1

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

Vol: Volume

Art: Article

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T ABLE OF CONT ENT .

1. HISTORICAL BACKGROUND

(A).APPEARANCES……………………………………………………………………..4

2. ISSUE OF THE CASE………………………………………………………………………..6

3. 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 DEFANDENT………………9

(E). WHEN NIETHER PARTY APPEARANCES SUIT TO DISMISSED……………...9

(F). PROCEDURE WHEN ONLY PLAINTIFF APPEARS……………………………11

(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 SUIT……………16

(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]……………………………………………………………………………………….23

4. CONTENTION ON THE BEHLF OF THE APPELENT………………………………..23

5. CONTENTION ON THE BEHALF OF THE RESPONDENT………………………….24

6. DECISION OF THE COURT……………………………………………………………...24

7. PRINCIPAL LAIDDOWN………………………………………………………………….26

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8. CONCLUSION………………………………………………………………………………27

9. BIBLIOGRAPHY……………………………………………………………………………28

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1. HISTORICAL BACKGROUND

(A).Appearance

A coming into court by a party to a suit, either in person or through an attorney, whether as plaint

iff or defendant. The formal proceeding bywhich a defendant submits to the jurisdiction of the co

urt. The voluntary submission to a court's jurisdiction.

In a criminal prosecution, an appearance is the initial court proceeding in which a defendant is fir

st brought before a judge. The conduct of anappearance is governed by state and federal rules of

Criminal

Procedure. The rules vary from state to state, but they are generally consistent.During an appeara

nce, the judge advises the defendant of the charges and of the defendant's rights, considers bail or

other conditions ofrelease, and schedules a PreliminaryHearing.

If the crime charged is a misdemeanor, the defendant may sometimes, depending on the localrule

s of court, enter a plea of guilty or not guilty at the initial appearance; if the crime is a felony, the

defendant usually enters the plea at alater court proceeding. A criminal defendant may have an a

ttorney present and may confer with the attorney during the appearance.

In some situations, a defendant may not need to appear in court in person and may even make an

appearance by mail. For example, whenindividuals receive traffic tickets they may choose to sen

d in a check for the amount of the fine. Many state statutes permit appearances to be made by two-

way, closed-circuit television. For instance, North Carolina's rule on videoappearances reads:

A first appearance in a noncapital case may be conducted by an audio and video transmission bet

ween the judge and defendantin which the parties can see and hear each other. If the defendant h

as counsel, the defendant shall be allowed to communicatefully and confidentially with his attorn

ey during the proceeding.

Any party can appear either in person or through an attorney or a duly authorized representative;

the party need not be physically present. Inmost instances, an attorney makes the appearance. An

appearance can also be made by filing a notice of appearance with the clerk of thecourt and the

plaintiff, which states that the defendant will either submit to the authority of the court or challen

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ge its jurisdiction. In a lawsuitinvolving multiple defendants, an appearance by one is not an app

earance for the others. Valid Service of Process is not required before an appearance can be made.

Historically, appearances have been classified with a variety of names indicating their manner or

significance. A compulsory appearance iscompelled by process served on the party. A conditiona

l appearance is coupled with conditions as to its becoming or being taken as a generalappearance

(defined later in this article). A corporal appearance indicates that the person is physically presen

t in court. A de bene esse (Latin,"of well being," sufficient for the present) appearance is provisio

nal and will remain good only upon a future contingency. A gratis (Latin, "free"or "freely") appe

arance is made by a party to the action before the service of any process or legal notice to appear.

An optional appearance isentered by a person who is intervening in the action to protect his or h

er own interests, though not joined as a party. A subsequentappearance is made by a defendant af

ter an appearance has already been entered for him or her by the plaintiff. Finally, a voluntaryapp

earance is entered by a party's own will or consent, without service of process, although process

might be outstanding.

The two most common categories of appearances are general and special.

General appearance

By making a general appearance, the defendant agrees that the court has the power to bind her or

him by its actions and waives the right toraise any jurisdictional defects (e.g., by claiming that th

e service of process was improper). The defendant also waives the objection that thecase is broug

ht in the wrong venue. The defendant does not, however, waive any substantive rights or defense

s, such as the claim that thecourt lacks jurisdiction over the subject matter of the case or authority

to hear the particular type of case (e.g., a Bankruptcy court will no their personal injury cases).

Special appearances

A special appearance is one made for a limited purpose. It can be made, for example, to challeng

e the sufficiency of the service of process.But most often, a special appearance is made to challen

ge the court's personal jurisdiction over the defendant. It prevents a default judgmentfrom being r

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endered against the defendant for failing to file a Pleading. (A default judgment is an automatic l

oss for failing to answer thecomplaint properly.)

When a defendant makes a special appearance, no other issues may be raised without that appear

ance's becoming a general appearance. Ifa party takes any action dealing with the merits of the ca

se, the party is deemed to have made a general appearance and submitted to thejurisdiction of the

court.

If a challenge is successful and the court agrees that it does not have personal jurisdiction over th

e defendant, it will dismiss the action. If thecourt finds against the defendant on that issue, that d

ecision can later be appealed.

2. ISSUE OF THE CASE

Here 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-APPEARANCES

Where 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:

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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-APPEARANCE

1. 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 costs

3. 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.

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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. Let’s us discuss all these three one by

one.

(B).APPEARANCES OF PARTIES

Rule 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:

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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. And

2. 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 DEFANDENT

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 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 plaintiff’s claim.

(E).WHERE NITHER PARTY APPERS, 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.

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Where neither party appears- A sues B and C. A. and C do 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 9.1

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.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. 3This 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. 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. 5

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. 6

Where plaintiff’s pleader appeared before the court and made a statement to the effect that his

client’s 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

rule7. When, on the defendant’s 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.

