What is Appearance?
When a party “appears,” it means they actively engage in the legal proceedings by being present in court or by being represented by their legal representative (pleader). This can include attending hearings, presenting arguments, submitting evidence, and responding to the court’s directions or questions.
What is non-appearance?
“Non-appearance” signifies the absence of a party from the court proceedings. If a party is required to be present in court but fails to attend or be represented by their legal representative, it is considered a “non-appearance.” This can have consequences depending on the stage of the case and the rules set forth in the CPC.
Appearance of Parties to Suit:
According to Rule 1 Order IX of CPC, the parties are required to attend the court either through personal appearance or by means of their legal representatives, on the designated date mentioned in the summons. If the plaintiff or defendant, upon being directed to attend the proceedings personally, fails to do so without furnishing a satisfactory reason for their non-appearance, Rule 12 of Order IX confers upon the court the following powers:
– In case of the plaintiff’s non-appearance, the suit will be dismissed.
– If the defendant does not make an appearance, an ex-parte order will be issued.
Non- Appearance of both the parties:
When neither plaintiff nor defendant appears before the court when called for hearing, the suit will be dismissed under Rule 3. It’s important to note that the dismissal of the suit under this provision does not prevent the initiation of a fresh suit based on the same cause of action, as outlined in Rule 4. Furthermore, the plaintiff has the option to request the court to reconsider the dismissal if they can sufficiently demonstrate that valid reasons existed for their non-appearance. Should the court find the justification for the non-appearance acceptable, it has the discretion to overturn the dismissal order and establish a new hearing date for the suit.
Appearance of the Plaintiff:
When only the plaintiff appears but the defendant does not appear, then ex-parte order can be passed against the defendant. But, the plaintiff has to prove that the summon was served to the defendant. If service of summon is proved then only the court can proceed for an ex-parte against the defendant and court may passed a decree in favor of the plaintiff. This provision specifically applies to the initial hearing and not subsequent ones, as established in the legal precedent of Sangram Singh v. Election Tribunal, Kotah AIR 1955 SC 425.
Appearance of Defendant:
When only defendant appears but non- appearance of plaintiff, then there can be two situations:
– The defendant does not admit to the plaintiff’s claim, either in whole or in part.
– The defendant admit to the plaintiff’s claim.
If the defendant does not acknowledge the plaintiff’s claim, the court will order the dismissal of the suit. However, when the defendant fully or partially accepts the plaintiff’s claim, the court is authorized to issue a decree against the defendant based on that admission. For the remaining aspects of the claim, the suit will be dismissed.
When summon is not served:
Rules 2 to 5 of Order IX delineate the provisions for scenarios where the summons has not been served to the defendant. A fundamental principle of procedural law is that every party must be afforded a fair chance to present their case. Providing notice of legal proceedings against them is essential to achieve this. Therefore, serving a summons to the defendant is obligatory and serves as a condition precedent.
Rule 2 holds that when the plaintiff fails to pay costs for the service of summons to the defendant then the suit may be dismissed. But, no suit can be dismissed if defendant appears on the day of hearing. However, plaintiff can file fresh suit if the suit is dismissed. And if the court satisfies that there is reasonable cause for not paying of such cost then court may set aside such dismissal.
Ex-Parte Decree:
In situations where the defendant is noticeably absent on the scheduled hearing day as outlined in the summons, an ex-parte decree can be rendered. This type of decree is issued when the plaintiff appears before the court on the designated day, but the defendant fails to appear despite proper summons being served. In such instances, the court is empowered to conduct the proceedings ex-parte and deliver a decree in favour of the plaintiff in the defendant’s non-appearance.
Remedies against Ex-Parte Decree:
- He can apply to the court under Rule 13 Order 9 for setting the decree
- He can appeal against that decree under section 96(2) or prefer revision under section 115 cpc
- He can apply review under Order 47 rule 1
- A suit on the ground of fraud can be filed.
The limitation period for making an application for setting aside an ex-parte decree is of 30 days.
The ground on which ex-parte decree can be set aside:
1. when summons not duly served
2. Due to “sufficient cause”, he could not appear on the day of hearing.
ORDER IX 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.
Rule 2. Dismissal of suit where summons not served in consequence of plaintiff’s failure to pay costs.-
Where on the day so fixed it is found that 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.
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.
Rule 4. Plaintiff may bring fresh suit or Court may restore suit to file.-
Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) 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 [such failure as is referred to in rule 2], or for his non-appearance, 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.
