UNIT 2 NOTES

Jurisdiction and Place of Suing (Sec. 15 to 20)

Meaning of jurisdiction

In general meaning, Jurisdiction is the power of the Court to take the cognizance of an offence and to
determine the cause of action.

According to Black’s Law dictionary Jurisdiction means “A court’s power to decide on a case or issue a
decree.”

The jurisdiction was defined in the case of Hirday Nath vs Ram Chandra. The High Court of Calcutta stated
that jurisdiction may be defined as judicial power of Court to hear and determine the cause and adjudicate
upon it.

Jurisdiction is decided mainly on the basis of:-

 Pecuniary value
 Local limits of Court
 The subject matter ofCourt
So the Court before taking the knowledge of offence, the following points needs to be taken into
consideration:-

 The pecuniary value of the suit

 The nature of the case
 The territorial limits of the court
It is not only sufficient that forum must have an authority to deal with the matter or that the court has a
pecuniary jurisdiction or the court has a local jurisdiction but the court must be competent enough to grant
the relief in such matter.

Jurisdiction of Civil Court (Section 9)

The word civil is not defined in section 9 itself. According to Dictionary “civil rights is private rights and
remedies that are different from the criminal and political”. The word “nature” indicates the identity or
essential character of a person or thing. So, we can draw the definition of suits of civil nature means that the
suit in a dispute relating to private rights and the suit must not be related to a political or criminal matter.

The civil court shall have jurisdiction to try all the suits except the suit which is impliedly or expressly
barred(closed).

A suit which is related to the right to property or suit in which office is contested is of civil nature suit,
notwithstanding that such right may depend entirely on the decisions of questions as to religious ceremonies
or rites. It is immaterial whether the fees to the office are attached or not, or whether such an office is
attached to a particular place or not.

The suit which is expressly barred means the suit which is barred by any statute or any other law for the time
being in force.

The legislature has an option to bar the jurisdiction of the civil court with respect to a particular class of suit
keeping itself with the ambit of the power conferred on the Constitution of India.

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 The establishment of the tribunal has taken away the jurisdiction of the civil court with regard to the subject
matter that is allotted to the tribunal on the first instance, however, if any questions related to law raised, or
any provision of the act so created the tribunal can be looked into by the civil court.

The civil court has no jurisdiction over the matter in which court under the Code of Criminal Procedure,
Revenue Court has exclusive jurisdiction, or matter is dealt with special tribunal dealt under special statutes.
example Motor Accidents Claims Tribunal, Cooperative Tribunal.

A suit is impliedly barred when it is barred by either the general principle of law or general conduct of law.
The basic purpose of barred impliedly is that the court should not deal with the matter which causes
injurious to the public or which is against the public will.

In the case of P.M.A Metropolitan vs Moran Mar Marthoma [2],

The Supreme Court observed that:-

 The phrases used in section 9 has a positive and negative meaning

 The earlier part has a wider sense as it covers all the matter of civil nature; on the other hand, the
latter part has a wider sense as it excludes the matter which is impliedly or expressly barred.
 The two explanations mentioned in Section 9 expresses the legislative intentions.
 It cast an obligation on the court to exercise the jurisdiction for the enforcement of private rights
 No court is at discretion to refuse the matter which falls under this section
 It is mandatory to take the cognizance of matter because the word “shall” is used which means that it
is a mandatory section.
In the case of Shankar Narayanan Potti vs K. Sreedevi

The Supreme Court held that the ‘Civil Court has inherent jurisdiction in all types of civil matter as per
Section 9 of CPC unless the suit is expressly or impliedly barred.”

In the case of Bar Council of West Bengal vs A. Austin. The High Court of Calcutta states that when the
statute which bars the jurisdiction does not provide an alternative remedy then the jurisdiction of the civil
court cannot be excluded.

In the case of Balawwa vs Hasanabi

If a part of the suit is excluded from the jurisdiction of civil court then it is not necessary that the entire suit
cannot be instituted in the civil court.

There are three kinds of jurisdiction to determine the place of suing:-

 Territorial jurisdictions
 Pecuniary jurisdictions
 Subject matter jurisdiction
Whenever the suit is brought before the court the first question is to determine whether the court has
jurisdiction to deal with the matter. If the court has all these (territorial, pecuniary, or subject matter
jurisdiction then only the court has the power to deal with the case. In the case, if the court does not have
any of the above-mentioned factors then it will be considered as lack of jurisdiction or the irregular exercise
of jurisdiction. when the court who does not have jurisdiction decide the case and give a decision then such
decision will be considered as void or voidable depending upon the different circumstances.

