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HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, C.G.

APPEARANCE OF PARTIES AND CONSEQUENCE OF


NON APPEARANCE

PROJECT SUBMITTED TO
Ms. Apurva Verma
(FACULTY: CPC)

PROJECT SUBMITTED BY
POOJA MALOO
ROLL NO. 86
SEMESTER IX
SECTION - B

DATE OF SUBMISSION - 10.10.2014

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ACKNOWLEDGMENTS

Acknowledgment is due to Apurva Maam for her constant guidance and encouragement. I
would like to express my heartfelt gratitude towards him for allotting me project topic such as
this and help me grow as a student.

My gratitude also goes out to the staff and administration of HNLU for the infrastructure in the
form of our library and internet facilities.

- POOJA MALOO

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RESEARCH METHODOLOGY

This doctrinal research is descriptive and analytical in nature. My research paper is largely based
on secondary and electronic sources of information. Books and other references used as guided
by the Faculty of CPC have helped immensely in the research undertaken. The researcher has
relied on a number of case facts and various court decisions to come to a better conclusion as
regards the issues raised in this paper.

OBJECTIVES

The researcher seeks to look into appearance of parties and consequences of non appearance vis-
-vis Order IX CPC.

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 5

CONNOTATION OF THE WORD APPEARANCE................................................................. 6

DISMISSAL OF THE SUIT FOR THE LACKING OF PROCESS FEE BY THE PLAINTIFF . 8

CONSEQUENCES OF NON-APPEARANCE BY EITHER PARTY .......................................... 9

CONSEQUENCES OF NON-APPEARANCE BY PLAINTIFF ................................................ 10

CONSEQUENCES OF NON-APPEARANCE BY DEFENDANT ............................................ 11

CONCLUSION ............................................................................................................................. 15

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INTRODUCTION

Appearance and non-appearance of parties during trial before the court is a crucial issue to resolve civil
dispute. Mere appearance or non- appearance can determine the outcome of a civil litigation. The
provisions of the Code of Civil Procedure (CPC), 1908 are based on a general principle that, as far as
possible, no proceeding in a court of law should be conducted to the detriment of any party in his/her
absence. In law, appearance means appearance in person or through advocate for conducting a case.
However, appearance by a pleader within the meaning of CPC does not mean mere presence in the court;
it means appearance by a pleader duly instructed and able to answer all material questions relating to
the suit.

The appearance of parties is crucial to the progress of the suits. Substantive justice demands that if the
matter is decided on merits, then the parties must be given the best possible chance of making their case,
which depends on the appearance of parties. This however, is subject to them knowing of the existence of
such proceedings, which is done through the process of issuing summons, after which the parties are
expected to come and present their case on the appointed date.

Order 9 deals with the appearance and non-appearance of parties and the consequences of such actions. It
enumerates the provision of consequences of appearance and non-appearance of parties in a civil
litigation. Rule 2 enumerates the consequence of failure to pay the costs. Rule 3 provide the
consequences of non appearance of both the parties to the suit. Rule 6 and Rule 11 enumerates the
consequences of non-appearance of the defendant(s). Rule 8 and Rule 10 deals with the provision of non-
appearance of the plaintiff(s). The same is discussed in detail in the following pages.

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CONNOTATION OF THE WORD APPEARANCE

The word "appearance" has nowhere been defined in the Code. This necessitates an examination of the
meaning of the word "appearance" used in various Rules. Order 3, Rule 1 prescribes that any appearance,
except where otherwise expressly provided by any law for the time being in force, be made or done by the
party in person, or by his recognized agent, or by a pleader.

Order 5, Rule 1, Sub-rule (2) says that a defendant to whom summons has been issued under Sub-rule (1)
may appear in person, or by a pleader duly instructed and able to answer all material questions relating to
the suit, or by a pleader accompanied by some person able to answer all such questions. Order 5, Rule 3
lays down that where the Court sees reason to require the personal appearance of the defendant, the
summons shall order him to appear in person in Court on the day therein specified, and where the court
sees reason to require the personal appearance of the plaintiff on the same day, it shall make an order for
such appearance.