2. Subs. by Act 104 of 1976 s. 59, for certain words (w.e.f. 1-2-1977).
Rule 5. Dismissal of suit where plaintiff after summons returned unserved, fails for <[seven days] to apply for fresh summons. –
[(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 1[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.
*. Shall be applicable to commercial disputes of a specified value by Act 4 of 2016, s. 16 and the Sch. (w.e.f. 23-10-2015).
3. Subs. by Act 46 of 1999, s. 19, for “one month” (w.e.f 1-7-2002).
4. Subs. by Act 24 of 1920 s. 2, for sub-rule (1).
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 shall 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 on the defendant;
(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.
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.
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.
Rule 13. Setting aside decree ex parte against defendant.-
In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
[Provided further than no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.]
RELEVANT CASE LAWS
Sangram Singh v. Election Tribunal, Kotah AIR 1955 SC 425
Facts: Bhurey Lal initiated an election petition pursuant to Section 100 of the Representation of the People Act, 1951 against Sangram Singh, the appellant, seeking to invalidate his election. On the specified date of hearing, the appellant and his three engaged counsels failed to appear, prompting the Tribunal to proceed ex-parte.
Bhurey Lal and two witnesses were examined and one day after their examination five additional witnesses were also examined, and the case was adjourned for a later date. When one of the appellant’s counsels appeared on the day fixed the Tribunal denied his participation, citing the ongoing ex-parte proceedings. Later, the appellant applied for setting aside the ex-parte proceedings under Order 9 Rule 13 of the CPC. The Tribunal rejected the application, stating that the appellant had failed to prove any justifiable reason for his absence between 17th March and 19th March 1953. Subsequently, the appellant filed a writ petition under Article 226 of the Constitution in the High Court of Rajasthan, leading to a stay of further proceedings before the Tribunal. On 17th July 1953, the HC dismissed the petition, citing two grounds:Firstly, the Tribunal was the competent authority to determine the sufficiency of reasons, and Secondly, the counsel for the petitioner displayed gross negligence by not appearing on the scheduled hearing date. Five months later, the HC granted a certificate under Article 133(1)(c) of the Constitution, allowing an appeal to the SC.
Issue: Whether the Tribunal was right in refusing to allow the appellant’s counsel to appear and take part in the proceedings date fixed after adjournment?
Whether there is sufficient ground to give the High Court jurisdiction to entertain a writ petition under Article 226 of the Constitution?
Judgement: SC said that the tribunal was not justified in refusing the appellant’s counsel to appear and take part in the proceedings when he appeared.
The only consequence of the appellant counsel not being able to give just or unavoidable reason preventing his appearance on 17th to 19th but that would not prevent him to participate in further proceedings.
The court considered these grounds satisfactory to set aside the order of tribunal under Order IX Rule 13 of CPC.
The SC set aside the order of tribunal and asked the Election Commission to reconstitute a tribunal to hear this case.
Rajni Kumar v. Suresh Kumar Malhotra 2003 (3) SCALE 434
Facts: The appellant had taken on rent residential flat No.C 470, Sarita Vihar, Ground Floor, New
Delhi – 110 004, from the respondent for a period of nine months under an agreement of
lease reduced to writing on November 26, 1993. After the expiry of the term of tenancy she
continued to occupy the said premises as tenant till January 11, 1997. Alleging that the appellant did not pay the electricity and water consumption charges for the period starting from November 26,1993 to January 11, 1997, the respondent filed suit in the Court of Senior Civil Judge,Delhi, under Order 37 of Code of Civil Procedure (C.P.C.), for recovery of Rs.33,661. On the ground that on April 21, 1999 summons for judgment was sent by registered post A.D. to the appellant pursuant to the order of the Court dated April 16, 1999 the Court drew inference of deemed service on him, proceeded with the case and decreed the suit ex parte on August 12, 1999. The appellant,however, filed application under Rule 4 of Order 37 C.P.C. in the trial court to set aside the ex parte decree. The application was dismissed as no special circumstances were stated in the petition both in regard to there being illegality in deeming service of summons for judgment on the appellant as well facts sufficient to entitle him to defend the suit. Aggrieved by the order of the trial court, the appellant filed revision C.R.No.138 of 2001 in the High Court, which was also dismissed on October 15, 2001. That order of the High Court is assailed in appeal before the Supreme Court.
Issue: whether the High Court committed jurisdictional error in declining to set aside the ex parte decree on the application of the appellant under Rule 4 of Order 37, on the ground that he failed to disclose facts sufficient to entitle him to defend the suit?