Pecuniary jurisdiction ( Section 15)

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Every suit shall be instituted in the court of lowest grade competent to try it. The word competent denotes
that the court must have the power to hear the case with regards to pecuniary jurisdiction. The court of
lowest grade who has a jurisdiction with regards to pecuniary value shall deal with the case at first instance.

The issue arises:- who will determine the value of the suit?

Ordinarily, the plaintiff makes the valuation of the suit for the purpose of determining the pecuniary
jurisdiction of the court unless it prima facie appears to the court that the valuation was not done correctly.
When the court finds that the valuation was either done overvalued or undervalued, then the valuation will
be done by the Court and the court will direct the party to approach the appropriate forum.

The jurisdiction of the court is decided by the plaintiff valuation but not the amount for which decree is
passed.

Lets us understand from an example, if the court has a pecuniary jurisdiction of Rs 15000 and the suit for
recovery of accounts is filed on the valuation of suit done by the plaintiff. The valuation was of Rs 15000.
Later the courts find that Rs 20000 is due, in this case, the court is not deprived of its jurisdiction to pass a
decree for that amount.

It is the valuation done by the plaintiff to determine the jurisdiction of the court. But this does not mean that
the plaintiff is set free to file for any arbitrary value and to choose the court in which he wants to file a suit.

When the court finds that valuation is done improperly for the purpose of avoiding the jurisdiction of the
appropriate court, the court may require the plaintiff to prove that valuation was done in a proper manner.

Territorial Jurisdiction (Section 16 to 20)

It is divided into:-

 Suits related to immovable property ( Section 16 to 18)

 Suits related to Movable property ( Section 19)
 Other suits( Section 20)
Section 16 states that the suit related to immovable property shall be instituted where such immovable
property is situated.

It talks about the institution of the suit with respect to:-

 Recovery of immovable property with or without profit or rent

 Partition of immovable property
 Foreclosure, sale or redemption in case of charge or mortgage upon immovable property
 Compensation for a wrong caused to immovable property
 Determination of any interest or rights related to immovable property
 Recovery of movable property under attachment or distraint, for all the above-mentioned purpose.
When the suit is filed for the relief or compensation for wrong caused to immovable property held by a
defendant or any other person on the behalf of a defendant where the relief can be obtained through his
personal attendance then suits may be instituted in a court within whose local jurisdiction:-

 theproperty is situated, or
 thedefendant voluntarily and actually resides or carries on business or personally for gains.
Section 17:-Cases in which the immovable property is situated within the local limits of the jurisdiction of
different courts.

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When the suit is filed for obtaining the compensation or relief for the wrong caused to immovable property
situated within the jurisdiction of two or more courts, the suit may be filed in any court within whose local
jurisdiction a portion of the property is situated. But in respect for the value of subject matter of the suit, the
entire claim is knowledge by such court.

Section 18– A place of an institution when the jurisdiction of courts is uncertain

When there is uncertainty with regards to the local limits of the jurisdiction of courts, and any of the courts
has satisfied that there is a ground for uncertainty, record the statement and may proceed with the case to
entertain and dispose of the case. The decree passed by such court will have the same effect as if the
property was situated within the local limits of its jurisdiction.

In a case where the court taking the knowledge of case does not record the statement and objection is
brought before Appellate or Revisional Court, the Appellate or Revisional court shall not allow the
objections unless it is satisfied that at the time of institution of suit there was no reasonable ground for
uncertainty as regards to jurisdiction of Court and there has been a failure of justice.

Section 19– Suits with regard to movable property when Applicable where the suit is for the wrong caused
to the person or property.

Conditions

If the wrong was done within the local limits of the jurisdiction of one courtand the defendant voluntarily
resides or carries on his business or works for personal gain within the local limits of the jurisdiction of
another court then the plaintiff has an option to file at either court.

Lets us understand through an example.

A, residing in Delhi, beats B in Bangalore. B may institute the suit either in Delhi or Bangalore.

A residing in Bangalore, publishes a defamatory statement of B in Delhi. B may sue A in Bangalore or

Delhi.

Other suits to be instituted where defendants reside or cause of action arises (Section 20) when Applicable
when there is a breach of contract or commercial transactions.

