Code of Civil Procedure, 1908 (CPC)
Order IX CPC: Appearance and Non-Appearance of Parties, Dismissal and Ex Parte Decrees
Litigation assumes attendance. Order IX of the Code of Civil Procedure, 1908 provides for what happens when that assumption fails: when neither party appears, when only one does, and what remedies the absent party then has. The Order's structure is simple once the three situations are separated, but its consequences are severe and its remedies differ sharply, which is why the distinction between restoration of a dismissed suit and the setting aside of an ex parte decree is among the most examined in the Code.
The three situations under Order IX and the remedies each produces
1. The Duty to Attend: Rules 1 and 2
§ Order IX Rules 1 and 2, CPC 1908 Rule 1. 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. 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 chargeable for such service, or 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 although the summons has not been served upon the defendant, if 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. |
Rule 3 of Order IX completes the opening scheme: where a suit is dismissed under Rule 2, the plaintiff may, subject to the law of limitation, bring a fresh suit, or the court may set aside the dismissal on his satisfying it that there was sufficient cause for the failure. The dismissal under Rule 2 is therefore for the plaintiff's default in the machinery of service, not for non-appearance, and its consequences are correspondingly mild.
2. Neither Party Appears: Rules 3 and 4
Where neither party appears on the day fixed, Rule 3 provides that the court may make an order that the suit be dismissed. Nothing is decided on the merits, so the dismissal founds no res judicata. Rule 4 gives the plaintiff two courses: he may bring a fresh suit, subject to limitation, or he may apply for an order to set aside the dismissal, and if he satisfies the court that there was sufficient cause for his non-appearance, the court shall set aside the dismissal and appoint a day for proceeding with the suit. The availability of a fresh suit here is the contrast with Rule 9, and it is the most common trap in this Order.
3. Only the Plaintiff Appears: Rules 6 and 7
§ Order IX Rule 6(1), CPC 1908 Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then — (a) when the summons is duly served, the Court may make an order that the suit be heard ex parte; (b) when the summons is not duly served, the Court shall direct a second summons to be issued and served on the defendant; (c) when the summons is served but not in sufficient time to enable him to appear and answer on the day fixed, the Court shall postpone the hearing to a future day and shall direct notice of such day to be given to the defendant. |
The controlling condition is proof of due service. The court may proceed ex parte only under clause (a), and only when the summons has been duly served; where service is not proved, clause (b) makes a second summons mandatory, and where service was in time too short, clause (c) requires a postponement with notice. An ex parte order made without proof of due service is therefore bad at its foundation, which is why improper service is the first ground under Rule 13. Rule 7 supplies the defendant's chance before decree: where he appears on an adjourned hearing and assigns good cause for his previous non-appearance, he may, on such terms as the court directs as to costs, be heard in answer to the suit as if he had appeared on the day fixed.
§ The Sangram Singh principle in Order IX In Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425, the Supreme Court held that a party against whom the court proceeds ex parte on one day is penalised only for that day. He cannot reopen what was done in his absence as of right, but he may appear and participate from the stage at which he turns up, because the Code contains no provision inflicting the larger penalty of exclusion from the whole trial. This is the reason Rule 7 exists in its present form, and it is the principle to cite whenever a question asks about the effect of an order to proceed ex parte short of a decree. |
4. Only the Defendant Appears: Rules 8 and 9
Where the defendant appears and the plaintiff does not, Rule 8 provides that the court shall make an order that the suit be dismissed, unless the defendant admits the claim or part of it, in which case the court passes a decree against him on such admission and dismisses the suit as to the rest. The consequence that follows is the severe one.
§ Order IX Rule 9(1): no fresh suit Where a suit is wholly or partly dismissed under rule 8, 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. Contrast Rule 4, which expressly permits a fresh suit after a dismissal under Rule 3. The Code bars a second attempt where the plaintiff alone defaulted and the defendant was present and ready; it permits one where neither side appeared. The application under Rule 9 must be made within thirty days of the dismissal, under Article 122 of the Limitation Act, 1963. |
5. The Ex Parte Decree and Rule 13
§ Order IX Rule 13, CPC 1908 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 that no Court shall set aside a decree passed ex parte merely on the ground of any 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. Explanation. Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree. |
The two grounds, the meaning of sufficient cause, the effect of the second proviso, the relationship with Section 96(2), and the Explanation are treated at length in the companion topic in this series. For the scheme of Order IX it is enough to fix three points: the application lies to the court that passed the decree; the limitation is thirty days from the date of the decree, or, where the summons was not duly served, from the date the defendant had knowledge of it, under Article 123 of the Limitation Act, 1963; and setting aside restores the suit to the stage before the ex parte hearing, so the defendant files his defence and the suit is tried.