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

1 Damu v Vakrya (1920)44 Bom 767 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 6 Hingu Singh v Jhuri Singh (1918)40 All 590

7 Jaharlal v Jyoti Prasad(1938) 42 Cal WN 806

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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.8 If a tribunal passes an order on the

merits in the absence of both parties, that is opposed to natural justice. 9

(F).PROCEDURE WHEN ONLY PLAINTIFF APPERS

(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 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.

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’.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. 11

8 Chandra v Amir (1927)49 All 592 9 Madhao Narayan v Ragho Niloo AIR 1970 Bom 132 10 Sangram Singh v Election Tribunal 1955(2)SCR 1

11 Sohan Singh v Hans Raj AIR 1960 Punj 34

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(G).EX-PARTE DECREE

If 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 plaintiff’s suit. Every Judge in dealing with an ex parte case should take good care to see that

the plaintiff’s case is at least prima facie proved. The mere absence of the defendant does not of

itself justify the presumption that the plaintiff’s 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 plaintiff12, 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.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.14As to the effect of an order declaring the defendant ex parte in subsequent

proceedings, see the undermentioned cases. 15

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 APPERS 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

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

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under this rule.16 The contrary view takes in the decisions noted below is no longer good law.17

Nor does it apply when the entire hearing has been completed and the case is merely adjourned for

judgment.18 The Election Commissioner has no jurisdiction to set aside under this rule, an order

made by him. 19

Counsel’s 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. 20

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.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. 22

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 20 Delhi Develpoment Authority v Shanti Devi AIR 1982 Del 159 21 Jaswant Singh v Darshan Kaur AIR 1983 Pat 132

22 Dhapon v Vijay Singh (1980) Rev LR 52

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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. 23

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 APPERS. [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 plaintiff’s non-

appearance on a date fixed, not for the hearing of the suit but for some interlocutory matter. 24

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 plaintiff’s application was dismissed on the ground that by

remaining ex parte, the defendant cannot be held to have admitted the claim. 25

23 Delhi Development Authority v Shanti Devi AIR 1982 Del 159 24 Sheik Mohamad v Mt Ruknina Kunwar AIR 1946 All 506

25 K G Mani v Leutin AIR 1955 Mys 2

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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 plaintiff’s 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. 26

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 dismissa l,

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 dismissa l

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

26 Kesri Chand v National Jute Mills Co (1913)40 Cal 119

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this rule for default of plaintiff’s 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 served27 or if the date of hearing had

not been fixed or if the same had not been notified to the plaintiff.

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.

27 Kudalayya v Sidil ingappa 1958(1) And WR 166

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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 condonation 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 whic h

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—

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(1) Apply for a review of the order under O 47 r 128, though the High Court of Bombay has

held that since the decision of the Privy Council 29a 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.

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 rule30. 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.

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 plaintiff’s 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.

28 Raj Narain v Lakshmi Narayan (1925)49 Bom 839 29 Chajju Ram v Neki(1922)49 IA 144

30 Raj Narain v Ananga (1899)26 Cal 598

19

(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 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.

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 1955,31 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 194732, 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

20

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.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.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. 35

Who can apply under this rule-A mortgagor who has sold the hypothec is entitled to apply under

this rule36 and so also the purchaser in a court auction of the equity of redemption37. Where an

application by the vendor under O 9 r 13 was dismissed, the purchaser is entitled to file an appeal

against the order38. 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.

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 hearing39. 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

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 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

39 Somayya v Subbamma(1903)26 Mad 599

21

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. 40

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.41

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.42

Ex parte order -An ex parte order directing the attachment of the judgment-debtor’s 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,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

40 Kshirode v Nabin Chandra (1915)19 CWN 1231 41 Arunachalam v Veerappa(1932)55 Mad 17 42 Rampati Devi v Chandrika Devi AIR 1979 Pat 314,316

43 Haricharan v Manmatha (1914)41 Cal 1

22

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. 44

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.45

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 B’s 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.46

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.47

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

44 Babu Lal v Raghunandan (1930)52 All 839 45 Suryaprakasa v Sreeramula(1930)59 Mad LJ 918 46 Zendoo Nal v Kishorilal ILR(1899)23 Bom 716

47 Chandi Charan v Sarat Chandra AIR 1955 Assam 231

23

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. 48

(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 APPELENT

Plaintiff 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

48 Adireppa v Pragji AIR 1924 Bom 366

24

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 RESPONDENT

The 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 COURT

Bhanu Kumar Jain RESPONDENT: Archana Kumar & 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 Honab’le 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

25

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 plaint iff

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

26

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 costs

7. PRINCIPAL LAIDDOWN

Supreme Court of India Bhanu Kumar Jain v. Archana Kumar & 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:

Bhanu Kumar Jain RESPONDENT: Archana Kumar & 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 limita t ion

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 defendant

Shri P.P. Mukherjee, (original plaintiff) and daughter Smt. Archana Kumar, (original defendant

No. 2). The family is said to be governed by Dayabhag School of Hindu Law. The original plaint iff

filed a suit for partition in the year 1976. The original defendants filed their written statements .

Respondent No. 2 herein, Surender Nath Kumar who is husband of Smt.Archana Kumar,

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)

27

8. CONCLUSION

This 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.

28

BIBLIOGRAPHY

WEBSITE

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WWW.MANUPATRA.COM

WWW.WEKIPEDIA.COM

www.yahoo.com

www.google.com

www.westlaw.ac.in

BOOKS

CIVIL PROCEDURE- MULLA

Tandon’s The Code of Civil Procedure revised by JUSTICE RAJESH

TANDON

C.K. TAKWANI’s The Code of Civil Procedure.(6th edition)