Appearance and Non-Appearance of Parties in CPC

All legal proceedings should, as a fundamental principle, take place in the presence of the involved parties to the extent feasible. The regulations pertaining to the appearance of and non-appearance of parties are outlined in Order IX of the Code of Civil Procedure.

What are the Appearance and Non-Appearance of Parties in CPC?

In the Code of Civil Procedure (CPC), “appearance” and “non-appearance” refer to the participation or absence of the parties involved in a legal case during court proceedings.

Appearance: When a party “appears,” it means they actively engage in the legal proceedings by being present in court or by being represented by their legal representative (pleader). This can include attending hearings, presenting arguments, submitting evidence, and responding to the court’s directions or questions.

Non-appearance: On the other hand, “non-appearance” signifies the absence of a party from the court proceedings. If a party is required to be present in court but fails to attend or be represented by their legal representative, it is considered a “non-appearance.” This can have consequences depending on the stage of the case and the rules set forth in the CPC.

The CPC outlines various rules and provisions regarding appearances and non-appearances of parties. It provides guidelines for what happens when a party is absent during hearings, including the potential for decisions or orders to be made in their absence, such as ex-parte decrees. It also provides provisions for parties to seek relief or remedies if they have valid reasons for not being able to appear in court.

The Appearance of Parties to the Suit

According to the provisions of Rule 1 within Order IX of the Code of Civil Procedure, the involved parties in the lawsuit must make their presence felt in court, either through personal appearance or by means of their legal representatives, on the designated date mentioned in the summons.

In the event that the plaintiff or defendant, upon being directed to attend the proceedings personally, fails to do so without furnishing a satisfactory reason for their non-appearance, Rule 12 of Order IX confers upon the court the following powers:

• In case of the plaintiff’s non-appearance, the suit will be dismissed.
• If the defendant does not make an appearance, an ex-parte order will be issued.

Non-Appearance of Both Parties to the Suit

In situations where both the plaintiff and the defendant do not appear before the court during the hearing of the suit, the court is granted the authority to dismiss the suit per Rule 3 of Order IX. It’s important to note that the dismissal of the suit under this provision does not prevent the initiation of a fresh suit based on the same cause of action, as outlined in Rule 4.

Furthermore, the plaintiff has the option to request the court to reconsider the dismissal if they can sufficiently demonstrate that valid reasons existed for their non-appearance. Should the court find the justification for the non-appearance acceptable, it has the discretion to overturn the dismissal order and establish a new hearing date for the suit.

The Appearance of the Plaintiff

In instances where only the plaintiff makes an appearance while the defendant does not, the court has the authority to issue an ex-parte order against the absent defendant. However, it is imperative for the plaintiff to substantiate that the summons was properly served to the defendant.

Only upon the verification of proper summons service can the court proceed to issue an ex-parte order against the defendant, which might result in a favourable decree for the plaintiff. This provision specifically applies to the initial hearing and not subsequent ones, as established in the legal precedent of Sangram Singh v. Election Tribunal.

Even when granting an ex-parte order, the court bears the responsibility of ensuring justice prevails, even in the defendant’s absence. In the case of Maya Devi v. Lalta Prasad, the Supreme Court ruled that it is the court’s duty to ascertain the validity of statements in the plaintiff’s submission and the appropriateness of the requested reliefs.

This provision for ex-parte orders cannot be applied if there are multiple defendants in the case and any one of them makes an appearance.

Appearance of Defendant

The regulations pertaining to instances where only the defendant appears are outlined in Rule 7-11 of Order IX. When the defendant is present but the plaintiff is not, two scenarios may arise:

• The defendant does not concede to the plaintiff’s claim, either in whole or in part.
• The defendant concedes to the plaintiff’s claim.

If the defendant does not acknowledge the plaintiff’s claim, the court will order the dismissal of the suit. However, when the defendant fully or partially accepts the plaintiff’s claim, the court is authorized to issue a decree against the defendant based on that admission. For the remaining aspects of the claim, the suit will be dismissed.

Dismissing the plaintiff’s suit without affording them a hearing is a significant matter and should only be employed if the court is convinced that such dismissal is necessary in the interest of justice, as established by Beaumont, C.J. in the case of Shamdasani v. Central Bank of India.

