CPC, 1908

ORDER 9
APPERANCE OF PARTIES TO THE SUIT AND
CONSQUENCES OF NON-APPERANCE

1. INTRODUCTION

The Code of Civil Procedure, 1908 (herein after referred to as CPC), governs the procedure
for civil litigation in India. Order IX specifically deals with the appearance and non-
appearance of parties, ensuring that no case is decided to a party’s disadvantage without a fair
opportunity to be heard.

Order IX comprises 14 rules designed to ensure a fair hearing and equal opportunity for both
parties. It covers:

 The appearance of parties at different stages of the hearing,

 The legal consequences of their non-appearance, and
 The remedies available in cases of dismissal of suits or ex parte decrees.

2. THE APPEARANCE OF PARTIES TO THE SUIT

Under Rule 1 of Order IX of the CPC, both the plaintiff and the defendant are required to
appear before the court on the date specified in the summons, either personally or through
their pleaders (legal representatives). This ensures that both parties have the opportunity to
present their case.

Under Rule 12, if a plaintiff or defendant, who has been specifically ordered to appear in
person, fails to do so and does not provide a sufficient or satisfactory cause for their non-
appearance, the court is empowered to take the following actions:
 If the plaintiff fails to appear, the suit may be dismissed.
 If the defendant fails to appear, the court may proceed ex parte against him.

3. NON-APPEARANCE OF BOTH PARTIES TO THE SUIT

Under Rule 3, if neither the plaintiff nor the defendant appears when the suit is called for
hearing, the court has the authority to dismiss the suit.
However, Rule 4, provides relief to the plaintiff in such circumstances. The dismissal of a
suit under Rule 3 does not operate as a bar to the institution of a fresh suit on the same cause
of action.
Additionally, the plaintiff can apply to set aside the dismissal by showing sufficient cause for
their non-appearance. If the court is satisfied, it may exercise discretion to set aside the order
and fix a new hearing date.

4. NON-APPEARANCE OF PLAINTIFF & APPEARANCE OF THE

DEFENDANT
According to Rule 8, when the suit is called for hearing and the defendant appears but the
plaintiff does not, the court is empowered to dismiss the suit.
However, if the defendant admits the plaintiff’s claim, either wholly or in part, the court shall
pass a decree to the extent of such admission and dismiss the suit for the remaining portion, if
any.

Rule 9 provides that if a plaintiff fails to appear when a suit is called for hearing, and the
court dismisses the suit either wholly or in part under Rule 8, the plaintiff is generally barred
from filing a fresh suit based on the same cause of action.

However, the plaintiff can apply to the court to have the dismissal set aside by showing
sufficient cause for their absence. If the court is satisfied that the non-appearance was
justified, it may set aside the dismissal, impose conditions like costs, and fix a new date for
hearing.

Importantly, no order to set aside the dismissal can be made without first giving notice of the
application to the opposite party.

Rule 10 addresses a civil suit with multiple plaintiffs where one or more fail to appear at the
hearing. If at least one plaintiff is present, personally or through a representative, the court
may allow the suit to continue as if all plaintiffs were present. The court can proceed at the
request of the appearing plaintiff(s) or pass any other appropriate order based on the
circumstances.

5. NON-APPEARANCE OF DEFENDANT & APPEARANCE OF THE

PLAINTIFF
Rule 6 applies when the plaintiff appears in court but the defendant does not, on the day fixed
for hearing. The rule guides the court on how to proceed depending on whether the defendant
received proper notice (summons).
Under Rule 6 (1) (a), if the summons was duly served, but the defendant still failed to appear,
the court may proceed to hear the case ex parte, meaning the hearing will continue in the
defendant’s absence and the court can decide the matter based solely on the plaintiff’s
evidence.
In Maya Devi vs. Lalta Prasad, the SC held that absence of defendant does not absolve the
Court from its duty to do justice. It is bound to ensure that the averments in the plaint stand
proved and the prayers are worth of being granted.

Under Rule 6 (1) (b), if the summons was not properly served, the court cannot proceed ex
parte and must issue a fresh summons to the defendant and give him a fair chance to respond
and defend.
Under Rule 6 (1) (c), if the summons was served on the defendant but not in sufficient time
for the defendant to appear in court and prepare for the hearing, the court must postpone the
hearing and ensure the defendant is notified of the new date.
Finally, if the summons was not duly served or was not served in sufficient time due to the
plaintiff’s own default, the court can order the plaintiff to pay the costs caused by the delay.

5.1. WHERE SUMMONS ARE NOT SERVED

According to Rule 6(1)(b), if the summons has not been duly served, the court cannot
proceed ex parte. In such a case, it must issue a fresh summons to the defendant, ensuring that
he is given a fair opportunity to appear and present his defence.

