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List of Abbreviations

SCC: Supreme court cases HC: High court SC: Supreme Court i.e.: That is pg.: Page no Air-All India Report Sec: Section Para: Paragraph Ed: Edition Vole: Volume Art: Article

TABLE OF CONTENT.1. HISTORICAL BACKGROUND(A).APPEARANCES..42. ISSUE OF THE CASE..63. APPEARANCES OF PARTIES AND CONSEQUENCESE OF NON-APPEARANCES (A).APPEARANCES OF PARTIES AND CONSEQUENCESE OF NON-APPEARANCES...6 (B). APPEARANCES OF THE PARTIES.8 (C). CONSEQUENCESE OF NON-APPEARANCES OF BOTH THE PARTIES.9 (D). SETTING ASIDE DECREE EX PARTE AGAINST DEFANDENT9 (E). WHEN NIETHER PARTY APPEARANCES SUIT TO DISMISSED...9 (F). PROCEDURE WHEN ONLY PLAINTIFF APPEARS11 (G).EX-PARTE DECREE.12 (H). PROCEDURE WHERE THE DEFANDENT APPERS ON DAY OF ADJOUNRED HEARING AND ASSIGNS GOOD CAUSE FOR PRVISIOUS NON-APPEARANCE. [SEC. 101]12 (I).PROCEDURE WHEN DEFENDANT ONLY APPEARS.14 (J). DECREE AGAINST PLAINTIFF BY DEFULT BARE FRESH SUIT16 (K).SETTING ASIDE DECREE EX--PARTE AGAINST DEFANDENT. [SEC. 108]...19 (L).NO DECREE TO BE SET ASIDE WITHOUT NOTICE TO OPPOSITE PARTY. [SEC. 109].234. CONTENTION ON THE BEHLF OF THE APPELENT..235. CONTENTION ON THE BEHALF OF THE RESPONDENT.246. DECISION OF THE COURT...247. PRINCIPAL LAIDDOWN.268. CONCLUSION279. BIBLIOGRAPHY28