Does the same provision apply in the case of the plaintiff’s non-appearance due to their demise?

In situations where the plaintiff fails to appear due to their demise, the court lacks the authority to dismiss the suit. Even if such an order is issued, it would be considered void, as determined in the case of P.M.M. Pillayathiri Amma v. K. Lakshi Amma.

Application to Set Aside the Dismissal

After a suit has been dismissed due to the plaintiff’s non-appearance, there exists a provision for the plaintiff to submit an application aimed at overturning the dismissal order. Upon the court’s satisfaction with the presented justification for the non-appearance as a valid reason, the court holds the authority to annul the dismissal order and establish a new date for the continuation of the proceedings.

The key factor in assessing the adequacy of the plaintiff’s reason for non-appearance is whether the plaintiff made genuine efforts to attend the scheduled hearing. When the plaintiff demonstrates a legitimate reason to justify their non-appearance, it becomes obligatory for the court to reinstate the suit. In cases where an adequate reason is absent, the court has the discretion to either rescind the dismissal or uphold it, as ruled in the case of P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar. The determination of sufficient cause is contingent upon the specifics of each individual case.

In the instance of Chhotalal v. Ambala Hargovan, the Bombay High Court observed that if a party arrives after the stipulated time and discovers their suit has been dismissed due to their non-appearance, they are entitled to have their suit or application reinstated upon payment of associated costs.

When Summon is Not Served

Rules 2 to 5 of Order IX delineate the provisions for scenarios where the summons has not been served to the defendant. A fundamental principle of procedural law is that every party must be afforded a fair chance to present their case. Providing notice of legal proceedings against them is essential to achieve this. Therefore, serving a summons to the defendant is obligatory and serves as a condition precedent.

When a summons has not been served, or the defendant has not been given adequate time for the proper appearance of their case, a decree cannot be issued against them, as established in the case of Begum Para v. Luiza Matilda Fernandes.

Rule 2 of Order IX also stipulates that if the plaintiff fails to cover the costs for serving summons to the defendant, the suit may face dismissal. However, such dismissal cannot take place if the defendant personally appears on the day of the hearing or through legal representation. In the event of such a dismissal, the plaintiff retains the right to file a fresh suit. Additionally, if the court deems there is a valid reason behind the failure to pay costs, it has the discretion to overturn the dismissal order.

When the summons is returned unserved, and the plaintiff fails to apply for a fresh summons within 7 days of the return, as indicated by the defendant or any of the defendants, the court holds the authority to dismiss the suit against the defendant(s).

If it is not proven that the summons was not duly served to the defendant, the court can direct the issuance of a fresh summon for proper service. In situations where service of the summons is proven but the time allocated in the summon is insufficient for the defendant to respond on the appointed day, the court can postpone the hearing to a later date and provide notice to the defendant.

Ex-Parte Decree

In situations where the defendant is noticeably absent on the scheduled hearing day as outlined in the summons, an ex-parte decree can be rendered. This type of decree is issued when the plaintiff appears before the court on the designated day, but the defendant fails to appear despite proper summons being served. In such instances, the court is empowered to conduct the proceedings ex-parte and deliver a decree in favour of the plaintiff in the defendant’s non-appearance.

It’s important to understand that an ex-parte decree is legally valid and not inherently null and void. However, it can be subject to challenge or deemed voidable unless it is invalidated based on legitimate and legal grounds. An ex-parte decree holds enforceable weight, similar to a decree reached through mutual representation, and it carries the same legal force as a valid decree. This was established in the case of Panduranga Ramchandra v. Shantibai Ramchandra.

Conclusion

The concept of appearance and non-appearance parties is pivotal in the Code of Civil Procedure framework. Parties are required to actively participate by appearing in court proceedings or being represented by their legal representatives. This ensures a fair opportunity to present their case, respond to arguments, and engage in the legal process.

Non-appearance, when a party fails to attend proceedings, can lead to consequences such as ex-parte orders or decrees, where decisions are made in the absent party’s absence. However, the CPC also provides avenues for parties to seek relief if they have valid reasons for non-appearance, emphasizing the importance of fairness and due process.