HIDAYATULLAH NATIONAL LAW UNIVERSITY RAIPUR, C.G.
APPEARANCE OF PARTIES AND CONSEQUENCE OF NON APPEARANCE PROJECT SUBMITTED TO Ms. Apurva Verma (FACULTY: CPC)
PROJECT SUBMITTED BY POOJA MALOO ROLL NO. – 86 SEMESTER – IX SECTION - B
DATE OF SUBMISSION - 10.10.2014
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ACKNOWLEDGMENTS Acknowledgment is due to Apurva Ma’am for her constant guidance and encouragement. I would like to express my heartfelt gratitude towards him for allotting me project topic such as this and help me grow as a student. My gratitude also goes out to the staff and administration of HNLU for the infrastructure in the form of our library and internet facilities.
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POOJA MALOO
RESEARCH METHODOLOGY
This doctrinal research is descriptive and analytical in nature. My research paper is largely based on secondary and electronic sources of information. Books and other references used as guided by the Faculty of CPC have helped immensely in the research undertaken. The researcher has relied on a number of case facts and various court decisions to come to a better conclusion as regards the issues raised in this paper.
OBJECTIVES
The researcher seeks to look into appearance of parties and consequences of non appearance visà-vis Order IX CPC.
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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 5
CONNOTATION OF THE WORD “APPEARANCE”................................................................. 6
DISMISSAL OF THE SUIT FOR THE LACKING OF PROCESS FEE BY THE PLAINTIFF . 8
CONSEQUENCES OF NON-APPEARANCE BY EITHER PARTY .......................................... 9
CONSEQUENCES OF NON-APPEARANCE BY PLAINTIFF ................................................ 10
CONSEQUENCES OF NON-APPEARANCE BY DEFENDANT ............................................ 11
CONCLUSION ............................................................................................................................. 15
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INTRODUCTION
Appearance and non-appearance of parties during trial before the court is a crucial issue to resolve civil dispute. Mere appearance or non- appearance can determine the outcome of a civil litigation. The provisions of the Code of Civil Procedure (CPC), 1908 are based on a general principle that, as far as possible, no proceeding in a court of law should be conducted to the detriment of any party in his/her absence. In law, appearance means appearance in person or through advocate for conducting a case. However, appearance by a pleader within the meaning of CPC does not mean mere presence in the court; it means “appearance by a pleader” duly instructed and able to answer all material questions relating to the suit. The appearance of parties is crucial to the progress of the suits. Substantive justice demands that if the matter is decided on merits, then the parties must be given the best possible chance of making their case, which depends on the appearance of parties. This however, is subject to them knowing of the existence of such proceedings, which is done through the process of issuing summons, after which the parties are expected to come and present their case on the appointed date. Order 9 deals with the appearance and non-appearance of parties and the consequences of such actions. It enumerates the provision of consequences of appearance and non-appearance of parties in a civil litigation.
Rule 2 enumerates the consequence of failure to pay the costs. Rule 3 provide the
consequences of non appearance of both the parties to the suit. Rule 6 and Rule 11 enumerates the consequences of non-appearance of the defendant(s). Rule 8 and Rule 10 deals with the provision of nonappearance of the plaintiff(s). The same is discussed in detail in the following pages.