Under Rule 2, when the summons is not served on the defendant because the plaintiff failed
to pay court fees, postal charges, or submit copies of the plaint (as required by Order VII
Rule 9 of CPC), the Court may dismiss the suit.
However, if the defendant appears in person or through an authorized agent despite the
plaintiff’s failure, the Court cannot dismiss the suit.

In Amruddin Ansari v. Afjal Ali, the court held that dismissal of a suit under both Rules 2
and 3 as it is on purely technical grounds, does not operate as res judicata for institution of a
fresh suit upon the same subject matter.

Under Rule 4, if a suit is dismissed under Rule 2, the plaintiff has two options:
 File a fresh suit, subject to the law of limitation, or
 Apply to restore the dismissed suit by showing sufficient cause for the failure. If the
Court is satisfied, it sets aside the dismissal and fixes a new date to proceed with the
case.
Under Rule 5(1), if the summons is issued but returned unserved, and the plaintiff does not
apply for a fresh summons within seven days from the return date, the Court shall dismiss the
suit against that defendant.
However, the Court may extend the time if the plaintiff shows:
a) He made genuine efforts to find the defendant’s address, or
b) The defendant is avoiding service, or
c) There is any other sufficient cause for extending the time.
In Shree Sanand Textile Industries Ltd. v. M/s. Naranji Peraj Transport Co., the Gujarat High
Court held that under Rule 5 of Order 9, if a plaintiff fails to apply within one month for
reissue of unserved summons, the suit must be dismissed. The Court noted that replacing the
word “may” with “shall” shows the Legislature’s intent to make this rule mandatory, giving
the Court no discretion.

Rule 5(2) states that, if the suit is dismissed under Rule 5(1), the plaintiff may file a fresh
suit, again subject to the law of limitation. Unlike Rule 4, restoration is not specifically
provided here, the remedy is mainly to institute a new suit.

5.2. WHERE SUMMONS ARE SERVED

As per Rule 6(1)(a), when the summons has been properly served and the defendant fails to
appear, the court is empowered to proceed ex parte. This means the case will be heard in the
defendant’s absence, and the court may decide the matter based solely on the evidence
presented by the plaintiff.
An ex parte decree is thus a decree passed in the absence of the defendant (in absentia). When
the plaintiff appears before the court and the defendant, despite being duly served, does not
appear on the scheduled date of hearing, the court may lawfully conduct the proceedings ex
parte and render a decree in favour of the plaintiff.
Such a decree is valid and operative, it is not null and void but merely voidable, meaning it
remains enforceable and binding unless it is set aside on legal and valid grounds. Unless and
until annulled by the court, an ex parte decree holds the same force, effect, and enforceability
as a decree passed after a full contest. Therefore, an ex parte decree is deemed proper, lawful,
and effective in the eyes of the law, ensuring that justice is not defeated by a defendant’s
deliberate or negligent absence.

Under Rule 7, if the case has been adjourned for ex parte hearing and the defendant appears
at or before such hearing and shows good cause for his earlier absence, the Court may allow
him to be heard in the case. The Court can also impose terms as to costs or other conditions
before permitting him to defend as if he had appeared on the original date.
In Sangram Singh v. Election Tribunal, Kotah, the Supreme Court set aside the Tribunal’s
order, holding that non-appearance permits the court to proceed in absence but does not
constitute a strict ex parte order. Citing Order IX Rule 7 and Order XVII Rule 2 CPC, the
Court held that a party who later appears may still participate, though without regaining
earlier procedural advantages

Under Rule 11, when there are multiple defendants and some appear while others do not, the
Court shall proceed with the suit against those who are present. At the time of giving
judgment, the Court will make appropriate orders regarding the absent defendants, as it
deems just.

Under Rule 13, if a decree is passed ex parte, the defendant can apply to have it set aside.
The Court will do so if he proves either:
 The summons was not duly served, or
 He was prevented by sufficient cause from appearing.
The Court may impose conditions, as to costs, payment into Court or otherwise as it thinks
fit, and fix a new date for hearing.
Additionally, if a decree involves multiple defendants and cannot be fairly altered for just one
defendant, the Court may set aside the decree for all or some of the other defendants as well.
However, if the defendant knew the hearing date and had enough time to appear, the Court
will not set aside the decree merely for irregular service.
Also, once an appeal against the ex parte decree has been finally decided, except if
withdrawn, no further application to set it aside can be made.

