§ What it is

• When. At the threshold, before any trial, though an application under Rule 11 may be made at any stage before judgment.

• On what material. The plaint and its documents alone, taken as true. The defence is not considered.

• What is decided. Nothing about the rights of the parties. The court holds that the suit cannot proceed on this plaint as it stands.

• Its character. A deemed decree under Section 2(2), so an appeal lies under Section 96 and a second appeal under Section 100.

• What follows. Order VII Rule 13: rejection does not of its own force preclude a fresh plaint on the same cause of action, subject to limitation.

§ Order IX Rules 8 and 9 (in substance)

Rule 8. 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 of it, in which case the Court shall pass a decree against the defendant upon such admission.

Rule 9(1). 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, the Court shall make an order setting aside the dismissal and appoint a day for proceeding with the suit.

§ Four points

• When. At any stage at which the suit is called on for hearing and the plaintiff does not appear.

• What is decided. Nothing at all. There has been no adjudication of rights, which is why the dismissal is expressly excluded from the definition of decree by clause (b) of Section 2(2).

• The bar and its answer. Rule 9(1) bars a fresh suit on the same cause of action, but provides the remedy: an application to set the dismissal aside on sufficient cause, within thirty days under Article 122 of the Limitation Act, 1963.

• Appeal. No appeal lies from the dismissal itself, since it is not a decree; but an appeal lies from an order refusing to set it aside, under Order XLIII Rule 1(c).

§ What it is

• When. After evidence and arguments, at the stage of judgment.

• What is decided. Everything in controversy. The court has determined the rights of the parties on the merits.

• Its character. A decree within Section 2(2), appealable under Section 96 and, on a substantial question of law, under Section 100.

• What follows. Res judicata attaches under Section 11, and the constructive branch under Explanation IV bars grounds that might and ought to have been raised. A fresh suit on the same matter is barred, not merely discouraged.

When

At the threshold, on the plaint as it stands

At any stage where the plaintiff does not appear

After evidence and arguments

Material considered

The plaint and its documents, taken as true

None; the plaintiff simply did not appear

The whole evidence on record

What is decided

Nothing about rights: the suit cannot proceed on this plaint

Nothing at all

The rights of the parties, conclusively

Character of the decision

A DEEMED DECREE: Section 2(2)

NOT a decree: expressly excluded by clause (b)

A DECREE

Appeal

Section 96, and a second appeal under Section 100

None from the dismissal; an appeal lies from an order refusing restoration, O. XLIII R. 1(c)

Section 96, and a second appeal under Section 100

Fresh suit

Permitted by O. VII R. 13, subject to limitation

Barred by O. IX R. 9(1); the remedy is restoration

Barred by res judicata under Section 11

The remedy to pursue

Appeal, or file a corrected fresh plaint

Apply under O. IX R. 9 within thirty days, showing sufficient cause

Appeal, and nothing else

§ How to place any dismissal

WHEN did it happen? At the threshold, at a hearing the plaintiff missed, or after the trial?

WHAT was decided? Rejection decides nothing about rights; a default dismissal decides nothing at all; a dismissal after trial decides everything in controversy.

WHAT FOLLOWS? A fresh plaint after rejection; restoration after default; and after a trial, only an appeal, because res judicata now applies.

These three questions dispose of almost every problem set on this topic, including the common one in which a plaintiff whose suit was dismissed for default files afresh and is met by Order IX Rule 9(1).

§ Two related dismissals worth knowing

• Dismissal for non-prosecution generally. Where the plaintiff fails to take a step the court has directed, the suit may be dismissed under the relevant rule, and restoration is governed by the rule under which the dismissal was made or by the inherent power where none fits.

• Dismissal under Order XVII Rule 3. Where a party to whom time was granted fails to produce evidence or perform an act necessary to the progress of the suit, the court may, notwithstanding the default, proceed to decide the suit forthwith. That is a decision on the merits and produces a decree, so it is treated as a dismissal after trial rather than a default dismissal.