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CONNOTATION OF THE WORD “APPEARANCE” The word "appearance" has nowhere been defined in the Code. This necessitates an examination of the meaning of the word "appearance" used in various Rules. Order 3, Rule 1 prescribes that any appearance, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader. Order 5, Rule 1, Sub-rule (2) says that a defendant to whom summons has been issued under Sub-rule (1) may appear in person, or by a pleader duly instructed and able to answer all material questions relating to the suit, or by a pleader accompanied by some person able to answer all such questions. Order 5, Rule 3 lays down that where the Court sees reason to require the personal appearance of the defendant, the summons shall order him to appear in person in Court on the day therein specified, and where the court sees reason to require the personal appearance of the plaintiff on the same day, it shall make an order for such appearance. As observed by the Hon'ble Supreme Court, albeit in a different context, in State of West Bengal v. Pranab Ranjan Roy1 : "Order 41 Rule 17 of the Code deals with the consequence when the appellant in an appeal does not "appear". In all such instances, "appearance" would include appearance by the advocate, because it is made so clear in Order 3 Rule 1 of the Code that any appearance required by law to be made in any court may be made "by the party in person, or by his recognized agent or by his pleader on his behalf". P.B. Mukherjee J. observed in Debendra Nath Dutt v. Smt. Satyabala Dasi and Ors2: “The words "appear" and "non-appearance" must be read and construed so as to mean and include not merely appearance by the party himself but also appearance through recognised agents and solicitors on the original side who hold power of attorney. These words in Rule 8 and Rule 9 of Order 9 of the Code should, in my opinion, be read and interpreted in accordance with the meaning of the word "appearance" as provided by Rule 1 and Rule 2 of Order 3 of the Code.” Thus, “appearance” means appearance in person or through pleader prepared to conduct the case. As to the meaning of the word "appearance" there is some conflict of authority. The matter was considered by a Full Bench of five Judges of the Calcutta High Court in Satis Chandra v. Ahara Prasad3. Sir Ashutosh Mukherji's view in the referring judgment may be quoted "The term "appearance" is nowhere defined in the Code and, as pointed out by Benson, J. has several significations; the word must always be understood in reference to the particular subject matter to which it 1
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State of West Bengal v. Pranab Ranjan Roy, (1998) 3 SCC 209 Debendra Nath Dutt v. Smt. Satyabala Dasi And Ors, AIR 1950 Cal 217, 54 CWN 110 Satis Chandra v. Ahara Prasad, ILR 34 Cal 403
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relates, and the purpose or end to be answered by the appearance has an important bearing in determining what is sufficient to constitute appearance in a particular case." In Sikandar Ali v. Kushal Chandra4, the Lordships observed as to what appearance means: "The word 'appearance' apparently means appearing in the suit. A party may be present in the precincts of the Court or he may be found present in the Court room. But if he does not take part in the suit, it cannot be said that he has appeared. This is what is meant by Order 9, Rules 6 and 8. If a plaintiff comes to Court and files an application for adjournment and when the application is refused, he retires from the suit, though he may not have physically retired from the Court, he is not to be considered any longer to be present in the suit and any order passed in such circumstances must be taken to be an order passed ex parte." The trend of the later decisions has been not to treat mere physical presence of a pleader as appearance. Mukherjee J. observed that if the pleader is unable to answer all material questions relating to the suit, to treat his mere physical presence as appearance would defeat the policy of the law and the course of justice5. G.K. Misra, J. rightly pointed out, “The hub of the administration of justice is not the Court but the party. The Court is merely a machinery. Mere presence of a party most often would not conduce to or subserve the interest of the party in establishing his case.”6
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Sikandar Ali v. Kushal Chandra, AIR 1932 Cal 418
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Supra Note3
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Mulia Maharana v. Narayan Patra And Anr, AIR 1964 Ori 246
