What is Appearance and Non-Appearance of Parties?

Law is always for the vigilant, not for the dormant. He who is praying, the sincerity is always sought his part. The matter of appearance and non-appearance of parties is dealt with in Order 9 of the Code of Civil Procedure of 1908. The purpose of which is to prevent the effort of the civil justice system in a matter in which justice is not sincerely smuggled. The sincerity here is judged by the appearance and the appearance of parties and their fulfillment of the duty of paying costs for summons among other sorts of activities.

Appearance and Non-Appearance of Parties under Order 9 of the CPC of 1908

There are two matters that are the costume of the rulings of this order-

1. Dismissal of the Suit
2. Ex-parte decree

And setting aside such orders is subject to the proof of the fact that the absence was neither willful nor negligent.

With this theme, without further ado, let’s go into the detailed study.

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We may bifurcate the non-appearance into two parts-

1. Defendants’ non-appearance for being uninformed
2. Party’s non-appearance is willfully negligent.

First thing first, the general rule, that is, the parties have to be in attendance at the courthouse on the date fixed on the summons for the plaintiff/s, and the defendant/s are obliged to be present either in person or through the respective pleaders.

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This is the ruling of Rule 1 along with the ruling that unless the date of the hearing is adjourned to a later date, on the same date the pre-emptory hearing shall take place.

Now, the key factors of the first rule are the service of summon, unless it is performed in perfection, the attendance of the parties, and the hearing of the suit shall be frustrated. This is one point of judging the sincerity of the plaintiff. This brings us to Rule 2, where it is said that if the summons addressed to the defendant is not served by the default to the defendant, the suit shall be dismissed. The default would be either in the payment of the court fees or the payment of the postal charges if that is a pre-condition to the service of the summon.

But where the defendant despite the non-service of the summons is present on the fixed date before the court in person or through an agent (where it is permissible), the suit shall be saved from such dismissal.

Now, if there are more than one defendant in a suit and the summons is not served on some of them, the court shall not dismiss the suit against such the defendant. (Ramachand v, Chandrama AIR 182 Pat 429)

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Mentionably, in all cases under this order of dismissal is not a decree nor made appealable u/o 43, hence no appeal lies. But the suit may be revived or filed afresh under the relevant rules prescribed herein.

Cases may be such that the summons returned has been served in reference to the defendant or one or some of them, the plaintiff has to make an application to the court for a fresh service of summons within a period of one month from the date of such return. On his default on doing so, the suit shall be dismissed as against such defendant/s.

In such case of a dismissal, if the plaintiff is able to show that-

1. The plaintiff has failed to discover the residence of the defendant after his best endeavor,
2. The defendant is avoiding the service of process,
3. Other reasonable grounds justify the court’s order of extending the limitations period of the said “one month.”

This is the ruling of rule 5 and the plaintiff is always on such dismissal, entitled to file a suit afresh.

Now, regarding the service of summons, if it is revealed that the summon is not duly served, but there is son default on the part of the plaintiff, and he is present on the date fixed, the court shall direct a second [summon to be issued and served on the defendant. [Order9, Rule 6(b)]

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And when the summon is served but not in due time which comes a hardship upon the defendant to appear and answer the suit on the date fixed in the summons, the court shall postpone the hearing to a future date and arrange in notice of such postponement to the defendant. [Order 9, Rule 6(c)]

Where such postponement is to be occasioned by any default of the plaintiff, the cost incurred for such postponement shall be served by the plaintiff, in this case also the plaintiff is to be present on the date fixed in the first summon otherwise the suit shall be dismissed.

These are the rulings where the service of summons is in question in maintaining a suit-

The rules are 2, 5, 6, 6(b)(c)(z)

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Now, where the summons is duly served and the default is occasioned by the absence of the parties or either of them, in such a case, the followings are the rulings-