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

Vole: Volume

Art: Article

TABLE OF CONTENT.
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 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].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
8. CONCLUSION27
9. BIBLIOGRAPHY28

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, closedcircuit 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
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
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:
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.

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 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 Courthouse 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. 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:

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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 9.1
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 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

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

11

dismissed the suit for default, the defendant being absent, it was held that the order was under
this rule7. 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.

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.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 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.

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

8 Chandra v Amir (1927)49 All 592
9 Madhao Narayan v Ragho Niloo AIR 1970 Bom 132

12

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

(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 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 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.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 APPEARS ON DAY OF ADJOUNRED

HEARING AND ASSIGNS GOOD CAUSE FOR PRVISIOUS NON-APPEARANCE.
[SEC. 101]
10 Sangram Singh v Election Tribunal 1955(2)SCR 1
11 Sohan Singh v Hans Raj AIR 1960 Punj 34
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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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.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
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. 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
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

14

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

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 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 nonappearance 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
21 Jaswant Singh v Darshan Kaur AIR 1983 Pat 132
22 Dhapon v Vijay Singh (1980) Rev LR 52
23 Delhi Development Authority v Shanti Devi AIR 1982 Del 159
24 Sheik Mohamad v Mt Ruknina Kunwar AIR 1946 All 506

15

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. 25

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. 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
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.

25 K G Mani v Leutin AIR 1955 Mys 2

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

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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 wellestablished 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.

27 Kudalayya v Sidilingappa 1958(1) And WR 166

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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.

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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 28, though the High Court of Bombay has
held that since the decision of the Privy Council

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.
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 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.

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

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(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 1955,31 and under the Mysore
Agriculturists relief Act 1947. It has been held that it has no application to a decree passed under
31 Sunanda v Gundopant 1961 Bom 296

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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 32, nor to an application to set
aside a decree passed in a summary suit under O 37 r 4.

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

32 Mangilal v Shivram AIR,1956 Bom 755

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

21

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 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-debtors property
cannot be set aside under this rule.

39 Somayya v Subbamma(1903)26 Mad 599

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

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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
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 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.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

43 Haricharan v Manmatha (1914)41 Cal 1

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

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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. 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
48 Adireppa v Pragji AIR 1924 Bom 366

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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 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

25

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 exparte. The High Court, in our opinion, should be allowed to examine all aspects of the matter.

26

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

27

statements.

Respondent

No.

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)

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

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