1. HISTORICAL BACKGROUND(A).AppearanceAcomingintocourtbyapartytoasuit,eitherinpersonorthroughanattorney,whetherasplaintiffordefendant.Theformalproceedingbywhichadefendantsubmitstothejurisdictionofthecourt.Thevoluntarysubmissiontoacourt'sjurisdiction.Inacriminalprosecution,anappearanceistheinitialcourtproceedinginwhichadefendantisfirstbroughtbeforeajudge.TheconductofanappearanceisgovernedbystateandfederalrulesofCriminal Procedure.Therulesvaryfromstatetostate,buttheyaregenerallyconsistent.Duringanappearance,thejudgeadvisesthedefendantofthechargesandofthedefendant'srights,considersbailorotherconditionsofrelease,andschedulesaPreliminaryHearing.Ifthecrimechargedisamisdemeanor,thedefendantmaysometimes,dependingonthelocalrulesofcourt,enterapleaofguiltyornotguiltyattheinitialappearance;ifthecrimeisafelony,thedefendantusuallyentersthepleaatalatercourtproceeding.Acriminaldefendantmayhaveanattorneypresentandmayconferwiththeattorneyduringtheappearance.Insomesituations,adefendantmaynotneedtoappearincourtinpersonandmayevenmakeanappearancebymail.Forexample,whenindividualsreceivetrafficticketstheymaychoosetosendinacheckfortheamountofthefine. Manystatestatutespermitappearancestobemadebytwo-way,closed-circuittelevision.Forinstance,NorthCarolina'sruleonvideoappearancesreads:Afirstappearanceinanoncapitalcasemaybeconductedbyanaudioandvideotransmissionbetweenthejudgeanddefendantinwhichthepartiescanseeandheareachother.Ifthedefendanthascounsel,thedefendantshallbeallowedtocommunicatefullyandconfidentiallywithhisattorneyduringtheproceeding.Anypartycanappeareitherinpersonorthroughanattorneyoradulyauthorizedrepresentative;thepartyneednotbephysicallypresent.Inmostinstances,anattorneymakestheappearance.Anappearancecanalsobemadebyfilinganoticeofappearancewiththeclerkofthecourtandtheplaintiff,whichstatesthatthedefendantwilleithersubmittotheauthorityofthecourtorchallengeitsjurisdiction.Inalawsuitinvolvingmultipledefendants,anappearancebyoneisnotanappearancefortheothers.ValidService of Processisnotrequiredbeforean appearancecanbemade.Historically,appearanceshavebeenclassifiedwithavarietyofnamesindicatingtheirmannerorsignificance.Acompulsoryappearanceiscompelledbyprocessservedontheparty.Aconditionalappearanceiscoupledwithconditionsastoitsbecomingorbeingtakenasageneralappearance(definedlaterinthisarticle).Acorporalappearanceindicatesthatthepersonisphysicallypresentincourt.Adebeneesse(Latin,"ofwellbeing,"sufficientforthepresent)appearanceisprovisionalandwillremaingoodonlyuponafuturecontingency.Agratis(Latin,"free"or"freely")appearanceismadebyapartytotheactionbeforetheserviceofanyprocessorlegalnoticetoappear.Anoptionalappearanceisenteredbyapersonwhoisinterveningintheactiontoprotecthisorherowninterests,thoughnotjoinedasaparty.Asubsequentappearanceismadebyadefendantafteranappearancehasalreadybeenenteredforhimorherbytheplaintiff.Finally,avoluntaryappearanceisenteredbyaparty'sownwillorconsent,withoutserviceofprocess,althoughprocessmightbeoutstanding.Thetwomostcommoncategoriesofappearancesaregeneralandspecial.General appearance Bymakingageneralappearance,thedefendantagreesthatthecourthasthepowertobindherorhimbyitsactionsandwaivestherighttoraiseanyjurisdictionaldefects(e.g.,byclaimingthattheserviceofprocesswasimproper).Thedefendantalsowaivestheobjectionthatthecaseisbroughtinthewrongvenue.Thedefendantdoesnot,however,waiveanysubstantiverightsordefenses,suchastheclaimthatthecourtlacksjurisdictionoverthesubjectmatterofthecaseorauthoritytoheartheparticulartypeofcase(e.g.,aBankruptcycourtwillno theirpersonalinjurycases).Special appearances Aspecialappearanceisonemadeforalimitedpurpose.Itcanbemade,forexample,tochallengethesufficiencyoftheserviceofprocess.Butmostoften,aspecialappearanceismadetochallengethecourt'spersonaljurisdictionoverthedefendant.ItpreventsadefaultjudgmentfrombeingrenderedagainstthedefendantforfailingtofileaPleading.(Adefaultjudgmentisanautomaticlossforfailingtoanswerthecomplaintproperly.)Whenadefendantmakesaspecialappearance,nootherissuesmayberaisedwithoutthatappearance'sbecomingageneralappearance.Ifapartytakesanyactiondealingwiththemeritsofthecase,thepartyisdeemedtohavemadeageneralappearanceandsubmittedtothejurisdictionofthecourt.Ifachallengeissuccessfulandthecourtagreesthatitdoesnothavepersonaljurisdictionoverthedefendant,itwilldismisstheaction.Ifthecourtfindsagainstthedefendantonthatissue,thatdecisioncanlaterbeappealed.2. ISSUE OF THE CASEHere in this case the issue is When an ex parte decree is passed the defendant has two clear options. One to file an appeal and another to file an application under O. 9, R. 13 to set aside the order. Once application under O. 9, R. 13 is dismissed, he cannot by filing first appeal dispute the correctness of order posting suit for ex parte hearing or show cause for his non-appearance; Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 6263. 3. APPEARANCES OF PARTIES AND CONSEQUENCESE OF NON-APPEARANCESWhere in any proceeding before the Court, if either party, in spite of notice of hearing having been duly served on it, does not appear, when the matter is called on for hearing the Court may either adjourn the hearing of the matter to a subsequent day, or proceed ex parte, and make such order as it thinks fit(1) Where any order is made ex parte under sub-section. (2), the aggrieved party may, within thirty days of the receipt of the copy thereof, make an application to the Court to set aside such order.If the Court is satisfied that there was sufficient because for non-appearance of the aggrieved party, it may set aside the order so made, and shall appoint a date for proceeding with the matter:Provided that, no order shall be set aside on any such application as aforesaid, unless notice thereof has been served on the opposite party.ORDER IX(A).APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE1. Parties to appear on day fixed in summons for defendant to appear and answer.2. Dismissal of suit where summons not served in consequence of plaintiff's failure to pay costs3. Where neither party appears, suit to be dismissed.4. Plaintiff may bring fresh suit or Court may restore suit to file.5. Dismissal of suit where plaintiff, after summons returned unserved, fails for three months to apply for fresh summons.6. Procedure when only plaintiff appears. When summons duly served. When summons not duly served. When summons served, but not in due time.7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.8. Procedure where defendant only appears.9. Decree against plaintiff by default bars fresh suit.10. Procedure in case of non-attendance of one or more of several plaintiffs.11. Procedure in case of non-attendance of one or more of several defendants.12. Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person.

Consequences of appearance & non-appearance of parties in civil litigation Introduction: Appearance and non-appearance is a major issue to settle a dispute. Because, mere appearance or non- appearance may determine the result of the suit. The provisions of the Code of Civil Procedure, 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 It is the duty of the concern party to appear before the trial court at a due time. Otherwise, the result may turn reverse to the non-appeared party. However, if the suit is determine at that date for the lacking of non-appearance of a party, the affected party may have a chance to revive the suit by following the provisions of The Code of Civil Procedure, 1908.Actually, Order-IX of the Code of Civil Procedure, 1908 enumerates the provision of consequence(s) of appearance and non-appearance of parties in a civil litigation. Especially, Order- IX, rule- 2 enumerates the consequence of failure of deposit of process fees by the plaintiff; rule- 3 & 4 provides the consequence of non-appearance of both (Plaintiff & Defendant) parties. Rule- 8, 9, 9A enumerates the consequences of non-appearance of Plaintiff and lastly rule- 6, 13 & 13A deals with the provision of non-appearance of Defendant. Lets us discuss all these three one by one.(B).APPEARANCES OF PARTIESRule 1 of Order IX deals with the provision of appearance of the parties. 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 1 requires the parties to the suit attend the Courthouse in person or by their respective pleaders on the day fixed in the summons for the defendant to appear. So the rule relates to the appearance of the first hearing of the suit.If the suit is, dismiss under O- 9, r- 8; then the plaintiff have two concurrent remedies:1. He may file a petition by swearing an affidavit to the concern court within 30 days from the date of such dismissal along with a fees not more than 1000Tk. And2. He may file a fresh suit. Sufficient cause has not been defined anywhere in the Code. It is a question of fact. It is determine by the fact and circumstances of each case.(C).CONSEQUENCES OF NON-APPEARANCES OF BOTH THE PARTIES On the date of peremptory or final hearing if both, the parties (Plaintiff & Defendant) absent from the hearing then the suit may dismiss according to O- IX, rule- 3. The rule said: Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.(D).SETTING ASIDE DECREE EX PARTE AGAINST DEFANDENTIn 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 sent aside as against all or any of the other defendant 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 plaintiffs claim.(E).WHERE NITHER PARTY APPEARS, SUIT TO BE DISMISSED [SEC- 98]