6. The Order IX Remedies at a Glance
Situation | Provision and consequence | Remedy of the aggrieved party |
|---|---|---|
Summons not served through the plaintiff's default in fees or copies | Rule 2: the suit may be dismissed | Rule 3 proviso and Rule 4: a fresh suit, or an application to set aside on sufficient cause |
Neither party appears | Rule 3: the suit may be dismissed | Rule 4: a fresh suit, or an application to set aside the dismissal on sufficient cause |
Plaintiff appears, defendant does not, summons duly served | Rule 6(1)(a): the suit may be heard ex parte, leading to an ex parte decree | Rule 7 before decree, on good cause; Rule 13 after decree; or an appeal under Section 96(2) |
Plaintiff appears, defendant does not, summons not duly served | Rule 6(1)(b): a second summons must issue; the court cannot proceed ex parte | Not applicable: the defect is cured before any order is made |
Defendant appears, plaintiff does not | Rule 8: the suit shall be dismissed, subject to a decree on admissions | Rule 9 only: restoration on sufficient cause. A fresh suit on the same cause of action is barred |
7. Landmark Judgments on Order IX
- Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425. A party proceeded against ex parte is penalised only for that day and may participate from the stage at which he appears; a procedural code is not penal.
- G.P. Srivastava v. R.K. Raizada, (2000) 3 SCC 54. Sufficient cause under Order IX Rule 13 is to be construed liberally; the words are to be read so as to advance substantial justice where no negligence, inaction or want of bona fides is imputable to the defendant.
- Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787. The relationship between an application under Order IX Rule 13 and an appeal under Section 96(2), and the effect of the Explanation to Rule 13.
- Order IX Rules 4 and 9 contrasted. A fresh suit lies after a dismissal under Rule 3, but not after a dismissal under Rule 8.
8. Frequently Asked Questions on Order IX
What happens if neither party appears on the date of hearing?
Under Order IX Rule 3 the court may dismiss the suit. By Rule 4 the plaintiff may then either bring a fresh suit, subject to limitation, or apply to set aside the dismissal on satisfying the court that there was sufficient cause for his non-appearance.
What happens if only the defendant appears?
Under Order IX Rule 8 the suit shall be dismissed, unless the defendant admits the claim or part of it, in which case a decree is passed on the admission. By Rule 9 the plaintiff is then barred from a fresh suit on the same cause of action, and his only remedy is an application for restoration on sufficient cause.
When can a court proceed ex parte?
Only where the plaintiff appears, the defendant does not, and the summons is proved to have been duly served: Order IX Rule 6(1)(a). Where service is not proved, a second summons must issue under clause (b), and where service was too late, the hearing must be postponed with notice under clause (c).
Can a defendant against whom the court has proceeded ex parte participate later?
Yes. Under Order IX Rule 7 he may, on assigning good cause for his previous non-appearance and on such terms as to costs as the court directs, be heard in answer to the suit as if he had appeared on the day fixed. Sangram Singh holds that he is penalised only for the day of default and may participate from the stage he appears.
Can a fresh suit be filed after a dismissal in default?
It depends on the rule. After a dismissal under Rule 3, where neither party appeared, Rule 4 expressly permits a fresh suit. After a dismissal under Rule 8, where the defendant appeared and the plaintiff did not, Rule 9 bars a fresh suit on the same cause of action, and the only remedy is restoration.
What is the limitation for applying under Order IX Rules 9 and 13?
Thirty days in both cases. Under Article 122 of the Limitation Act, 1963 an application to restore a dismissed suit runs from the date of dismissal; under Article 123 an application to set aside an ex parte decree runs from the date of the decree, or, where the summons was not duly served, from the date the applicant had knowledge of it.
9. Related Topics in This CPC Series
- Setting Aside an Ex Parte Decree under Order IX Rule 13
- Restoration and Setting Aside an Ex Parte Decree Compared
- Issue and Service of Summons: Sections 27 to 29 and Order V
- Order VIII: Written Statement, Set-Off and Counterclaim