Order
IX, Rule 13 of the Code. The aggrieved defendant can move ahead simultaneously with
both the options, but in case the appeal preferred fails, then, owing to the explanation
appended to Rule 13 of Order IX of the Code which is to be construed strictly, the
application preferred under Order IX, Rule 13 of the Code is not maintainable, however,
converse of this proposition is not true, that is to say that, in case the application
preferred under Order IX, Rule 13 of the Code fails then an appeal filed under Section
96(2) of the Code is not maintainable. Moreover, an appeal can be preferred against the
dismissal of the application under Order IX, Rule 13 of the Code under Order XLIII,
Rule 1 of the Code.31
14. Order XVII of the Code deals with ‘Adjournments’ and Rule 2 of Order XVII of the
Code categorically states that, where on the day to which the hearing of the suit is
adjourned, the parties to the suit or else any of them fails to appear before the court
then, the court may proceed to dispose of the suit in one of the modes specified by Order
IX of the Code in that behalf, or, the court shall make such other order as it deems fit.

31
Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626
 CONCLUSION

This scenario creates a very critical position in the justice delivery system. Where, on one
hand, the Hon’ble Court is duty bound to dismiss the proceedings if sufficient reasons are not
established which has become the need of time owing to the large number of cases pending at all
stages, on the other hand the Court cannot deviate from the very own objective of the judicial
system, i.e. Justice for all. The Court by taking a strict or technical view of the procedures
prescribed cannot cause prejudice to the innocent party who has faith not only on the Advocate he
has engaged but the ultimate faith in Judiciary that the Court, in no circumstances would cause
anything to affect the rights of the Parties.
This kind of situation necessarily calls for a new practice duly prescribed by law so that
neither the innocent Party suffers due to the default or negligence of an Advocate but the Courts
can adopt the procedures meant for doing substantial justice keeping in mind the Right to speedy
trial in every case, be it Civil or Criminal so that the faith in the Indian Judicial system remains
alive.
 BIBLIOGRAPHY

1. Avtar Singh: Code of Civil Procedure, Central Law Publications, Allahabad.

2. C. K. Thakker & M. C. Thakker: Civil Procedure with Limitation Act, 1963, Eastern
Book Company, Lucknow.
3. Himanshi Mittal: Law of Limitation, Universal Law Publishing Co Pvt. Ltd., New Delhi.
4. Justice P. S. Narayana: Code of Civil Procedure, 1908, Asia Law House, Hyderabad.
5. N. Maheshwara Swamy: Law Relating to Civil Procedure and Limitation, Asia Law
House, Hyderabad.
6. Prof. M. P. Jain: The Code of Civil Procedure (CPC), LexisNexis India, Gurgaon.
7. Shailender Malik: The Code of Civil Procedure (CPC) Universal Law Publishing Co Pvt.
Ltd., New Delhi.
8. Sukumar Ray: Textbook on the Code of Civil Procedure, Universal Law Publishing Co
Pvt. Ltd., New Delhi.