Where neither party appears when the suit is called on for hearing, the court may make an order that the suit be dismissed.

Where neither party appears- A sues B nor do C. A. and C not appear when the suit is called on for hearing but B appears. The court makes an order dismissing the suit. As between A and B the order is one under r 8, so as to attract the applicability of r 9. But as between A and C, there order is one under the present rules so that r 4 applies, and not r 9.[footnoteRef:1] [1: Damu v Vakrya (1920)44 Bom 767]

Unless a date has been fixed for the appearance of the defendant and neither party appears when the suit is called on for hearing on the day fixed, this rule will not apply.[footnoteRef:2] There can be no question of a suit being called on for hearing, unless there parties had been served, and where that had not been done, the suit cannot be dismissed under this rule for default of appearance of the plaintiff. [footnoteRef:3]This rule applies where there is default of appearance when the suit is called on for hearing and it is immaterial that there had been appearance, even earlier on that very date in an application in the suit. Mere physical presence is not appearance for the purpose of this rule.[footnoteRef:4] Where a judge is absent the clerk of the court has no power to fix the date and failure to appear on a date so fixed does not justify dismissal in default. [footnoteRef:5] [2: Ram Ranbijaya v Sakalpat Tewary AIR 1942 Pat 56] [3: Ram Reddy v Yenka Reddy 1956 Hyd 551] [4: Suraj Prasad v Rambaran AIR 1956 Pat 127] [5: Hukam Chand v Mani AIR 1934 Lah 984]

If the plaintiff appears on the date fixed for the hearing, but the defendant does not appear, and the suit is dismissed owing to failure on the part of the plaintiff to adduce evidence in support of his claim, the dismissal is on the merits and not under this rule. [footnoteRef:6] [6: Hingu Singh v Jhuri Singh (1918)40 All 590]

Where plaintiffs pleader appeared before the court and made a statement to the effect that his clients agent had informed him that the plaintiff would not precede with the case and the court dismissed the suit for default, the defendant being absent, it was held that the order was under this rule[footnoteRef:7]. When, on the defendants application, no order is passed but the suit is dismissed because the plaintiff did not appear, it has been held by the Orissa High Court that the dismissal order is not under this rules but under r 8. [7: Jaharlal v Jyoti Prasad(1938) 42 Cal WN 806]

Adjourned hearing. - This rule applies where there is default of appearance at the first hearing. Where the default takes place at an adjourned hearing, it is O 17 that applies. This rule does not apply after preliminary decree has been passed and a suit cannot be dismissed for default of appearance on an application for a final mortgage decree.[footnoteRef:8] If a tribunal passes an order on the merits in the absence of both parties, that is opposed to natural justice. [footnoteRef:9] [8: Chandra v Amir (1927)49 All 592] [9: Madhao Narayan v Ragho Niloo AIR 1970 Bom 132]

(F).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 parts. (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 plaintiffs 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.

Called on for hearing -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 hearing.[footnoteRef:10] The word hearing is used in this rule in a technical sense and means a hearing in which the Judge takes evidence, or hears arguments on questions arising for adjudication on the rights of the parties in the suit, and not one in which interlocutory matters are to be disposed, such as the report of a Commissioner. [footnoteRef:11] [10: Sangram Singh v Election Tribunal 1955(2)SCR 1] [11: Sohan Singh v Hans Raj AIR 1960 Punj 34]

(G).EX-PARTE DECREEIf the defendant does not appear, and it is proved that the summons was duly served upon him, the court may proceed ex parte. If the plaintiff makes out a prime facie case, the court may pass a decree for the plaintiff. If the plaintiff fails to make out a prima facie case, the court may dismiss the plaintiffs suit. Every Judge in dealing with an ex parte case should take good care to see that the plaintiffs case is at least prima facie proved. The mere absence of the defendant does not of itself justify the presumption that the plaintiffs case is true. The court has no jurisdiction to pass an ex parte decree without any evidence being given by or on behalf of the plaintiff[footnoteRef:12], and the provisions of O 8 r 10 apply only when the court has under O 8 r9 required the defendant to file a written statement.[footnoteRef:13] The amendment of O 8 r 10 in 1976 has, however, altered the position in this respect. The court has no power to pass an ex parte decree before the returnable date mentioned in the summons.[footnoteRef:14]As to the effect of an order declaring the defendant ex parte in subsequent proceedings, see the undermentioned cases. [footnoteRef:15] [12: Ross & Co v Scriven 43 Cal 1001] [13: Moopan v Karuppanna 6 Rang 446] [14: Dhirajlal v Hormusji 32 Bom 534] [15: Ramji Dass v Bhunpender Singh AIR 1962 Punj 443]

Minors- Where applications for appointment of a guardian ad litem have been already made, the passing of an ex parte decree against the minor is highly improper.