Judgement: The Court ruled that though appellant has shown sufficient cause for his absence on the date of passing ex parte decree, he failed to disclose facts which would entitle him to defend the case. The respondent was right in his submission that in the application under Rule 4 of order 37, the appellant did not say a word about any amount being in deposit with the respondent or that the suit was not maintainable under Order 37. From a perusal of the order under challenge, it appears to us that the High Court was right in accepting existence of special circumstances justifying his not seeking leave of the court to defend, but in declining to grant relief since he had mentioned no circumstances justifying any defence.
In this view of the matter, we do not find any illegality much less jurisdictional error in the order under challenge to warrant interference of this Court.In as much as having regard to the provisions of Section 34 of the C.P.C. and the facts of the case that the liability does not arise out of a commercial transaction, we are of the view that the grievance of the appellant with regard to rate of interest is justified. We, therefore, reduce the rate of interest from 18 per cent to 6 per cent per annum.
Bhanu Kumar Jain v. Archana Kumar AIR 2005 SC 626
Facts: A person named Shri N N Mukherjee was the owner of the premises in the suit.He died leaving behind his wife Smt. Suchorita Mukherjee, (original defendant No. 1), son Shri P P Mukherjee, (original plaintiff) and daughter Smt. Archana Kumar, (original defendant No. 2). The family was said to be governed by Dayabhag School of Hindu Law. The original plaintiff filed a suit for partition in the year 1976. As a result, to which the original defendants filed their written statements. Respondent No. 2, Surender Nath Kumar who is husband of Smt. Archana Kumar, Respondent No. 1 herein also filed a written statement and counterclaim by setting up a plea of mortgage by deposit of title deeds in respect of property in suit said to have been created by his mother-in-law (original defendant No. 1). The defendants failed to appear in the trial court on the date whenever the case was fixed for hearing.
On 30th October 1985, an application was filed by the Respondents herein purported to be in terms of Order XI, Rule 7 of Code of Civil Procedure, 1908 (CPC) for setting aside the order dated 7th October 1985 whereby the suit was posted for ex-parte hearing. The said application was rejected by an order dated 31st November 1985. A preliminary decree for partition, thereafter, was passed on 1st November 1985 in favour of the plaintiff. An appeal filed to the HC was also dismissed. In the meantime, the plaintiff transferred his rights, title and interest of his share of the property that was allotted to him by the partition decree to Bhanu Kumar, the appellant herein. In the first appeal to the HC under Section 96 of CPC, the defendants challenged the ex-parte decree.They also questioned the validity of the order of trial court granting ex-parte hearing. The HC allowed the appeal and overturned the ex-parte decree of the trial court on the grounds that the trial court should not have ordered an ex-parte hearing. Hence, an appeal was filed before the supreme court.
Issue: Whether the dismissal of an application under Order 9 Rule 13 of the CPC bars the statutory right of first appeal under Section 96 of the CPC?
Judgement: The SC said the Order XI, Rule 7 of the CPC allows a defendant to be heard in response to a suit if the ex-parte hearing order was made without the suit being heard fully. However, if the suit was heard entirely and adjourned for judgment, Rule 7 does not apply. Section 96(2) permits appeals against ex-parte decrees on grounds such as insufficient evidence or improper ex-parte hearing. Order XI, Rule 13 enables defendants to challenge ex-parte orders by citing valid reasons for non-appearance. Simultaneously pursuing appeal and Rule 13 relief is allowed, but if the appeal fails, Rule 13 cannot be used. However, a defendant’s right to appeal cannot be infringed upon by public policy. Raising contentions in both appeals and Rule 13 applications risks conflicting judgments.
Defendants may argue against the merit of the suit in appeals, citing inadequate evidence or lack of jurisdiction.
Although a HC judgment may lack merit, it must assess the respondent’s claims based on existing case records.Despite flawed reasoning, the HC must evaluate the respondent’s arguments.
The SC allowed the appeal and set aside the impugned judgement of the HC and remitted the case to the HC for consideration of the case of the parties on merit of the matter.
PRESENT CASE:
Q. 2/2020. If ‘A’ appears at an adjourned hearing, the court has a judicial discretion either to allow him to appear or to disallow further appearance, and if he is allowed to appear then, unless good cause is shown under order IX, Rule 7 for earlier no-appearance, the proceedings must continue from the stage at which the later appearance is entered and ‘A’ cannot be relegated to the position as would have occupied if he had appeared at the earlier hearing(s). Relevant case- Sangram Singh vs Election tribunal.
