- Order IX of the Code of Civil Procedure contains the rules controlling the appearance of parties and the consequences of their failure to appear.
- Ex-parte decree has the same legal validity, enforceability and operation as any other bi-parte decree.
- If neither the plaintiff nor the defendant present in court when the case is called for hearing comes under Order IX Rule 3.
- The appearance of only the defendant is found in Order IX, rules 7-11.
- Ex-parte decree as Res Judicata
One of the most basic foundations of natural justice is the right to be heard in court and our Civil Procedure Code expressly recognizes this right.As a general rule of law, every process must be conducted in the presence of the parties to the extent practicable. The provisions governing the appearance of parties and the penalties of their non-appearance are laid forth in Order IX of the Code of Civil Procedure.The parties to the matter are obligated to appear in court on the day specified in the summons, either in person or through their pleaders, as stated in Rule 1 of Order IX of the Code of Civil Procedure.An 'ex parte decree' is a court order issued in the absence of the defendant. Despite issuance of summons, if only the plaintiff appears on the day of hearing and the defendant does not, the Court may hear the case ex parte and enter a judgement against the defendant. This decree has the same legal validity, enforceability and operation as any other bi-parte decree.If a plaintiff or defendant fails to attend in person when ordered by the court and fails to provide adequate reason the court has the authority to do the following under Rule 12 of Order IX: i) If the plaintiff fails to appear, the case should be dismissed ii) Issue an ex-parte order if the defendant fails to attend.
NON-APPEARANCE OF BOTH PARTIES
When neither the plaintiff nor the defendant shows in court when the case is summoned for hearing the court has the authority to dismiss the case under Order IX Rule 3. The dismissal of the litigation under this rule does not preclude the filing of a new suit under Rule 4 on the same cause of action.The plaintiff might also ask the court to overturn the dismissal if he can show that there was a good reason for his non-appearance. If the court is pleased with the reason for the non-appearance, it may vacate the dismissal decision and set a date for the suit's hearing.
APPPEARANCE OF PLAINTIFF
When just the plaintiff shows but the defendant does not, an ex-parte order against the defendant might be issued. The plaintiff on the other hand, must show that the summons was served on the defendant.
If service of the summons is established, the court might proceed ex parte against the defendant and issue a judgement in the plaintiff's favour. This clause only applies to the initial hearing of the matter and not to subsequent hearings as held in the case of Sangram Singh v. Election Tribunal.Even if the court issues an ex-parte order, it is the court's responsibility to ensure that justice is carried out even if the defendant is not present. The Supreme Court ruled in Maya Devi v. Lalta Prasad that "it is the court's obligation to ascertain that assertions in the plaint are substantiated and the requests placed before the court are worthy of being granted." When there are many defendants in a case and any of them appears, this provision of passing an ex parte order cannot be used.
APPEARANCE OF DEFENDANT
The provisions for dealing with the appearance of only the defendant are found in Order IX, rules 7-11. When the defendant shows but the plaintiff does not, one of two things can happen:
i. The defendant does not acknowledge the plaintiff's claim in its entirety or in any portion.
ii. The defendant acknowledges the plaintiff's allegations.
If the defendant refuses to acknowledge the plaintiff's claim, the case will be dismissed by the court. However, if the defendant acknowledges all or part of the plaintiff's claim the court has the authority to issue a decree against the defendant on that basis and the action will be dismissed for the remainder of the claim.As mentioned by Beaumont, C.J. in the case of Shamdasani v. Central Bank of India, dismissing a plaintiff's complaint without hearing him is a serious issue that should not be undertaken unless the court is persuaded that such dismissal is warranted in the interests of justice.
NON-APPEARANCE OF PLAINTIFF DUE TO DEATH
The court has no authority to dismiss a lawsuit if the plaintiff does not attend due to death. Even if such an order is issued, it will be void, as the case of P.M.M. Pillayathiri Amma v. K. Lakshi Amma shown.
REMEDIES AVAILABLE AGAINST EX PARTE DECREE
- An Application Under Order 9, Rule 13: The defendant may apply to the Court by which the decree was passed for an order to set it aside, and if the Court is satisfied that the summons was not duly served, or that he was prevented by any sufficient means from appearing when the suit was called on for hearing, the Court may make such order setting aside the decree against him as it thinks fit, and shall appoint a day for proceeding with the suit, according to Order 9 Rule 13.
- Appeal Under Section 96: Appeal from the original decree (Section 96) (2) An appeal from an ex-parte decree may be possible.Any court order can be appealed unless it is specifically stated otherwise. Only a point of law can be appealed in circumstances where the value of the litigation is less than Rs.10,000. When the Defendant has been found guilty of a crime, an ex-parte appeal is available. The majority decision will take precedence in instances involving two or more judges. If there isn't a majority, the lower court's decision will be upheld.