(H).PROCEDURE WHERE THE DEFANDENT APPEARS ON DAY OF ADJOUNRED HEARING AND ASSIGNS GOOD CAUSE FOR PRVISIOUS NON-APPEARANCE. [SEC. 101]

Where the Court has adjourned the hearing of the suit 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 cost or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. This rule has no application where the defendant merely desires to proceed from the stage at which he appears. It is only when he wants the court to go back on what has been done that he must apply under this rule.[footnoteRef:16] The contrary view takes in the decisions noted below is no longer good law.[footnoteRef:17] Nor does it apply when the entire hearing has been completed and the case is merely adjourned for judgment.[footnoteRef:18] The Election Commissioner has no jurisdiction to set aside under this rule, an order made by him. [footnoteRef:19] [16: Sangram Singh v Election Tribunal 1955(2) SCR 1] [17: Tulsi Devi v Sri Krishna 1950 All 6] [18: Arjun Singh v Mohindra Kumar AIR 1964 SC 993] [19: Koti Reddi v Venkayya AIR 1951 Mad 813]

Counsels affidavit- In a Delhi case, counsel for the defendant filed (along with an application under O 9 r 7) his own affidavit to the effect that he was busy in his personal matter and therefore could not attend the court when the suit was called out by the court. He also stated that when he reached the court 10.15 am he came to know about the order regarding ex parte hearing. This was held to be a good cause for the absence of the counsel. [footnoteRef:20] [20: Delhi Develpoment Authority v Shanti Devi AIR 1982 Del 159]

Service in appeal-In a Petition to the Supreme Court for special leave to appeal against a decree passed by the High Court in second appeal, it had been stated that the principal respondent had not been served with notice of appeal. The Supreme Court remanded the case to the High Court for disposal according to law. In a suit filed on behalf of the plaintiff for a declaration that he was the3 licensee of the premises in question and had a right to remain in possession thereof for the period mentioned in the plaint, it is not open to the defendant to make a prayer for eviction of the plaintiff by way of counter-claim. The order of the trial court allowing the defendant to make a counter-claim against the plaintiff and also allowing him to pray for a decree for eviction of the plaintiff, in the suit which had been filed on behalf of the plaintiff, amounted to an exercise of jurisdiction illegally and with material irregularity, and was liable to be set aside in revision.[footnoteRef:21] On a plaint being amended by changing the suit for declaration into one for possession, defendants are entitled to take the plea of adverse possession which they could not take earlier. [footnoteRef:22] [21: Jaswant Singh v Darshan Kaur AIR 1983 Pat 132] [22: Dhapon v Vijay Singh (1980) Rev LR 52]

Exparte order -An ex parte order was made on a certain date, and on the next date of hearing, an application for setting aside that order was made. It was held that the application could not be dismissed on the ground that it was not filed within thirty days; as no limitation period is prescribed for such an application. [footnoteRef:23] [23: Delhi Development Authority v Shanti Devi AIR 1982 Del 159]

Appeal and res judicata-Where the court refuses to set aside an ex parte decree, the order itself is not appealable, But the fact that the defendant thereafter does not participate in later proceedings does not operate as res judicata so as to prevent him from appealing against the main decree.

(I).PROCEDURE WHERE DEFANDENT ONLY APPEARS. [SEC. 102]Where there 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.

Scope of the Rule-This rule would not apply where the suit is dismissed for the plaintiffs non-appearance on a date fixed, not for the hearing of the suit but for some interlocutory matter. [footnoteRef:24] [24: Sheik Mohamad v Mt Ruknina Kunwar AIR 1946 All 506]

One of the defendants was ex parte, and the others contested the suit. The suit was dismissed under this rule for non-appearance of the plaintiff when it was called for hearing. The plaintiff then applied to get the decree amended by granting him an ex parte decree against the defendant who was ex parte. But the plaintiffs application was dismissed on the ground that by remaining ex parte, the defendant cannot be held to have admitted the claim. [footnoteRef:25] [25: K G Mani v Leutin AIR 1955 Mys 2]

When the plaintiff does not appear, and the suit is decreed ex parte to the extent the defendant admits, and dismissed as to the rest, what is the remedy open to the plaintiff in respect of the portion dismissed?

Where only defendant appears-If neither party appears on the day fixed for the hearing of the suit, procedure laid down in r .3 is to be followed. If the plaintiff appears and the defendant does not appear, the procedure laid down in r 6 is to be followed. If the defendant appears and the plaintiff does not appears the procedure laid down in the present rule is to be followed. All that a defendant is entitled to under this rule is to have the plaintiffs suit dismissed. He is not entitled to call any evidence, even though it be to disprove charges of fraud or the like that may have been made against him in the plaint. [footnoteRef:26] [26: Kesri Chand v National Jute Mills Co (1913)40 Cal 119]

If the plaintiff does not appear- See notes to r 9 below, Appearance This rule does not apply to the case of non-appearance by reason of death. Where a sole plaintiff dies before the hearing of a suit, and the suit is dismissed for non-appearance under this rule, the fact of his death not being known to the court, there is inherent jurisdiction in the court under s 151 to set aside the dismissal, and thus rectify the mistake which has been inadvertently made. It is then for the legal representative of the plaintiff to apply to be brought on the record under O 22 r 3. Similarly, the rule does not apply if the plaintiff has been adjudged insolvent before the hearing, for there is no person on the record who has any right or duty to appear; and the court should not dismiss the suit, but should, under O 22 r 8 fix a time within which the Official Assignee may decide to continue the suit. Where on the day fixed for hearing, the plaintiff does not appear and the defendant appears but applies for time, and the court dismiss the suit for default, the order falls under this rule and not under r 4 above.

