Order 9 Rule 4 CPC - Appearance of Parties and Consequence of Non-appearance | Civil Law for Judiciary Exams PDF Download

Order IX – Appearance of Parties and Consequence of Non-appearance

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 should be present at the Court House either in person or through their respective pleaders.
• The suit will proceed to hearing on that day unless the hearing is postponed to a later date set by the Court.

Rule 2: Dismissal of suit where summons not served due to plaintiff's failure to pay costs

• If on the scheduled day it is discovered that the summons was not served to the defendant because the plaintiff did not pay the court-fee or postal charges, or failed to provide copies of the plaint as required by Rule 9 of Order VII, the Court has the authority to dismiss the suit.
• This dismissal can occur if the plaintiff fails to meet the necessary financial obligations for the service of the summons.

Rule 3: Where neither party appears, suit to be dismissed

• When neither party shows up for the scheduled hearing, the court has the authority to order the dismissal of the suit.

Rule 4: Plaintiff may bring fresh suit or Court may restore suit to file

• If a suit is dismissed according to Rule 2 or Rule 3, the plaintiff has two options: either file a new suit (within the legal time limits) or request the court to reinstate the dismissed suit. To succeed in reinstating the suit, the plaintiff must convince the court that there were valid reasons for the initial failure or non-appearance, as the case may be.

Rule 5: Dismissal of suit where plaintiff, after summons returned unserved, fails for three months to apply for fresh summons

• If a summons issued to the defendant is returned unserved and the plaintiff does not request a new summons within seven days of the return, the court may dismiss the suit against that particular defendant. The plaintiff can prevent dismissal by satisfying the court within the given time frame.

• Extension of Time to Serve Defendant: In situations where the plaintiff has made every effort to locate the defendant's residence but has been unsuccessful, or if the defendant is intentionally avoiding being served, or if there are other valid reasons, the court has the authority to extend the time for making the application for an appropriate duration.

• Consequences of Failing to Serve the Defendant: If the defendant has not been served within the specified time frame, and there are valid reasons as mentioned above, the plaintiff, considering the statute of limitations, has the option to initiate a new legal proceeding.

Rule 6: Procedure when only plaintiff appears

Summons Duty
When the plaintiff is present but the defendant is absent during the scheduled hearing:

• If it can be proven that the summons was correctly served, the court may decide to proceed with the case in the absence of the defendant.
• If there is no proof of proper summons service, the court will order a second summons to be issued and served to the defendant.
• If the summons was served but not in a timely manner for the defendant to respond on the designated day, the court will adjourn the hearing to a later date and ensure the defendant is informed of the new hearing date.

Plaintiff's Responsibility

• If the failure in serving the summons promptly or correctly is due to the plaintiff's actions, the court will require the plaintiff to bear the expenses incurred due to the postponement.

Rule 7: Defendant's Appearance with Valid Reason for Previous Non-Appearance

• When a court adjourns a hearing ex parte and the defendant appears before or during the next hearing, providing a valid reason for missing the prior hearing, the court may allow the defendant to respond to the suit. This is subject to any terms set by the court regarding costs or other conditions.

Rule 8: Defendant's Sole Appearance

• If the defendant is present but the plaintiff is absent when the case is called for hearing, the court will typically dismiss the suit. However, if the defendant agrees to the claim, either in full or in part, the court will issue a decree based on the admission. In cases of partial admission, the court will dismiss the suit concerning the remaining portion of the claim.

Rule 9: Default Decree Against Plaintiff Prevents New Suit

• When a suit is entirely or partially dismissed according to Rule 8, the plaintiff is barred from initiating a new suit on the same grounds. Nevertheless, the plaintiff can request the court to revoke the dismissal if they can demonstrate a valid reason for their absence during the initial hearing. If the court is satisfied with the explanation, it may set aside the dismissal and schedule a new hearing, imposing suitable terms, including costs.

Rule 10: Procedure in case of non-attendance of one or more of several plaintiffs

• When there are multiple plaintiffs involved in a case, and some are present while others are not, the court, upon the request of the appearing plaintiff(s), can allow the case to proceed as if all plaintiffs were present. Alternatively, the court may issue any appropriate orders deemed necessary.

Rule 11: Procedure in case of non-attendance of one or more of several defendants

• In situations where there are multiple defendants, and some are present while others are absent, the court will continue with the case. At the time of delivering the judgment, the court will make decisions regarding the absent defendants as it sees fit.

Rule 12: Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person

• If a plaintiff or defendant who has been required to appear in person fails to do so without providing a satisfactory reason to the court, they will be treated in accordance with the rules applicable to absent plaintiffs or defendants. This includes being subject to the consequences of non-appearance.

Rule 13: Setting aside decree ex parte against defendant

• In situations where a court passes a decree against a defendant without their presence (ex parte), the defendant has the right to request the court to annul the decree.
• If the defendant can prove to the court that they were not properly served with the summons or were unable to appear in court due to a valid reason, the court must annul the decree against them.
• The court, upon satisfaction with the defendant's reasons, will set aside the decree with conditions regarding costs, payments, or other terms, and will schedule a new date for the continuation of the case.
• If the decree is of a nature that cannot be annulled solely against the defendant, it may also be annulled against other defendants involved in the case.
• However, a court cannot annul a decree passed ex parte solely due to an irregularity in the summons' service if it believes that the defendant was aware of the hearing date and had sufficient time to respond.
• Explanation: If an appeal has been made against an ex parte decree under this rule and the appeal has been resolved for reasons other than withdrawal, this rule cannot be used to set aside the ex parte decree.

Rule 14: No decree to be set aside without notice to opposite party

• No decree can be overturned without informing the opposing party beforehand.

Important Case Laws

 1. Difference between 'good cause' and 'sufficient cause' 

• In the case of Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, the court remarked that the distinctions between 'good cause' and 'sufficient cause' are minimal.
• The court emphasized that a 'good cause' essentially serves as a 'sufficient cause' for explaining non-appearance.
• The terms 'good cause' and 'sufficient cause' could be seen as interchangeable, with 'good and sufficient cause' being a common phrase used in similar legal contexts.
• The burden of proof required for establishing a 'good cause' might be lesser than that needed for a 'sufficient cause,' but failing to meet the lighter burden in the first instance could prevent a reassessment in a subsequent proceeding where the standards are higher.

2. Applicability of Order IX Rule 7

• In the case of Arjun Singh v. Mohindra Kumar, if the entire hearing of the suit has been completed and the court is ready to deliver a judgment but adjourns the proceedings solely for the purpose of pronouncing the judgment under Order XX, Rule 1, then Order IX, Rule 7 does not apply. 
• This means that if there is no further hearing required and the case is at a stage where only the judgment remains to be pronounced, Order IX, Rule 7 is not relevant. In such a scenario, the case would proceed as per Order IX, Rule 6, potentially leading to an ex-parte decree under Rule 13.

3. Remedies in Case of Ex-Parte Decree

• When an ex-parte decree is passed against a defendant, they have two main options for recourse. Firstly, they can file an appeal against the decree. Secondly, they can submit an application under Order IX, Rule 13. The defendant is allowed to pursue both avenues concurrently. 
• It's important to note that filing an appeal does not negate the possibility of also filing an application under Order IX, Rule 13. However, if the appeal is unsuccessful and the ex-parte decree becomes part of the appellate court's order, then a petition under Order IX, Rule 13 would not be valid. In such cases, the defendant's remedy lies under Order 43, Rule 1. Furthermore, if an application under Order IX, Rule 13 is rejected, the defendant can appeal under Section 96 but cannot repeat the same argument that was already dismissed in the original appeal.