Conditions

If the breach of contract was done or cause of action arises within the local limits of the jurisdiction of one
court and defendant voluntarily resides, carries on his business or works for personal gains within the local
limits of the jurisdiction of another court the plaintiff has an option to file at either court

Example

C is a tradesman in Bangalore, D carries on business in Hyderabad. D, by his agent in Bangalore, buys

goods from C and requests C to deliver them to Amarchand Company. C delivers the goods in Bangalore
accordingly. C may sue for the price of goods either in Bangalore where the cause of action arises or in
Hyderabad where D carries on his business.

Objections to jurisdiction( Section 21)

If objection related to the place of suing:-

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  pecuniary limits
 competence of theexecuting court with regards to local limits of its jurisdiction
is not brought in the Court at the first instance, before settlement or in a case where the issues are settled,
then no objection will be allowed by the Revisional or Appellate Court unless there is a failure of justice.

Non- Applicability

 Territorial jurisdiction
 Pecuniary jurisdiction
In the case of Karan Singh vs Chaman Paswan

When the court commits an error in entertaining the suit with regard to pecuniary or territorial jurisdiction
then the decision given by such court will not be void but will be considered as the illegal exercise of
jurisdiction.

Bars on a suit to set aside a decree on objection as to the place of suing (Section 21A)

No suit shall be brought up challenging the validity of decree passed in a former suit between the same
parties or between the parties litigating under the same title on any ground based on an objection as to a
place of suing.

Institution of Suit under CPC

The institution of suit under CPC is a foundational element of the Indian legal system, marking the formal commencement
of a civil legal action. This process allows individuals and entities to seek legal redress for disputes in a structured and
orderly manner.

At the heart of the institution of suit is the filing of a “plaint” by the plaintiff, outlining the facts of the case, the legal
grounds for their claim and the relief they are seeking. Jurisdiction and court fees are crucial considerations, ensuring that
the right court handles the case and that the necessary costs are covered.

Once the suit is instituted, the legal proceedings take their course, leading to the court’s judgment or decree. The institution
of suit is a fundamental step in the pursuit of justice and resolution of civil conflicts in India’s legal landscape.

What is a Suit?

The term ‘suit’ is not specifically defined in the CPC, 1908. According to Black’s Law Dictionary, a ‘suit’ is a general term
that covers any legal action where one person or a group of people take legal action against another in a court to seek a
remedy provided by the law for addressing a harm or asserting a right, whether it’s a matter of law or equity.

A ‘suit’ is a formal legal process initiated by filing a complaint to enforce civil or substantive rights against either the
government or an individual. When a ‘suit’ is concluded, it leads to the issuance of a legal judgment or decree. Without a
‘suit,’ there can be no such judgment.

In the significant case of Hansraj Gupta & Others v. Dehra Dun-Mussoorie Electric Tramway Co. Ltd. in 1932, the
Privy Council ruled that a civil legal proceeding begins with the submission of a complaint.

Meaning of Institution of Suit

Institution of suit refers to the formal commencement of a legal action or civil suit by a plaintiff against a defendant in a
court of law. The institution of suit initiates the legal process by which the plaintiff seeks a legal remedy, such as a
judgment, order or decree, for a particular issue or dispute.

The key components of the institution of suit under CPC typically include:

 Filing a Plaint: The plaintiff starts the process by filing a written statement known as a “plaint” in the appropriate
court. The plaint outlines the facts of the case, the legal basis for the claim and the relief or remedy sought.
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  Court Selection: The plaintiff must choose the correct court with jurisdiction to hear the case, meaning that the
court has the legal authority to handle the specific type of dispute and is located within the appropriate geographic
area.
 Payment of Court Fees: The plaintiff is generally required to pay the prescribed court fees, which may vary
depending on the nature and value of the suit, as per the Court Fees Act, 1870.
 Service of Summons: After the institution of the suit under CPC the court issues a summons to notify the
defendant of the legal action and require their appearance in court to respond to the plaintiff’s claims.
 Proceedings: Once the defendant receives the summons and responds, the legal proceedings unfold, including the
presentation of evidence, legal arguments and ultimately the court’s judgment or decree.
In summary, the institution of suit under CPC is the formal initiation of a civil legal action, marking the beginning of the
legal process to address and resolve a specific dispute between parties through a court of law.