Remedies in case of dismissal under this rule-Notes to r 9 below Remedies in case of dismissal under r 8

The Court shall make an order that the suit be dismissed. These words have been substituted for the words the court shall dismiss the suit [Code of 1882, s182]. An order of dismissal under this rule for default of plaintiffs appearance is not a decree, and is not, therefore, appealable. See s 2(2) (b).

(J).DECREE AGAINST PLAINTIFF BY DEFAULT BARS FRESH SUIT. [SEC. 103]

(1) Where a suit is wholly or partly dismissed under r 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. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

Object-The rule barring a fresh suit is based on sound public policy. It is based on the well-established juristic principle that no defendant should be vexed twice on the same cause of action. This rule provides for restoration of suits dismissed under r 9 for non-appearance. It is condition for the application of this rule that there should be default on the part of the plaintiff. It has in consequence no application when the defendant had not been served[footnoteRef:27] or if the date of hearing had not been fixed or if the same had not been notified to the plaintiff. [27: Kudalayya v Sidilingappa 1958(1) And WR 166]

Probate proceedings- Provisions of O 9 r 9 are applicable to probate proceeding in view of s 141 of CPC and sec 268 and 295 of Succession Act.

Original side-Order 9 r 9 is attracted in the case of an order setting aside an order dismissing a suit for non-prosecution by a single Judge on the Original Side (High Court). As the provision is attracted, art 122 of the Limitation Act 1963 is also attracted. Therefore, such an application must be made within 30 days from dismissal as provided by the Limitation Act.

Hearing date-A pre-emption case was fixed for petitioner taking certain steps. He could not attend owing to illness and the case was dismissed for default.

It was held that: (a) The restoration could not be ordered under O 9 r 9. (b) But as the date was not for hearing, s 151 could be used.

Liberal approach-A liberal approach should be adopted in dealing with an apparition for restoration of a suit which is dismissed for default.

Limitation-An application for restoration cab be entertained even after limitation, if proper application for condo nation of delay is made.

Suit for partition-Order 9 r 9 applies to a situation where the suit is dismissed by a court for the reason that the defendant appears and the plaintiff does not appear. Similarly, O 9 r 13 deals with a situation where a court makes an ex parte decree against the defendant on the ground that he does not appear. Therefore, when a suit for partition is dismissed as withdrawn by the plaintiff to attract O 9 r (and also no ex parte decree was passed to attract O 9 r 13. Consequently, O 43 r 1 which provided for a right of appeal against any order made under O 9 r 9 would have no application. Where the court had granted permission to the plaintiff to withdrawn the partition suit without giving notice to all the contesting defendants, the court would be deemed to have acted without jurisdiction as the court had clearly denied the defendants their lawful right to prosecute the suit by getting transposed as plaintiffs and as such, the order granting permission would be liable to be set aside in exercise of powers of revision under s 115. Remedies in case of dismissal under r 8-A plaintiff, whose suit is dismissed under r 8 for default of appearance on the fixed for the hearing, cannot appeal from the order of dismissal, as such an order is not a decree [s 2 cl (2), sub-cl (b)] or a judgment so as to attract cl 15 of the Letters Patent but he may(1) Apply for a review of the order under O 47 r 1[footnoteRef:28], though the High Court of Bombay has held that since the decision of the Privy Council [footnoteRef:29]a plaintiff whose suit has been dismissed under r 8 has no remedy by way of review. The High Court of Calcutta was also inclined to the view taken by the Bombay High Court. [28: Raj Narain v Lakshmi Narayan (1925)49 Bom 839] [29: Chajju Ram v Neki(1922)49 IA 144]

Or he may-- (2) Apply under this rule for an order to set aside the order of dismissal.

He is entitled to apply for a review without a previous application to set aside the dismissal under this rule[footnoteRef:30]. The period of limitation for an application for a review of the order is ten days from the date of the order in the case of an order made by the Provincial Court of Small Causes, twenty days from the date of the order in the case of an order made by any of the Chartered High Court in the exercise of its original jurisdiction, and ninety days from the date of the order in other cases. The period of limitation for an application under this section is thirty days from the date of the dismissal of the suit. [30: Raj Narain v Ananga (1899)26 Cal 598]

The first remedy is open to any plaintiff whose suit has been dismissed, whatever the ground of dismissal may be, whether it is dismissed for default of appearance at the hearing or on the merits after a hearing. But the second remedy, that is, the remedy provided by this rule, can only be availed of by a plaintiff who does not appear at the hearing and the suit is dismissed for default of appearance under r 8 above. The remedy given by this rule is not open to plaintiff whose suit is dismissed on any ground other than default of appearance. Hence, if a plaintiffs suit is dismissed on his failure to establish his case by reason of non-attendance of his witness or for want of evidence, the dismissal is not under r 8 and he cannot, therefore, avail himself of the remedy provided by this rule.

