Appearance and non appearance of parties

 Appearance and non appearance of parties

Introduction

Every proceeding as far as possible must be carried on in the presence of parties as a general principle of law. Order IX of the Code of Civil Procedure lays the laws regarding the appearance of parties and what are the consequences of the non-appearance of parties.

The appearance of parties to the suit

As stated under Rule 1 of Order IX of the Code of Civil Procedure, the parties to the suit are required to attend the court either in person or by their pleaders on the day which has been fixed in the summons. If the plaintiff or a defendant, when ordered to appear in person, do not appear before the court and neither show the sufficient cause for his non-appearance, the court is empowered under Rule 12 of Order IX as follows.

If the plaintiff does not appear, dismiss the suit.

If the defendant does not appear, pass an ex-parte order.

Non-appearance of both parties to the suit

When neither the plaintiff nor the defendant appears before the court when the suit is called for hearing, then the court is empowered to dismiss the suit under Rule 3 of Order IX. The dismissal of the suit under this rule does not put a bar on filing a fresh suit on the same cause of action as per Rule 4.

The plaintiff can also apply for setting aside the dismissal if he is able to satisfy the court that there was sufficient behind his non-appearance. If the court is satisfied with the cause of non-appearance then it may set aside the order of dismissal and schedule a day for the hearing of the suit.

The appearance of the plaintiff

When only the plaintiff appears but the defendant does not appear, then an 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 the summons is proved then only the court can proceed for an ex-parte against the defendant and the court may pass a decree in favour of the plaintiff. This provision applies only for the first hearing and not for the subsequent hearings of the matter and the same has been held in the case of Sangram Singh v. Election Tribunal.

Even while passing an ex-parte order it is the duty of the court to secure the end of justice even in the absence of the defendant. In the case of Maya Devi v. Lalta Prasad, it has been held by the Supreme Court that -It is the duty of the court to ensure that statements in the plaint stand proven and the prayers asked before the court are worthy of being granted. This provision of passing ex parte order cannot be passed when there are more than one defendants in the case and any of them appears.

Sufficient cause depends upon the facts and circumstances of each and every case.

In the case of Chhotalal v. Ambala Hargovan, the Bombay High Court observed that if the party arrives late and find its suit dismissed due to his non-appearance then he is entitled to have his suit or application restored with the payment of costs.

When summon is not served

Rule 2 to 5 of Order IX lays down the provision for the situation when the summon is not served to the defendant. One of the fundamental law of procedural law is that a party must be given a fair opportunity to represent his case. And, for this, a notice of the legal proceedings initiated against him is obligatory. Therefore, service summons to the defendant is mandatory and it is a conditional precedent. 

When there is no service of summons or it does not give him sufficient time for effective presentation of the case then a decree cannot be passed against him as held in the case of Begum Para v. Luiza Matilda Fernandes.

Rule 2 of Order IX also holds that when the plaintiff fails to pay costs for service of summons to the defendant then the suit may be dismissed. But, no dismissal can be made even in the presence of such failure if the defendant appears on the day of hearing either in person or through his pleader. However, the plaintiff is entitled to file a fresh suit when the suit is dismissed under this rule. and, if the court is satisfied that there is a reasonable reason behind such failure to pay costs then the court may set aside the order of dismissal.

When the summon is returned unserved and the plaintiff does not apply for fresh summons for 7 days from which the summon is returned unserved by the defendant or any of the defendants, then the court can dismiss the suit against the defendant or such defendants

When the summon was not duly served to the defendant is not proved then the court can direct to issue a fresh summon to the defendant for service. When the service of the summons is proved before the court but the time prescribed in the summon is not sufficient for him to answer on the day which has been fixed, then the hearing can be postponed by the court to a future date and notice will be given to the defendant.

The term sufficient cause has not been defined anywhere but as held in the case of UCO Bank v. Iyengar Consultancy, it is a question which is determined upon the facts and circumstances of the cases. The test to be applied for this is whether or not the party actually and honestly intended to be present at the hearing and tried his best to do so. There are several instances which have been considered as sufficient cause such as late arrival of the train, sickness of the council, the strike of advocates, death of a relative of party etc. 

The burden of proof that there was a sufficient cause of non-appearance is upon the defendant 

Conclusion

The appearance and non-appearance of parties have an effect on the case and whether it will be carried on for the next hearing, dismissed or an ex-parte decree will be given. When none of the parties appears then the suit can be dismissed by the court. The suit is carried on for the next hearing only when both parties appear before the court.

If the plaintiff appears before the court but no defendant appears on the day of hearing then the court may pass an ex-parte decree against the defendant. The situations when there is non-appearance on the behalf of the plaintiff then the suit can be dismissed if the defendant denies the claim of the plaintiff and if he admits to any claim the court can pass an order against him on the ground of his admission.

When any suit is dismissed or an ex-parte order is passed then it can also be set aside if there is sufficient reason behind the absence of a party. If the court is satisfied with the reason of absence then it may set aside the order of dismissal or an ex-parte order. During all these procedures the court must keep in mind that nowhere any miscarriage of justice is done during the dismissal or while passing an ex-parte order.