How Institution of Suit under CPC is Done?

Section 26 and Order IV provide the guidelines for initiating legal proceedings. Section 26 specifies that every civil
suit must begin by presenting a written statement (called a plaint) in duplicate or as per the rules set out in the Code of Civil
Procedure, to the court or an authorised officer. The facts presented in the plaint must be supported by an affidavit. To
understand this better, we should also consider Order IV, VI and VII of the first schedule.

Rule 1 of Order IV should be considered alongside Section 26 to expand on the legal requirements outlined in the section.
This rule states that a civil suit is considered officially started only when a duplicate of the plaint is presented either directly
to the court or to a designated officer. Furthermore, the said plaint must adhere to the regulations outlined in Order VI and
VII.

Section 80 of the CPC mandates that, in cases where the defendant is the government or a public officer, a legal notice must
be delivered before filing a civil suit. However, it’s important to note that not all civil suits require such a notice. In some
situations, lawyers send legal notices before initiating civil cases to inform the defendant that they are making a final effort
to resolve the dispute. This is typically done as a precautionary measure.

The procedural steps for institution of a suit under CPC include:

 Drafting a plaint (a formal written statement outlining the case)

 Selecting the appropriate court for filing the civil suit (the place of suing)
 Presenting the plaint to the court or a designated officer.
Note after that explain plaint , ground of plaint and place of suing.

Pleading under CPC(order6 rule1)

Pleadings form the foundation for any case in the court of law.

It is a statement in writing filed by the counsel of plaintiff stating his contentions on the case, on the basis of which the
defendant shall file the written statement defending himself and explaining why the plaintiff’s contentions should not
prevail. Sometimes the plaintiff, having filed his plaint, may, with the leave of the court, file a statement or the court may
require him to file a written statement. In such cases, the written statement forms part of the plaintiff’s pleadings. Similarly,
there are cases in which the defendant having filed his written statement may, with the leave of the court, file an additional
written statement or the Court may require him to do so. In such cases the additional written statement also forms part of the
defendant’s pleadings.[1] This is the first stage of a suit. Code of Civil Procedure (CPC) in order 6, Rule 1 defines pleadings
as a written statement or a plaint.

The plaintiff’s written statement and the defendant’s additional written statement are termed supplemental pleadings.

Objective of pleading

The whole objective behind pleading is to narrow down on the issues and provide a clear picture of the case thereby
enhancing and expediting the court proceedings. The pleadings help both the parties know their point of dispute and where
both parties differ so as to bring forth the relevant arguments and evidence in the court of law.

The Supreme Court on 25th March, 1972 while disposing a case praying for certain amendments in an election petition,
observed that rules of pleadings are intended towards giving justice and to act as aids for fair trial.

Rules of Pleadings
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The four words which can summarise the rule of pleading is ‘Plead facts not law’. The counsel of both the parties should
only project the facts in their respective case rather than suggesting on the laws applicable in the particular case.

To gain a crystal clear understanding of the same, the rules can be studied in two parts that is:

1) Basic or Fundamental Rules

2) Particulars or other rules

Basic or Fundamental Rules

Basic or Fundamental Rules are discussed in the sub-rule (1) of Rule 2 of Order VI of the Code of Civil Procedure, 1908.
Summarising the provision, the basic rules of pleadings are the following:

Facts should be pleaded upon and not the law

This was first held in the case Kedar Lal v. Hari Lal where it was held that the parties are under the duty to state the facts on
which they are claiming their compensation. The court shall apply the law as per the stated facts to render the judgement.
One should not assert or apply any laws for claiming right on the stated facts.

Material facts should be pleaded

The second basic rule is to present facts which are material only. Immaterial facts shall not be considered. The question
arose in the court of law that what is the actual scope of ‘material facts’. It was decided by the judge in the case Union of
India v. Sita Ram that material facts will be inclusive of all those facts upon which the plaintiff’s counsel will claim
damages or rights as the case may be or the defendant will put forth his defence. In nutshell, facts which will form the basis
for claiming a right or compensation by the plaintiff or prove the defendant’s defence in the written statement will fall under
the ambit of being ‘material’.