(K).SETTING ASIDE DECREE EX--PARTE AGAINST DEFANDENT. [SEC. 108]

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 plaintiffs 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.

Amendment-The second proviso and the Explanation were inserted in 1976.

Application of the rule-This rule applies to proceedings in the High Court in the exercise of its original jurisdiction, to proceedings under s 30 of the Land acquisition Act 1984, under the provincial insolvency Act 1920, under the Hindu marriage act 1955,[footnoteRef:31] and under the Mysore Agriculturists relief Act 1947. It has been held that it has no application to a decree passed under s 17 of the Arbitration act 1940, as it cannot be said to be ex parte, nor to an ex parte order made under s 24 of the Bombay Agriculturists Debtors Relief Act 1947[footnoteRef:32], nor to an application to set aside a decree passed in a summary suit under O 37 r 4. [31: Sunanda v Gundopant 1961 Bom 296] [32: Mangilal v Shivram AIR,1956 Bom 755]

Ex parte decree obtained by fraud -A regular suit does not lie to set aside an ex parte decree, merely on the ground non-service of summons.[footnoteRef:33] But such a suit is maintainable on the ground of fraudulent suppression of summons. But where an ex parte decree is alleged to have been obtained by a plaintiff by fraud, the defendant is entitled to institute a regular suit to set aside the decree on the ground of fraud.[footnoteRef:34] Such a suit is maintainable even through the defendant was unsuccessful in his application, made under this rule, to set aside the ex parte decree and through he did not appeal against the order rejecting his application. It has been held that through neither non-service of summons nor the falsity of the claim is itself a ground for setting aside a decree on the ground of fraud, when once non-service is established, as also the falsity of the claim, fraud could be inferred and the ex parte decree set aside. [footnoteRef:35] [33: Narsingh Das v Rafikan (1910) 37 Cal 197] [34: Abdu v Mahomed(1894)21 Cal 605] [35: Girish Chandra v Kalachand 1958 (1)Cal 85]

Who can apply under this rule-A mortgagor who has sold the hypothec is entitled to apply under this rule[footnoteRef:36] and so also the purchaser in a court auction of the equity of redemption[footnoteRef:37]. Where an application by the vendor under O 9 r 13 was dismissed, the purchaser is entitled to file an appeal against the order[footnoteRef:38]. The legal representatives of a deceased judgment-debtor can also apply under this rule vide s 146 of the Code. A person who was not the defendant in the suit cannot apply to set aside an ex parte decree. A person who is not a party cannot apply. [36: Baljit Singh v Munnu Lal 1958 (1)All 389] [37: Shaligram v Pundalik 1955 Nag 569] [38: Dulhin Suga v Deorani Kuer AIR 1952 Pat 72]

Grounds on which ex parte decree may be set aside- These are stated in the second paragraph of the rule, the one being that the summons was not duly served upon the defendant and the other that though the summons was duly served, the defendant was prevented by sufficient cause from appearing when the suit was called on for hearing[footnoteRef:39]. A summons cannot be said to be duly served if it is a misleading document having no relevance to the real proceedings which are contemplated and having no reference to the order ultimately passed. When a summons was served upon a pardanashin lady, to whom the serving officer was not able to obtain access, by affixing a copy of the summons on the outer door of her dwelling house under O 5 r 17, and it appeared that the lady had no knowledge of the suit against her, the court set aside the ex parte decree passed against her on the ground that she was prevented by sufficient cause from appearing at the hearing of the suit. [footnoteRef:40] [39: Somayya v Subbamma(1903)26 Mad 599] [40: Kshirode v Nabin Chandra (1915)19 CWN 1231]

Inherent power of the court to set aside ex parte decree-Notwithstanding that a different view was taken in the decisions noted below, there is practical unanimity among the High Courts, that if no case is made out under O 9 r 13, the ex parte decree should not be set aside by resort to inherent power under s 151. The Supreme Court has approved the latter view. There is no inherent power to set aside an ex parte decree, where the case does not fall within O 9 r 13.

Whether this rule applies to execution proceedings -This rule does not apply to proceedings in execution of a decree. See notes to s 141 above. The rule does not apply even though the order passed in execution falls under s 47 and is, therefore, under s 2 deemed to be a decree.[footnoteRef:41] [41: Arunachalam v Veerappa(1932)55 Mad 17]

No service- The second proviso to O 9 r 13 does not apply where there is no service of summons at all; it covers only irregularities in service. The person claiming the benefit of the proviso must prove that all necessary conditions have been fulfilled.[footnoteRef:42] [42: Rampati Devi v Chandrika Devi AIR 1979 Pat 314,316]

Ex parte order -An ex parte order directing the attachment of the judgment-debtors property cannot be set aside under this rule.