- A Review Application Under Section 114 of CPC: Review- Subject to the aforementioned, any person thinking himself aggrieved-
(a) by a decision or order from which an appeal is permitted by this Code but from which no appeal has been preferred.
(b) by a decree or order from which there is no appeal under this Code
(c) by a decision on a referral from a Court of Small Causes, may apply to the Court that issued the decree or made the order for a review of judgement and the Court may make whatever order it sees proper.
If the conditions precedent set out in Section 114 are met, the court has the authority to reconsider its order. The substantive legislation does not impose any restrictions on the court's power, except those that are specifically stated in Section 114 of the code, under which it is entitled to issue any order it sees proper. In another case, Kaptur Agro Forest Enterprises V. Union of India, the issue to the concession in respect of and overhead charged was resolved in an earlier writ petition by the allotters, and the supreme court dismissed the special leave petition in a special leave petition.
EX PARTE DECREE AS RES JUDICATA
Unless it is set aside, an ex parte decree is valid and enforceable. The true criteria for res judicata, however, is whether the case was determined on the merits. The real test for determining whether the judgement was given on the merits or not is whether it was merely formally passed as a matter of course, or as a penalty for the defendant's conduct, or is based on a consideration of the truth or falsity of the plaintiff's claim, despite the fact that the evidence was led by him in his absence. As a result, just because a decree was issued ex parte does not make it res judicata. As a result, it serves as a res judicata.
SETTING ASIDE AN EX PARTE DECREE
The defendant may file an application to have an ex-parte decree overturned. A motion to set aside a decree can be filed with the court that issued it. There are certain standards to follow when setting aside an ex-parte decree and only the ex-parte order that has been passed can be set aside if the defendant provides the court with adequate justification.A 30-day restriction period applies to filing an application to set aside an ex-parte decree.
1. Sufficient Cause: The major factor to examine when determining whether or not the plaintiff tried to attend on the scheduled hearing date is whether or not the plaintiff tried to appear on the scheduled hearing date. It is essential for the court to reopen the case if the plaintiff shows good grounds for his non-appearance. In the absence of adequate reason, as established in the case of P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar, the court has the discretion to set aside the dismissal or not. Each case's facts and circumstances determine whether there is sufficient reason.
The Bombay High Court held in Chhotalal v. Ambala Hargovan that if a party arrives late and has his or her action dismissed owing to his or her non-appearance, he is entitled to have his or her suit or application reinstated with the payment of costs.
2. When summon is not Served: The provisions for the event when the summons is not served on the defendant are laid forth in Rules 2 to 5 of Order IX. A party must be given a fair opportunity to submit his argument, according to one of the fundamental rules of procedural law. And, in order to do so, he must be given notice of the legal actions that have been begun against him. As a result, delivery of summons on the defendant is required and a conditional precedent.As established in the case of Begum Para v. Luiza Matilda Fernandes, a decree cannot be issued against someone if he is not served with a summons or if the summons does not provide him with the time to plead his case effectively.
The claim may also be dismissed if the plaintiff fails to pay the expenses of delivery of summons to the defendant, according to Rule 2 of Order IX. However, even if the defendant fails to attend in person or through his pleader on the day of the hearing, no dismissal can be issued. When a lawsuit is dismissed under this provision, the plaintiff is entitled to bring a new lawsuit. If the court determines that there is a justifiable explanation for the failure to pay costs, the court may overturn the dismissal decision.When a summons is returned undelivered and the plaintiff does not seek for a new summons within 7 days of the summons being returned undelivered by the defendant or any of the defendants, the court has the authority to dismiss the case against the defendant or defendants.
When it is not proven that the summons was not properly served on the defendant, the court may order that a new summons be issued for service. When the court finds that the summons was properly served but that the time allotted in the summons is insufficient for him to respond on the scheduled day, the court may postpone the hearing to a later date and give notice to the defendant.
The presence or absence of parties has an impact on the case and whether it will be continued for the next hearing, dismissed, or granted an ex-parte order. If neither party shows up, the court has the authority to dismiss the case. Only when both parties present in court for the following hearing is the case continued.If the plaintiff comes in court but the defendant does not show up on the scheduled hearing day, the court may issue an ex-parte order against the defendant. In cases when the plaintiff fails to attend, the suit can be dismissed if the defendant disputes the plaintiff's claim, and if he agrees to any claim, the court can issue an order against him on the basis of his admission.If an action is dismissed or an ex-parte order is issued, it might be set aside if there is a good explanation for the absence of one of the parties. If the court is pleased with the explanation for the absence, the dismissal or ex-parte order may be set aside. Throughout all of these steps, the court must remember that no miscarriage of justice occurs during the dismissal or the issuance of an ex-parte order.When a defendant fails to appear in court on the day specified in the summons validly served on him, the court has the authority under Order 9, Rule 6(1)(a) to proceed ex parte and issue an ex parte decision against him.