Evidence should not be included while pleading

It says that pleadings should contain a statement of material facts on which the party relies but not the evidence by which
those facts are to be proved.[2]

There are two types of facts :

 Facts probanda : the facts which need to be proved, i.e material facts
 Facts probantia: facts by which a case is to be proved, i.e evidence
Only facts probanda should form the part of pleadings and not facts probantia. The material facts on which the plaintiff
relies for his claim or the defendant relies for his defence are called facta probanda, and they must be stated in the plaint or
in the written statement, as the case may be.[3]

Facts in concise manner should be presented

This is the last and final basic rule of pleadings. Compressed and crisp presentation must be adhered while presenting the
pleadings. At the same time it must be kept in mind that in order to maintain brevity of facts one should not miss out on
important facts in the pleadings. Pleadings can be saved from superfluity if one takes care in syntax.

Particulars or other rules

1. Particulars with dates and items should be stated wherever fraud, misrepresentation, breach of trust, undue
influence or wilful default are pleaded in the pleadings.
2. Generally departure from pleading is not permissible, and except by way of amendment, no party can raise any
ground of claim or contain any allegation of fact inconsistent with his previous pleadings.

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 3. If the opposite party denies a contract, it will be held as denial of the facts of the contract and not its validity,
enforceability and legality.
4. Wherever malice, fraudulent intention, knowledge or other condition of the mind of a person is material, it may
be alleged in the pleading only as a fact without setting out the circumstances from which it is to be inferred.
5. Unless the facts are material, there is no need for the facts to be stated in verbatim.
6. Every pleading should be signed by the party or one of the parties or by his pleader.
7. A party to the suit shall provide with his and the opposite party’s address.
8. Amendment of pleadings shall be allowed by the court

Amendment of Pleadings

Rules 17 and 18 of Order VI of Code of Civil Procedure, 1908 deal with amendment of pleading. These provisions aim
towards achieving justice in the society. Rule 17 of the Code of Civil Procedure, 1908 provides either parties may be
ordered to amend or alter his pleading at any stage of the proceeding in such manner which shall be fair and just and allow
amendment when necessary so as to determine the exact controversial question between the parties.

On the other hand Rule 18 deals with the issue of failure of amending the pleading. It deals with the law that if court orders
a party to make necessary and if he fails to do the same within the given time limit given by the order or if no time is limited
then within 14 days from the date of the order, he shall not be permitted to amend after the expiration of such limited time
as aforesaid or of such 14 days, as the case may be, unless the time is extended by the Court.

Plaint and written statement:(plaint is in the notes of unit1)

Written statement:

Meaning:
It is a term meaning signifying a reply to the plaint led by the plaintiff. In other words, it is the pleading of the defendant
wherein he deals with the material fact alleged by the plaintiff in his plaint and also states any new fact in his favour or
takes legal objections against the claim of the plaintiff.

Who may be written statement:

A written statement may be filed by the defendant or by his duly authorized agent. In the case of more than one defendants,
the common written statement led by them must be signed by all of them. But it is sufficient if it is veried by one of them
who is aware of the facts of the case and is in a position to le an affidavit. But a written statement led by one defendant does
not bind other defendants.

Time limit for ling written statement:

A written statement should be led within thirty days from the service of the summons on him. The said period, however, can
be extended up to ninety days,(Rule -1). A defendant should present a written statement of his defence in the said period.

Defences in written statement:

In written statement defendant can specically deny the allegations made in the plaint by the plaintiff against him. Besides
this, he also can claim to set-of any sums of money payable by the plaintiff to him as a counter defence (Order 8 Rule 6).
Further, if the defendant has any claim against the plaintiff relating to any matter in the issue raised in the plaint, then he can
separately le a counter-claim along with his written statement. It is provided in Order 8 Rule 6A to 6G of the code.

Particulars: Rules 1-5 and 7-10

Drafting a written statement is an art so it should be drafted carefully and artistically. Before proceeding to draft a written
statement it is absolutely necessary for the defendant to examine the plaint carefully.