Orders-An ex parte order under O 21 r 10 or an order restoring a claimant to possession cannot be set aside,[footnoteRef:43] nor an ex parte order under O 21 r 35 delivering possession to a decree holder purchaser, nor an order under O 21 r 93 confirming a sale. An application for a personal decree under O 34 r 6 is not an application in execution and so, an ex parte personal decree against a mortgagor may be set aside under this rule. [footnoteRef:44] [43: Haricharan v Manmatha (1914)41 Cal 1] [44: Babu Lal v Raghunandan (1930)52 All 839]

The principle of the rule has been extended to an application to set aside a decree for future mesne profits which the court has directed to be ascertained for execution.[footnoteRef:45] [45: Suryaprakasa v Sreeramula(1930)59 Mad LJ 918]

Application to set aside ex parte decree after it has been executed -The fact that an ex parte decree has been satisfied does not preclude the defendant from applying to the court for an order to set it aside under this rule. A obtains an ex parte decree against B, and attaches Bs goods in execution of the decree. B pays the amount of the decree under protest and applies for an order to set aside the decree on the ground that the summons was not served upon him. The court may make an order setting aside the decree, notwithstanding that the decree has been satisfied.[footnoteRef:46] [46: Zendoo Nal v Kishorilal ILR(1899)23 Bom 716]

Effect of setting aside ex parte decree-If an ex parte decree is set aside under this rule, the suit is restored. The suit is also restored if the ex parte decree is set aside in a suit not only the ground that the summons was suppressed. But if the ex parte decree is set aside in a suit not a only on the ground of suppression of summons by fraud, but also on the ground that the original claim was fraudulent, the suit itself cannot be restored or retried, for the issue, whether the plaintiff in the original suit had a right to obtain a decree against the defendant is barred by res judicata. This question has since been considered in a number of decisions and it has been held that when an ex parte decree is set aside in an independent suit on the ground of fraud in the service of summons, the original suit is revived, but not if it is set aside also on the ground of falsity of claim. The question as to under what category the case falls must be determined on a consideration of the pleadings, the issues, and the judgment.[footnoteRef:47] [47: Chandi Charan v Sarat Chandra AIR 1955 Assam 231]

Where, after an ex parte decree is set aside, the defendant again fails to appear at the hearing of the case, can a fresh decree be passed on the evidence recorded at the original hearing one view is that it cannot be, because the effect of setting aside the ex parte decree is to render the evidence recorded prior to it inadmissible. But the better opinion is that that evidence is admissible, as it is part of the record, though the defendant is entitled to cross examine the witnesses, and adduces rebutting evidence, and so a fresh decree can be passed on the basis of that evidence. An ex parte decree against a firm is not an ex parte decree against its partners and cannot be set aside on the application of a partner on the ground that he had not been served.

Section 144-In S. 144 words or other proceedings apply to proceedings under O 9 r 13.

Decree after stay-In an Allahabad case, the High Court had stayed proceedings in a suit, but the trial court, in ignorance of the stay order, passed an ex parte decree. It was held that the decree was liable to be set aside when the stay order was brought to the notice of the court. [footnoteRef:48] [48: Adireppa v Pragji AIR 1924 Bom 366]