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DISMISSAL OF THE SUIT FOR THE LACKING OF PROCESS FEE BY THE PLAINTIFF Order 9 Rule 2 states: “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 of postal charges (if any) chargeable for such service, [or to present copies of the plaint or concise statements, 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.” Therefore under Order 9 Rule 2, there is a clear provision that if the summons is not served upon the defendant, in consequence of the failure of the plaintiff to pay Court-fee or postal charges, if any, chargeable for such service or to present copies of the plaint or concise statements, as required by Order 7 Rule 9, Court may make order that the suit be dismissed, and no appeal lies from such order of dismissal as it is a form of dismissal for default and not a decree. The plaintiff’s remedy lies under r4 of O9. The thrust, therefore, is on the inaction on the part of the plaintiff and it is clear that while after filing the suit the plaintiff remains inactive, by not making the payment of Court-fee or postal charges chargeable for such service or fails to present copies of the plaint or concise statements, then the Court would be justified in dismissing the suit.7 Therefore, the whole suit cannot be dismissed where the plaintiff had failed to serve on some of the defendants.8 R4 stands amended by the Amending Act of 2002. This amendment is intended to be time saving step as it would require the plaintiff to be vigilant enough to file the process fee and the required copies of plaint within seven days from the date of order of summons as required by r9 of O7.Although, it is not in consonance with the provisions of r9 of O7 as failure to comply with the said provision would lead to rejection of plaint under r11 of O7 but by the 2002 amendment, the court is empowered to dismiss the suit in case of non-compliance of r9 of O7. It is, however, not obligatory upon the court to dismiss the suit. It is to be noted here that in Salem Advocate Bar Assn. v. Union of India9 wherein while considering the effect of the amendments introduced in the Code by the amending Acts 46 of 1999 and 22 of 2002, it was observed in Para 16 that the attention of the Court had been drawn to Order 7 Rule 11 to which Clauses (e) and (f) had been added which enabled the Court to reject the plaint where it is not filed in 7
NPR Finance Limited v. Deepak Jhunjhunwala, MANU/WB/0027/2010
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Ramanand Singh v. Chandrama Singh, AIR 1921 Pat 422
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Salem Advocate Bar Assn. v. Union of India, AIR2003SC189
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duplicate or where the plaintiff failed to comply with the provisions of Rule 9 Order 7. The Apex Court was of the view that the said Clauses being procedural would not require the automatic rejection of the plaint at the first instance. If there was any defect as contemplated by Rule 11(e) or non-compliance as referred to in Rule 11(f), the Court should ordinarily give an opportunity for rectifying the defects and in the event of the same not being done, the Court will have the liberty or the right to reject the plaint.
CONSEQUENCES OF NON-APPEARANCE BY EITHER PARTY (a.) Order 9 Rule 3 states: “Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.” Rule 3 contemplates neither party appearing when the suit is called on for hearing. It requires appearance of the parties when the suit is called on for hearing and not appearance in the suit itself or even physical presence of a party in the Court room, if he chooses to be silent, and does not respond to the call.10 From the wordings of the provision it is clear that that the dismissal under this rule is not a decree but an order. Therefore, where the suit is dismissed under Rule 3, the plaintiff may either bring a fresh suit, or he may apply for an order to set the dismissal aside under Rule 4. (b.) Order 9 Rule 4 states: “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.” From bare reading of the aforesaid provision i.e. Rule 4 of Order 9 CPC, it is manifestly clear that under Rule 4 of order 9 CPC, the legislature in express term has not precluded the plaintiff from filing a fresh suit on the same cause of action in the event suit is dismissed under Rule 2 or Rule 3 of Order 9 CPC, i.e., the two remedies prescribed by Rule 4 are not mutually exclusive. In the case of Balkesia v. Mahant Bhagwan Gir11, a similar question
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Suraj Prasad Singh and Anr. v. Rambaran Singh and Ors, AIR 1956 Patna 127
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Balkesia v. Mahant Bhagwan Gir, AIR 1937 Patna 9
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came for consideration before a Division Bench of the Patna High Court. In that case also taking the similar view His Lordship James, J. observed: “It appears to us that a reasonable reading of the rule provides that the plaintiff may bring a fresh suit or he may apply for a setting aside the dismissal. If he satisfies the Court and obtains an order setting aside the dismissal, he proceeds with his original suit. If having applied for an order to set aside the order of dismissal, he fails to satisfy the Court and his application is dismissed, he is left to his alternative remedy which is that he may, subject to the law of limitation, bring a fresh suit." Agreeing with the view His Lordship Rowland, J. has observed, “R. 4 in effect does not create but declares the right of bringing a fresh suit while at the same time permitting the plaintiff in the alternative to proceed with his original suit. The former option the plaintiff has as of right; the other option is available to him only if he can satisfy the Court that he had sufficient cause for the non-appearance or other default which led to the dismissal of the suit.” Note Rule 4 does not provide for any notice being given to the opposite party before restoring a suit.