In G.P. Srivastava v. R.K. Raizada, the Supreme Court laid down key principles regarding
setting aside an ex-parte decree under Order 9 Rule 13 CPC:
i. If sufficient cause for non-appearance is shown, the ex-parte decree should be set
aside, and the past conduct of the party should not be considered.
ii. Courts should not adopt a hyper-technical approach. When an application is filed
promptly and the absence is neither mala fide nor intentional, discretion should
ordinarily be exercised in favour of the applicant, subject to payment of costs.
iii. The expression “sufficient cause” must be liberally construed to ensure complete
justice where no negligence or deliberate inaction is attributable to the party.
iv. The cause for non-appearance must relate specifically to the date when the party
was proceeded ex-parte; prior negligence, if earlier condoned, should not be used to
deny relief.
Under Rule 14, before any ex parte decree is set aside, the plaintiff (opposite party) must be
given notice of the defendant’s application. This ensures fairness and an opportunity to be
heard before the decree is reversed.

5.3. REMEDIES AGAINST AN EX PARTE DECREE

When an ex parte decree is passed against a defendant, the law provides several remedies
through which the defendant can seek redress. These remedies ensure fairness and allow the
defendant to provide a valid explanation for non-appearance or to challenge the decree on
legal grounds. The main remedies are as follows:

I. APPLICATION FOR SETTING ASIDE EX PARTE DECREE (ORDER 9

RULE 13)
A defendant against whom an ex parte decree has been passed may apply to the same court
under Order 9 Rule 13 of CPC to have the decree set aside. To succeed in such an
application, the defendant must prove either of the following :
(a) That the summons was not duly served, or
(b) That there was sufficient cause for not appearing before the court on the date of hearing.

The limitation period for filing an application under this provision is 30 days from the date of
the decree, as prescribed under Article 123 of the Limitation Act, 1963. If the court is
satisfied that the defendant’s explanation is bona fide and supported by evidence, it may set
aside the ex parte decree and restore the suit for hearing on merits.
In Dwarika Prasad (D) Thr LRs vs. Prithvi Raj Singh, the Hon’ble Supreme Court held
that under Article 123 of the Limitation Act, an application to set aside an ex parte decree
under Order 9 Rule 13 CPC must be filed within 30 days from the date of the decree. If there
is a delay, it may be condoned under Section 5 of the Limitation Act, and a separate
application for condonation is unnecessary if the main application itself explains the delay.
The Court emphasized that procedure is the handmaid of justice. The Supreme Court held
that an illiterate defendant who was not properly informed by his advocate about the
proceedings has shown sufficient cause for condonation of delay.

II. APPEAL
An appeal is another remedy available to a defendant aggrieved by an ex parte decree. Under
the CPC, an appeal from an original ex parte decree lies under Section 96(2), while an appeal
from an appellate ex parte decree lies under Section 100(2).

The Explanation to Rule 13 of Order 9 clarifies that once an appeal against an ex parte
decree has been finally decided, except where it is withdrawn, no further application under
Rule 13 to set aside that decree can be made.
In Rani Choudhury v. Lt. Col. Suraj Jit Choudhury, the Supreme Court held that the 1976
amendment to the CPC aimed to simplify procedure and prevent a dual challenge to a decree.
The Explanation to Order 9 Rule 13 restricts the defendant to one remedy—if an appeal
against the decree is not withdrawn and is decided on any ground, the right to seek relief
under Rule 13 is barred.

III. REVIEW
A person aggrieved by an ex parte decree may also file a review petition under Order 47
Rule 1 read with Section 114 CPC before the same court that passed the decree.
A review can be sought on specific grounds such as discovery of new and important
evidence, an error apparent on the face of the record, or any other sufficient reason. This
remedy provides the court an opportunity to reconsider its decision without the need for an
appeal.

IV. REVISION
A revision petition lies to the High Court under Section 115 of CPC against the decision of
the lower Court rejecting an application filed under Rule 13 of Order 9 to set aside ex parte
decree.
It is important here to note that revision petition lies not against an ex parte decree but against
an order of lower Court rejecting the application to set aside ex parte decree.

In Arjun Singh v. Mohindra Kumar, the Supreme Court held that the inherent powers of the
Court cannot override express provisions of law. Where the CPC specifically provides for a
matter—such as setting aside an ex-parte decree under Order 9 Rule 13—the Court cannot
invoke its inherent powers under Section 151 CPC to bypass or supplement those provisions.
TABLE OF CASES

Amruddin Ansari v. Afjal Ali, 2025 SC.

Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993.
Dwarika Prasad (D) Thr LRs vs. Prithvi Raj Singh, Civil Appeal No. of 2024 (Arising out of
SLP (C.) No.11259 of 2022.
G.P. Srivastava v. R.K. Raizada, AIR 2000 SC 1221.
Maya Devi vs. Lalta Prasad, (2015) 5 SCC 588.
Rani Choudhury v. Lt. Col. Suraj Jit Choudhury, 1982 (2) SCC 596.
Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425.
Shree Sanand Textile Industries Ltd. v. M/s. Naranji Peraj Transport Co., AIR 1996 Guj 107.