Special rules of defence:

Rules 2 to 5 and 7 to 10 deal with special points regarding the ling of a written statement:

1. New facts, such as the suit is not maintainable, or that the transaction is either void or voidable in law, and all such
grounds of defence as, if not raised, would take the plainti by surprise, or would raise issues of fact not arising out
of the plaint, such as fraud, limitation, release, payment, performance or facts showing illegality, etc. must be
raised. (Order 8 Rule 2)

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 2. The denial must be specie. It is not succinct for a defendant in his written statement to deny generally the grounds
alleged by the plainti, but he must deal specially with each allegation of fact which he does not admit, except
damages.
3. The denial should not be vague or evasive. Where a defendant wants to deny any allegation of fact in the plaint, he
must do so clearly, specially and explicitly and not evasively or generally.
4. Where every allegation of fact in the plaint, if not denied specically or by necessary implication, or stated to be not
admitted except as against a person under disability. The court may, however, require proof of any such fact
otherwise than by such admission.
5. Where the defendant relies upon several distinct grounds of defence or set-o or counterclaim founded upon separate
and distinct facts, they should be stated separately and distinctly.
6. Any new ground of defense which has arisen after the institution of the suit is a presentation of a written statement
claiming a set-o or counterclaim may be raised by the defendant or plainti in his written statement as the case may
be.
7. If the defendant fails to present his written statement within the time permitted or relaxed by the court, the court
will pronounce the judgment against him or pass such order in relation to the suit as it thinks t and a decree will be
drawn up according to the said judgment.
8. No pleading after the written statement of the defendant other than by way of defense to set-o or counterclaim can
be led.

Appearance and non appearance of party:

The appearance of parties to the suit

As stated under Rule 1 of Order IX of the Code of Civil Procedure, the parties to the suit are required to attend the court
either in person or by their pleaders on the day which has been fixed in the summons. If the plaintiff or a defendant, when
ordered to appear in person, do not appear before the court and neither show the sufficient cause for his non-appearance, the
court is empowered under Rule 12 of Order IX as follows.

 If the plaintiff does not appear, dismiss the suit.

 If the defendant does not appear, pass an ex-parte order.

Non-appearance of both parties to the suit

When neither the plaintiff nor the defendant appears before the court when the suit is called for hearing, then the court is
empowered to dismiss the suit under Rule 3 of Order IX. The dismissal of the suit under this rule does not put a bar on
filing a fresh suit on the same cause of action as per Rule 4.

The plaintiff can also apply for setting aside the dismissal if he is able to satisfy the court that there was sufficient behind
his non-appearance. If the court is satisfied with the cause of non-appearance then it may set aside the order of dismissal and
schedule a day for the hearing of the suit.

The appearance of the plaintiff

When only the plaintiff appears but the defendant does not appear, then an ex-parte order can be passed against the
defendant. But, the plaintiff has to prove that the summon was served to the defendant.

If service of the summons is proved then only the court can proceed for an ex-parte against the defendant and the court may
pass a decree in favour of the plaintiff. This provision applies only for the first hearing and not for the subsequent hearings
of the matter and the same has been held in the case of Sangram Singh v. Election Tribunal.

Even while passing an ex-parte order it is the duty of the court to secure the end of justice even in the absence of the
defendant. In the case of Maya Devi v. Lalta Prasad, it has been held by the Supreme Court that -It is the duty of the court
to ensure that statements in the plaint stand proven and the prayers asked before the court are worthy of being granted. This
provision of passing ex parte order cannot be passed when there are more than one defendants in the case and any of them
appears.

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Appearance of defendant
The provisions laid down to deal with the appearance of only the defendant has been laid down from rule 7-11 of Order IX.
When the defendant appears but there is non-appearance of the plaintiff, then there can be two situations:

1. The defendant does not admit the claim of the plaintiff, either wholly or any part of it.
2. The defendant admits the plaintiff claim.
If the defendant does not admit the claim of the plaintiff, then the court shall order for dismissal of the suit. But, when the
defendant admits completely or any part of the claim made by the plaintiff then the court is empowered to pass a decree
against the defendant on the ground of such admission and for rest of the claim, the suit will be dismissed.

Dismissal of the suit of the plaintiff without hearing him is a serious matter and it should not be adopted unless the court
gets satisfied that in the interest of justice such dismissal is required, as cited by Beaumont, C.J. in the case of Shamdasani
v. Central Bank of India.

Do the same provision applies to the non-appearance of the plaintiff due to death?

When the plaintiff does not appear because of death, the court has no power to dismiss the suit. Even if such order is passed
it will amount to a nullity as held in the case of P.M.M. Pillayathiri Amma v. K. Lakshi Amma.

Application to set aside the dismissal

When the suit has been dismissed on the ground of non-appearance of the plaintiff then he can make an application to set
aside the order of dismissal. If the court is satisfied with the reason of non-appearance as a sufficient cause then the court
can set aside the order dismissing the suit and fix a day for the proceeding of the suit.