CONSEQUENCES OF NON-APPEARANCE BY PLAINTIFF (a.) Order 9 Rule 8 states: “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 8 contemplates the defendant appearing and the plaintiff not appearing when the suit is called on for hearing. All that a defendant is entitled to under this rule is to have the plaintiff’s suit dismissed. When a suit is dismissed under this rule, the plaintiff is precluded from bringing a fresh suit for the same cause of action. He can however apply to the same court to set aside the order of dismissal under r9 on showing sufficient cause for his non-appearance. The dismissal of the suit does not operate as ‘res judicata’. It only imposes a disability on the plaintiff. It is a rule of estoppels which has found statutory recognition in O9, R812. This Rule is based on sound public policy. The principle underlying this provision is that a litigant who comes to Court with a cause should agitate the matter with due diligence and take a decision on merits, so that finality is reached. Otherwise, there would not be any finality, and the opposite party could be harassed endlessly, by allowing the proceedings to be dismissed for non-prosecution and re-agitate the 12
D. Sangya Naik v. Dept. of Telecom Delhi, AIR 2005 NOC 231
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matter time and again at his convenience and leisure. Then this judicial process would become an instrument of oppression rather than a means to resolve disputes in a civilized way. Therefore, it is a rule of estoppels which prevents the party from filing a suit on the same cause of action, if the earlier suit is dismissed for non-appearance. (b.) Order 9 Rule 9 states: “(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 nonappearance 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. (2.) No order shall be made under this rule unless notice of the application has been served on the opposite party.” Thus it is clear from the wording of the provision that the Court gets jurisdiction to consider an application under this rule, only if an order has been passed under r8 for non appearance. If there were no provision like Order 9, Rule 9, the plaintiff would suffer irreparable loss by dismissal of his suit even if he had sufficient cause for his non-appearance, such as contemplated in Order 9, Rule 9.
CONSEQUENCES OF NON-APPEARANCE BY DEFENDANT (a.) Order 9 Rule 6 states: “(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. 11
(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.” Discussing the scope of r 6(1)(a), the Supreme Court observed that it is confined to the first hearing in the suit and does not per se apply to subsequent hearings13. Dealing with the meaning of the words "The Court may proceed ex parte" in O. IX, r. 6(1)(a) Bose J. speaking for the Court said :"When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ex parte order. Of course the fact that it is proceeding ex parte will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ex parte decree or other ex parte order which the court is authorised to make. All that rule 6(1)(a) does is to remove a bar and no more. It merely authorises the Court to do that which it could not have done without this authority, namely to proceed in the absence of one of the parties." And referring to the effect of the rejection of application made under O. XI, r. 7, he added: "If a party does appear on the day to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing. But though he has the right to appear at an adjourned hearing, he has no right to set back the hands of the clock. Order IX. r. 7 makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in." Thus, the nature of the adjudication which the court makes under O. IX, r. 7, in its essence, is directed to ensure the orderly conduct of the proceedings by penalising improper dilatoriness calculated merely to prolong the litigation. It does not put an end to the litigation nor does it involve the determination of any issue in controversy in the suit. Dealing next with the scheme of the Code, the learned Judge pointed out that the manner in which the Court could thereafter proceed i.e., after r. 6(1)(a) was passed would depend upon the purpose for which the suit stood adjourned, and proceeded : "If it is for final hearing, an ex parte decree can be passed, and if it is passed, then O. IX, r. 13 comes into play and before the decree is set aside the Court is required to make an order to set it aside.” A defendant, against whom an ex parte decree has been passed under r 6 for default of appearance at the hearing, has the following courses open to him as remedies14: (i) (ii)
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He may appeal from the ex parte decree under s 96; He may apply for a review of judgment under O 47, r 1;
Sangram Singh v. Election Tribunal, AIR 1955 SC 425 Awadh Narain v. Bhindeshwari, AIR 196 AP 79
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(iii)
He may apply under r 13 for an order to set aside the ex parte decree, provided the application is made within 30 days from the date of the decree, or where the summons were not duly served, when he had knowledge of the decree, the relevant provision now would be Art. 123 of the Limitation Act 1963.
