ISSN 2455-4782

APPEARANCE AND NON-APPEARANCE OF THE PARTIES

Authored by: Abhavya Rabra*

* 3rd year BBA LLB student, Jagran Lakecity University, Bhopal

INTRODUCTION

Appearance and non-appearance is a major issue to settle a dispute between the parties. As, mere
appearance or non- appearance may determine the result of the suit. The provisions of the Code of
Civil Procedure, 1908 are based on general principle that, as far as possible, no proceeding in a
court of law should be conducted to the detriment of any party in their absence. It is the duty of
the concerned party to appear before the trial court at a due time as 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. 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.

CONNOTATION OF THE WORD APPEARANCE

The word “appearance” has a well-recognized meaning and means appearance in person or through
advocate for conducting a case. So, appearance may be by a party in person or by an advocate or
by a party in person along with his advocate.

“Appearance” by a pleader within the meaning of Order IX does not, as if appearance by a party
in person means mere presence of the court; it means “appearance by a pleader” duly instructed
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an able to answer all material questions relating to suit. Appearance of the 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.

Thus, it is not sufficient for them to take any course, short of appearance. It is not sufficient for the
defendant to send a letter to the court or for his advocate merely to file a Vakalatnama, while
remaining absent.

Dismissal of the suit for the lacking of process fee by the plaintiff: If the plaintiff is failed to deposit
process fees to the court within the stipulated time stipulated by the court, then the suit may dismiss
as per Rule- 2 of the said Order. As per the language of the Code the provision is: “Where on the
day so fixed it is found that the summons has not been served upon the defendant in consequence
of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable for such
service, or failure to present copies of the plaint as required by Rule 9 of Order VII, the Court may
make an order that the suit be dismissed:

Provided that no such order shall be made, if, notwithstanding such failure, the defendant attends
in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and
answer he attends in person or by agent when he is allowed to appear by agent”.

Consequences of non-appearance by the plaintiff: On the date of peremptory hearing, if the

plaintiff not appears but the defendant appears then the suit will dismiss under O- 9, R- 8.

(The rule said: “Where the 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”.)

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Remedies: If a suit is dismissed under Order- 9 or 3 then the plaintiff has two-fold options to revive
his dismissed suit. Those are as follows:

i) Filing a fresh suit before the competent court, if the suit is not bar by law and

ii) The Plaintiff may files a petition under O-9, R- 4.

(The Rule- 4 is: “Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may bring a fresh
suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there
was sufficient cause for,or for his non-appearance, as the case may be, the Court shall make an
order setting aside the dismissal and shall appoint a day for proceeding with the suit”.)

This petition under O-9, R- 4 is one type of Misc. case. The case should be filed within 30 days
from the date of cancellation of such suit as per Art. 162 of the Limitation Act. However, after the
expire of that 30 days the case may be filed by virtue of Sec. 5 of the Limitation Act. The phrase
“Sufficient cause” mentioned in sec. 5 of the mentioned law means the cause, which is beyond the
control of the alleged person. It may an act of God or a mere manmade disaster. Where there are
concurrent remedies are available the duty of the concern lawyer is to choice the best one for the
benefit of the party.

If the suit is, dismiss under O- 9, r- 8; then the plaintiff have two remedies:

i) 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

ii) He may file a fresh suit.

Order IX of the Code of Civil Procedure deals with the Non-appearance of the Parties and such
default may have the effect of the dismissal of the suit or ex-parte decision by the Courts. Now,
the law does not require the personal presence of the Parties unless especially required by the
Court. The appearance of the pleader is a deemed presence of the litigant. However, there are
instances wherein the cases are dismissed for the default caused due to the negligence of the
Counsel.

The disturbing feature of our present adversary legal system where the parties generally appearing
through Advocates, the obligation of the Parties is to select the advocate, brief him, pay the fees

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demanded by him and then trust the learned advocate to do the rest of the things. The party may,
on the other hand, be a litigant who engages an advocate with the belief that his case will be duly
represented. After engaging a lawyer, the party may remain supremely confident that the lawyer
will look after his interest. At the time of the hearing of the appeal, the personal appearance of the
party is hardly useful. Therefore, the party having done everything in his power to effectively
participate in the proceedings can, rest assured that he has neither to go to the Court to inquire as
to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of
the advocate that the latter appears in the matter when it is listed. It cannot be decided whether
such non-appearance is the cause of the negligence of the Advocate or the negligence of a litigant
himself. However, every time, it becomes a responsibility of the Court to allow such applications
for restoration or appeals only for the possibility of justice being denied to an innocent litigant.

The Hon'ble Apex Court has discussed this aspect in the case of The Secretary, Department of
Horticulture, Chandigarh and Anr. Vs. Raghu Raj1 and held that, "Even if there is default on the
part of advocate in not appearing at the time of hearing, Appellant shall not suffer injustice."