Sufficient cause

For considering the sufficient cause of non-appearance of the plaintiff the main point to be considered is whether the
plaintiff really tried to appear on the day which was fixed for hearing or not. When sufficient cause is shown by the plaintiff
for his non-appearance, then it is mandatory for the court to reopen the suit. In absence of sufficient cause, it is upon the
discretion of the court to set aside the dismissal or not as held in the case of P.K.P.R.M. Raman Chettyar v. K.A.P.
Arunachalam Chettyar. Sufficient cause depends upon the facts and circumstances of each and every case.

In the case of Chhotalal v. Ambala Hargovan, the Bombay High Court observed that if the party arrives late and find its
suit dismissed due to his non-appearance then he is entitled to have his suit or application restored with the payment of
costs.

When summon is not served

Rule 2 to 5 of Order IX lays down the provision for the situation when the summon is not served to the defendant. One of
the fundamental law of procedural law is that a party must be given a fair opportunity to represent his case. And, for this, a
notice of the legal proceedings initiated against him is obligatory. Therefore, service summons to the defendant is
mandatory and it is a conditional precedent.

When there is no service of summons or it does not give him sufficient time for effective presentation of the case then a
decree cannot be passed against him as held in the case of Begum Para v. Luiza Matilda Fernandes.

Rule 2 of Order IX also holds that when the plaintiff fails to pay costs for service of summons to the defendant then the suit
may be dismissed. But, no dismissal can be made even in the presence of such failure if the defendant appears on the day of
hearing either in person or through his pleader. However, the plaintiff is entitled to file a fresh suit when the suit is
dismissed under this rule. and, if the court is satisfied that there is a reasonable reason behind such failure to pay costs then
the court may set aside the order of dismissal.

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When the summon is returned unserved and the plaintiff does not apply for fresh summons for 7 days from which the
summon is returned unserved by the defendant or any of the defendants, then the court can dismiss the suit against the
defendant or such defendants

When the summon was not duly served to the defendant is not proved then the court can direct to issue a fresh summon to
the defendant for service. When the service of the summons is proved before the court but the time prescribed in the
summon is not sufficient for him to answer on the day which has been fixed, then the hearing can be postponed by the court
to a future date and notice will be given to the defendant.

Ex-parte Decree

When the defendant is absent on the day of the hearing as fixed in the summon an ex-parte decree can be passed. The ex-
parte order is passed when the plaintiff appears before the court on the day of the hearing but the defendant does not even
after the summon has been duly served. The court can hear the suit ex-parte and give ex-parte decree against the defendant.

An ex-parte decree is a valid one and it is not null and void but can be merely voidable unless it is annulled on a legal and
valid ground. An ex-parte can be enforced like a bi-parte decree and it has all the forces as a valid decree as held in the case
of Panduranga Ramchandra v. Shantibai Ramchandra.

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Remedies against an ex-parte decree

When an ex-parte decree has been passed against a defendant, the following remedies are available to him.

1. He can apply to the court under rule 13 of Order IX for setting aside the ex-parte decree passed by the court.
2. He can appeal against that decree under section 96(2) of the Code or, prefer revision under section 115 of the
code when no appeal lies.
3. He can apply for a review under Order 47 Rule 1.
4. A suit on the ground of fraud can be filed.

Setting aside an ex-parte decree

For setting aside an ex-parte decree an application may be made by the defendant. An application to set aside decree can be
made to the court passing that decree. There are certain rules to be followed for setting aside an ex-parte decree and if the
defendant satisfies the court with sufficient reason, then only the ex-parte decree which has been passed can be set aside.

The limitation period for making an application for setting aside an ex-parte decree is of 30 days.

The grounds on which an ex-parte decree can be set aside are:

1. When the summons has not been duly served.

2. Due to any “sufficient cause”, he could not appear on the day of the hearing.

Sufficient Cause
The term sufficient cause has not been defined anywhere but as held in the case of UCO Bank v. Iyengar Consultancy, it is
a question which is determined upon the facts and circumstances of the cases. The test to be applied for this is whether or
not the party actually and honestly intended to be present at the hearing and tried his best to do so. There are several
instances which have been considered as sufficient cause such as late arrival of the train, sickness of the council, the strike
of advocates, death of a relative of party etc.

The burden of proof that there was a sufficient cause of non-appearance is upon the defendant

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