(b.) Order 9 Rule 13 states: “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 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.] [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.] O. IX, r. 13 is a specific statutory remedy provided by the Code for the setting aside of ex parte decrees.15 The Supreme Court in its Judgment Parimal v. Veena16 has examined the provisions of Order IX Rule 13 of the Code of Civil Procedure, 1908. – “In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defense. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application.”
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Arjun Singh v. Mohindra Kumar and Ors, AIR 1964 SC 993
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Parimal v. Veena, AIR 2011 SC1150
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The legislative attempt incorporating the Explanation to Order IX Rule 13 is to confine the defendant, to either one of the remedies made available to him and not both. Dismissal of the appeal on any ground, apart from its withdrawal constituted a bar on the jurisdiction of the trial court to set aside the ex-parte decree. The scope of explanation to Order IX Rule 13 was considered by this Court in Rani Choudhury v. Lt. Col. Suraj Jit Choudhury17. It was held: "The Code of Civil Procedure (Amendment) Act, 1976 was enacted with the avowed purpose of abridging and simplifying the procedural law. By enacting the Explanation, Parliament left it open to the defendant to apply under Rule 13 of Order 9 for setting aside an ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him. The withdrawal of the appeal was tantamount to effacing it. It obliged the defendant to decide whether he would prefer or have the decree set aside by the trial court under Rule 13 of Order 9. The legislative attempt incorporated in the Explanation was to discourage a two-pronged attack on the decree and to confine the defendant to a single course of action. If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground, he was denied the right to apply under Rule 13 of Order 9. The disposal of the appeal on any ground, whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation." Similarly, the legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein. The approach of the court while dealing with an application under Order IX, Rule 13 Code of Civil Procedure would be liberal and elastic rather than narrow and pedantic. However, in case the matter does not fall within the four corners of Order IX, Rule 13 CPC, the court has no jurisdiction to set aside exparte decree. The manner in which the language of the second proviso to Order IX, Rule 13 Code of Civil Procedure has been couched by the legislature makes it obligatory on the appellate Court not to interfere with an ex-parte decree unless it meets the statutory requirement.
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Rani Choudhury v. Lt. Col. Suraj Jit Choudhury, 1982 (2) SCC 596
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CONCLUSION The appearance of parties is crucial to the progress of the suits. Substantive justice demands that if the matter is decided on merits, then the parties must be given the best possible chance of making their case, which depends on the appearance of parties. This however, is subject to them knowing of the existence of such proceedings, which is done through the process of issuing summons, after which the parties are expected to come and present their case on the appointed date. Order 9 deals with the appearance and non-appearance of parties and the consequences of such actions. Rule 1 of this Order requires that the parties to the suit shall be present at the time when the defendant is supposed to appear as per the summons. Rule 12 holds that where, a plaintiff or a defendant has been asked to appear and he does not appear, or does not subsequently show good cause for not appearing, in the case of a plaintiff, the suit shall be dismissed, while in the case of the defendant the suit shall be decided ex parte. While the rule with respect to appearance seems rather strict, it must be mentioned that the judicial interpretation in this regard is that the parties must be given a few chances before they are either placed ex parte or the suit is dismissed. Furthermore, where the suit is dismissed, the plaintiff is not entitled to file a suit on the same cause of action, but may apply for the setting aside of the dismissal of the suit. For this of course sufficient cause has to be shown for the non appearance. The court in these cases looks at whether the plaintiff or the defendant had the honest intention to appear but could not do so or failed to do so for some other reason which might not convince the court of sufficient reason, but might still show the court, that the party intended to come. The provisions with respect to appearance clearly show, that the code intends that the proceedings must go on speedily with the parties present at all times when they are required to be present, while at the same time being sensitive to the fact that there might be genuine reasons for the parties not being able to appear and under such circumstances not penalizing them.
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REFERENCES
1. Mulla The Code of Civil Procedure, B.M. Prasad and Manish Mohan, 18th ed.2011, Vol. II, Wadhwa and Company Nagpur.
2. Sarkar on The Code of Civil Procedure, Sudipto Sarkar and V.R. Manohar, 11th ed.2012 (rep.), Vol. I, Wadhwa and Company Nagpur.
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