It was pleaded by one of the counsels that the appellant had engaged a counsel and were under the
impression that the lawyer will take care of the case and appear when the appeal will be called out
for hearing. It was observed that the counsel is duty bound to attend the case in Court or to make
an alternative arrangement. Non-appearance in Court without `sufficient cause' cannot be excused.
Such absence is not only unfair to the client of the advocate but also unfair and discourteous to the
Court and can never be countenanced. At the same time, however, when a party engages an
advocate who is expected to appear at the time of hearing but fails to so appear, normally, a party
should not suffer on account of default or nonappearance of the advocate.

It is true that no Court is obliged to adjourn a case because of the difficulty of a Counsel. In fact,
it is the solemn duty of every Court to proceed with judicial business fixed for the day yet in an
appropriate case where no fault lies at the door of litigant, Court should not be in a hurry to dismiss
the case in default or for non-prosecution on account of absence of his counsel. The Court must be
considerate while dealing with an application for recall of dismissal or ex-parte order if a justifiable

1
2009 (1) ALT 38 (SC)
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cause for non-appearance of counsel was made out, the simple reason being; ultimately, it would
be the litigant who will have to suffer the consequences of the Order.

Law always requires the test of reasonableness. Meaning thereby, the cause of non-appearance of
the Advocate must be justifiable. It is the professional obligation of an Advocate to appear on
behalf of his Client or make such alternate arrangements as necessary. But, if there is no sufficient
reason and the Advocate by choice, omits to appear for a particular matter or before a particular
bench, then is the innocent litigant to suffer injustice.

The Hon'ble Apex Court has discussed this aspect in the case of Rafiq and Anr. v. Munshilal and
Anr.2 it was submitted by one of the counsels that a practice had grown up in the Hon'ble High
Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular
bench. It was observed, If any counsel does not want to appear in a particular Court, that too for
justifiable reasons, professional decorum and etiquette require him to give up his engagement in
that Court so that the party can engage another counsel. But, retaining the brief of his client and at
the same time abstaining from appearing in that Court, that too, not on any particular day on
account of some personal inconvenience of the counsel but as a permanent feature, is
unprofessional .This practice can only be discouraged by rejecting such applications for restoration
or appeals, as the case may be. However, the end result of every case should be justice.

The Party who has shown faith in the judicial system must not be disappointed because of the
default of his duly engaged Advocate. The Advocates Act and other rules of the Bar Council
require an Advocate to argue the case of his Client in the best possible manner and keeping up
highest professional standards.

The Court observed, "What is the fault of the party who having done everything in his power and
expected of him would suffer because of the default of his advocate. If such appeals/ applications
are rejected, the only one who would suffer would not be the lawyer who did not appear but the
party whose interest he represented. The problem that agitates before us is whether it is proper that
the party should suffer for the inaction, deliberate omission, or misdemeanor of his agent. The

2
[1981] 3 SCR 509

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answer obviously is in the negative. However, we cannot be a party to an innocent party suffering
injustice merely because his chosen advocate defaulted. "Where neither party appears (RULE 3)

Where neither party appears, suit to be dismissed-where neither party appears when the suit is
called on for hearing, the court may make an order that the suit be dismissed. In DAMU VS.
VAKRYA3, in a suit, 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 Rule 8, so as to attract the applicability of Rule 9. But as between A and C, the order is one
under the present rule, so that Rule 4 applies and not Rule 9.Where the trial court, in its order
dismissing the suit for default, merely referred to the plaintiff’s absence and not to the defendant’s
absence, the order must be construed to be one under Order 9, Rule 3. The court cannot dismiss
the suit in total merely to penalize the plaintiff for his absence. Rules of procedure are to be so
construed as to advance and not defeat the remedy. Mere non-mentioning in the order of absence
of either party would not take it out of the purview of Rule-3.

CONCLUSION

This scenario creates a very critical position in the justice delivery system. Where, on one hand,
the Hon’ble Court is duty bound to dismiss the proceedings if sufficient reasons are not established
which has become the need of time owing to the large number of cases pending at all stages, on
the other hand the Court cannot deviate from the very own objective of the judicial system, i.e.
Justice for all. The Court by taking a strict or technical view of the procedures prescribed cannot
cause prejudice to the innocent party who has faith not only on the Advocate he has engaged but
the ultimate faith in Judiciary that the Court, in no circumstances would cause anything to affect
the rights of the Parties. This kind of situation necessarily calls for a new practice duly prescribed
by law so that neither the innocent Party suffers due to the default or negligence of an Advocate
but the Courts can adopt the procedures meant for doing substantial justice keeping in mind the

3
1920 ILR 44 Bom767, 56 IC 455

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Right to speedy trial in every case, be it Civil or Criminal so that the faith in the Indian Judicial
system remains alive.

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