Appearance and non appearance of parties:-

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

The appearance of parties to the suit

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

1. If the plaintiff does not appear, dismiss the suit.

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

Non-appearance of both parties to the suit

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

The plaintiff can also apply for setting aside the dismissal if he is able to
satisfy the court that there was sufficient behind his non-appearance. If the
court is satisfied with the cause of non-appearance then it may set aside the
order of dismissal and schedule a day for the hearing of the suit.
The appearance of the plaintiff
When only the plaintiff appears but the defendant does not appear, then
an ex-parte order can be passed against the defendant. But, the plaintiff has
to prove that the summon was served to the defendant. 

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

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

Appearance of defendant
The provisions laid down to deal with the appearance of only the defendant
has been laid down from rule 7-11 of Order IX. When the defendant
appears but there is non-appearance of the plaintiff, then there can be two
situations:

1. The defendant does not admit the claim of the plaintiff, either wholly
or any part of it.
2. The defendant admits the plaintiff claim.
If the defendant does not admit the claim of the plaintiff, then the court shall
order for dismissal of the suit. But, when the defendant admits completely or
any part of the claim made by the plaintiff then the court is empowered to
pass a decree against the defendant on the ground of such admission and for
rest of the claim, the suit will be dismissed.

Dismissal of the suit of the plaintiff without hearing him is a serious matter
and it should not be adopted unless the court gets satisfied that in the
interest of justice such dismissal is required, as cited by Beaumont, C.J. in
the case of Shamdasani v. Central Bank of India.
Do the same provision applies to the non-
appearance of the plaintiff due to death?
When the plaintiff does not appear because of death, the court has no power
to dismiss the suit. Even if such order is passed it will amount to a nullity as
held in the case of P.M.M. Pillayathiri Amma v. K. Lakshi Amma.

Application to set aside the dismissal

When the suit has been dismissed on the ground of non-appearance of the
plaintiff then he can make an application to set aside the order of dismissal.
If the court is satisfied with the reason of non-appearance as a sufficient
cause then the court can set aside the order dismissing the suit and fix a day
for the proceeding of the suit. 

Sufficient cause
For considering the sufficient cause of non-appearance of the plaintiff the
main point to be considered is whether the plaintiff really tried to appear on
the day which was fixed for hearing or not. When sufficient cause is shown
by the plaintiff for his non-appearance, then it is mandatory for the court to
reopen the suit. In absence of sufficient cause, it is upon the discretion of the
court to set aside the dismissal or not as held in the case of P.K.P.R.M.
Raman Chettyar v. K.A.P. Arunachalam Chettyar. Sufficient cause
depends upon the facts and circumstances of each and every case.

In the case of Chhotalal v. Ambala Hargovan, the Bombay High Court

observed that if the party arrives late and find its suit dismissed due to his
non-appearance then he is entitled to have his suit or application restored
with the payment of costs.

When summon is not served

Rule 2 to 5 of Order IX lays down the provision for the situation when the
summon is not served to the defendant. One of the fundamental law of
procedural law is that a party must be given a fair opportunity to represent
his case. And, for this, a notice of the legal proceedings initiated against him
is obligatory. Therefore, service summons to the defendant is mandatory and
it is a conditional precedent. 
When there is no service of summons or it does not give him sufficient time
for effective presentation of the case then a decree cannot be passed against
him as held in the case of Begum Para v. Luiza Matilda Fernandes.

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

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

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

Ex-parte Decree
When the defendant is absent on the day of the hearing as fixed in the
summon an ex-parte decree can be passed. The ex-parte order is passed
when the plaintiff appears before the court on the day of the hearing but the
defendant does not even after the summon has been duly served. The court
can hear the suit ex-parte and give ex-parte decree against the defendant.

An ex-parte decree is a valid one and it is not null and void but can be
merely voidable unless it is annulled on a legal and valid ground. An ex-
parte can be enforced like a bi-parte decree and it has all the forces as a
valid decree as held in the case of Panduranga Ramchandra v. Shantibai
Ramchandra.

Remedies against an ex-parte decree

When an ex-parte decree has been passed against a defendant, the following
remedies are available to him.
 1. He can apply to the court under rule 13 of Order IX for setting
aside the ex-parte decree passed by the court.
2. He can appeal against that decree under section 96(2) of the Code
or, prefer revision under section 115 of the code when no appeal
lies.
3. He can apply for a review under Order 47 Rule 1.
4. A suit on the ground of fraud can be filed.

Setting aside an ex-parte decree

For setting aside an ex-parte decree an application may be made by the
defendant. An application to set aside decree can be made to the court
passing that decree. There are certain rules to be followed for setting aside
an ex-parte decree and if the defendant satisfies the court with sufficient
reason, then only the ex-parte decree which has been passed can be set
aside.

The limitation period for making an application for setting aside an

ex-parte decree is of 30 days.

The grounds on which an ex-parte decree can be set aside are:

1. When the summons has not been duly served.

2. Due to any “sufficient cause”, he could not appear on the day of the
hearing.

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

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

upon the defendant