(L).NO DECREE TO BE SET ASIDE WITHOUT NOTICE TO OPPOSITE PARTY. [SEC. 109]No decree shall be set aside on any such application as aforesaid unless, notice thereof has been served on the opposite part.4. CONTENTION ON THE BEHALF OF THE APPELENTPlaintiff filed suit for partition of suit premises. On the date fixed for evidence, nobody appeared for the defendants even after adjournments where after application was filed by the plaintiff that he had closed his evidence. Cost of Rs. 200 was imposed on the defendants with a stipulation that it cost was not paid, the right of cross-examination will be closed. On the next date defendant No. 1 was again absent, the case was posted ex parte against her and, cost having not been paid, the right to cross examine was forfeited. On the date fixed for final argument, the defendant No. 1 did not appear and the case was posted for delivery of judgment, on which date an application under O9 r7 was filed by the defendants (Respondents herein) for setting aside the order by which the suit was posted for ex parte hearing. The said application was rejected and a preliminary decree for partition in favour of the plaintiff was passed. Application under O9 r13 for setting aside the ex parte decree was dismissed and the appeal under O43 there against as well. The special leave petition filed against the appellate order came to be dis-missed as withdrawn. Thereafter, the defendants filed regular First appeal in the High Court which was allowed. In the meanwhile the plaintiff transferred his right, title and interest in favor of the present appellant. Hence, this appeal.It was contended by the appellant that subject matter of the application under O9 R13 and the regular First appeal being the same, allowing two parallel to continue is against public policy and, in any event, the claim of the respondent was hit by the Doctrine of issue Estoppel. As regards the counter claim of the respondent No. 2 it was contended that it was directed only against his mother in law and thus it could not have been enforced against plaintiff.5. CONTENTION ON THE BEHALF OF THE RESPONDENTThe respondents, on the other hand, contended that they were entitled to maintain an appeal against the ex parte decree and, in any event, were entitled to assail the judgment on merit of the matter. As regards the counter claim of respondent No. 2, it was contended that even if no written statement was filed the court may direct the parties to adduce evidence in which event the court may pass a decree only upon the satisfaction that the plaintiff has been able to prove his case. The restricted statutory right upon a party to the suit under Section 96(2) will always be available to assail the judgment if the plaintiff fails to prove his case. Contention on the issue that the appellant has no locus stand to maintain this appeal, as upon the death of the original plaintiff he has not been substituted in his place (in the proceeding pending before the High Court) was also advanced.6. DECISIONS OF THE COURTBhanuKumarJain RESPONDENT:ArchanaKumar& Anr. DATE OF JUDGMENT: 17/12/2004 BENCH: N. Santosh Hegde, B.P. Singh & S.B. Sinha JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) No. 6392 of 2003) S.B. SINHA, J. Leave granted.The Honable supreme court held that The remedies available to a defendant in the event of an ex-parte decree being passed against him in terms of Order 9 Rule 13 of the Code of Civil Procedure (Code) and the extent and limitation thereof is in question before us in this appeal which arises out of a judgment and order dated 19.12.2002 passed by the High Court of Madhya Pradesh at Jabalpur in First Appeal No. 109 of 1986. And principles of res judicata applies in different stages of the same proceedings. We, therefore, are of the opinion that although the judgment of the High Court cannot be sustained on the premise on which the same is based, the Respondents herein are entitled to raise their contentions as regards merit of the plaintiff's case in the said appeal confining their contentions to the materials which are on records of the case.We, however, do not agree with Mr. Ranjit Kumar that the Appellant herein has no locus stand to maintain this appeal. In terms of Order 22, Rule 10 of the Code he could have been substituted in place of the plaintiff. Even if he was not substituted in terms of the aforementioned provision, an application under Order 1, Rule 10 of the Code on his behalf was maintainable as he became the legal representative of the original plaintiff.For the view we have taken, it is not necessary for us to examine the claim of the original plaintiff for partition of suit properties or claim of the Respondent No. 2 herein as regard creation of a mortgage in relation thereto by the original defendant No. 1 and/ or efficacy thereof. We refrain ourselves from even considering the submission of Mr. Choudhari to the effect that even otherwise the Respondent No. 2 herein could not have raised a counter claim in the partition suit vis-`-vis the plaintiff and the effect, if any, as regards his non-filing of an appeal relating to his counter claim. We may notice that Mr. Choudhari has further contended that in terms of Order 17, Rule 2 of the Code in the event, in the suit which was adjourned and if on the date of adjourned date the defendant did not appear, the court has no other option but to proceed ex-parte. The High Court, in our opinion, should be allowed to examine all aspects of the matter.For the reasons aforementioned, we are of the opinion that although the judgment of the High Court is not sustainable as the reasons in support thereof cannot be accepted, the High Court for the reasons assigned hereinbefore must examine the Respondents' claim on merit of the matter.The Appeal is, therefore, allowed, the impugned judgment is set aside and the case remitted to the High Court for consideration of the case of the parties on merit of the matter. As the suit is pending since 1976, we would request the High Court to dispose of the appeal at an early date and preferably within a period of three months from the date of communication of this order. No costs7. PRINCIPAL LAIDDOWNSupreme Court of India BhanuKumarJain v.ArchanaKumar& Anr on 17 December, 2004 Author: S Sinha Bench: N. Santosh Hegde, B.P. Singh, S.B. Sinha CASE NO.: Appeal (civil) 8246 of 2004 PETITIONER: BhanuKumarJain RESPONDENT:ArchanaKumar& Anr. DATE OF JUDGMENT: 17/12/2004 BENCH: N. Santosh Hegde, B.P. Singh & S.B. Sinha JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) No. 6392 of 2003) S.B. SINHA, J. Leave granted. The remedies available to a defendant in the event of an ex-parte decree being passed against him in terms of Order 9 Rule 13 of the Code of Civil Procedure (Code) and the extent and limitation thereof is in question before us in this appeal which arises out of a judgment and order dated 19.12.2002 passed by the High Court of Madhya Pradesh at Jabalpur in First Appeal No. 109 of 1986. The fact of the matter relevant for the purpose of this appeal is as under: One Shri N.N. Mukherjee was the owner of the premises in suit. He died leaving behind his wife Smt. Suchorita Mukherjee, (original defendantShri P.P. Mukherjee, (original plaintiff) and daughter Smt.ArchanaKumar, (original defendant No. 2). The family is said to be governed by Dayabhag School of Hindu Law. The original plaintiff filed a suit for partition in the year 1976. The original defendants filed their written statements. Respondent No. 2 herein, Surender NathKumarwho is husband of Smt.ArchanaKumar, 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)

8. CONCLUSIONThis case is belongs to appearances of parties and consequences of non-appearances, and the exparte decree, and res judicata and Estoppel are not same. Here in this case the principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation, When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct." And it case also provide that When an ex parte decree is passed the defendant has two clear options. One to file an appeal and another to file an application under O. 9, R. 13 (application to set aside exparte Decree) to set aside the order. Once application under O. 9, R. 13 is dismissed, he cannot by filing first appeal dispute the correctness of order posting suit for ex parte hearing or show cause for his non-appearance.(ii) The subsequent events in first and second appeals cannot be taken indiscriminately into account. It may be permitted to be taken into account by appellate court by means of amendment of pleadings, in order to avoid multiplicity of proceedings but not where such amendment could cause prejudice to vest right of plaintiff and render him remedied.

Bibliography

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www.indiakanoon.org www.manupatra.com www.wikipedia.com www.yahoo.com www.google.com www.westlaw.ac.in Books civil procedure- Mulla Tandons The Code of Civil Procedure revised by JUSTICE RAJESH TANDON C.K. TAKWANIs The Code of Civil Procedure.(6th edition)