As observed by the Hon'ble Supreme Court, albeit in a different context, in State of West Bengal v.
Pranab Ranjan Roy1 :

"Order 41 Rule 17 of the Code deals with the consequence when the appellant in an appeal does not
"appear". In all such instances, "appearance" would include appearance by the advocate, because it is
made so clear in Order 3 Rule 1 of the Code that any appearance required by law to be made in any court
may be made "by the party in person, or by his recognized agent or by his pleader on his behalf".

P.B. Mukherjee J. observed in Debendra Nath Dutt v. Smt. Satyabala Dasi and Ors2:

The words "appear" and "non-appearance" must be read and construed so as to mean and include not
merely appearance by the party himself but also appearance through recognised agents and solicitors on
the original side who hold power of attorney. These words in Rule 8 and Rule 9 of Order 9 of the Code
should, in my opinion, be read and interpreted in accordance with the meaning of the word "appearance"
as provided by Rule 1 and Rule 2 of Order 3 of the Code.

Thus, appearance means appearance in person or through pleader prepared to conduct the case.

As to the meaning of the word "appearance" there is some conflict of authority. The matter was
considered by a Full Bench of five Judges of the Calcutta High Court in Satis Chandra v. Ahara Prasad3.
Sir Ashutosh Mukherji's view in the referring judgment may be quoted -

"The term "appearance" is nowhere defined in the Code and, as pointed out by Benson, J. has several
significations; the word must always be understood in reference to the particular subject matter to which it

1
State of West Bengal v. Pranab Ranjan Roy, (1998) 3 SCC 209
2
Debendra Nath Dutt v. Smt. Satyabala Dasi And Ors, AIR 1950 Cal 217, 54 CWN 110
3
Satis Chandra v. Ahara Prasad, ILR 34 Cal 403

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relates, and the purpose or end to be answered by the appearance has an important bearing in determining
what is sufficient to constitute appearance in a particular case."

In Sikandar Ali v. Kushal Chandra4, the Lordships observed as to what appearance means:

"The word 'appearance' apparently means appearing in the suit. A party may be present in the precincts of
the Court or he may be found present in the Court room. But if he does not take part in the suit, it cannot
be said that he has appeared. This is what is meant by Order 9, Rules 6 and 8. If a plaintiff comes to Court
and files an application for adjournment and when the application is refused, he retires from the suit,
though he may not have physically retired from the Court, he is not to be considered any longer to be
present in the suit and any order passed in such circumstances must be taken to be an order passed ex
parte."

The trend of the later decisions has been not to treat mere physical presence of a pleader as appearance.
Mukherjee J. observed that if the pleader is unable to answer all material questions relating to the suit, to
treat his mere physical presence as appearance would defeat the policy of the law and the course of
justice5. G.K. Misra, J. rightly pointed out, The hub of the administration of justice is not the Court but
the party. The Court is merely a machinery. Mere presence of a party most often would not conduce to or
subserve the interest of the party in establishing his case.6

4
Sikandar Ali v. Kushal Chandra, AIR 1932 Cal 418
5
Supra Note3
6
Mulia Maharana v. Narayan Patra And Anr, AIR 1964 Ori 246

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DISMISSAL OF THE SUIT FOR THE LACKING OF PROCESS FEE BY THE
PLAINTIFF

Order 9 Rule 2 states:

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 of postal charges (if any)
chargeable for such service, [or to present copies of the plaint or concise statements, 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.

Therefore under Order 9 Rule 2, there is a clear provision that if the summons is not served upon the
defendant, in consequence of the failure of the plaintiff to pay Court-fee or postal charges, if any,
chargeable for such service or to present copies of the plaint or concise statements, as required by Order
7 Rule 9, Court may make order that the suit be dismissed, and no appeal lies from such order of
dismissal as it is a form of dismissal for default and not a decree. The plaintiffs remedy lies under r4 of
O9.

The thrust, therefore, is on the inaction on the part of the plaintiff and it is clear that while after filing the
suit the plaintiff remains inactive, by not making the payment of Court-fee or postal charges chargeable
for such service or fails to present copies of the plaint or concise statements, then the Court would be
justified in dismissing the suit.7 Therefore, the whole suit cannot be dismissed where the plaintiff had
failed to serve on some of the defendants.8

R4 stands amended by the Amending Act of 2002. This amendment is intended to be time saving step as
it would require the plaintiff to be vigilant enough to file the process fee and the required copies of plaint
within seven days from the date of order of summons as required by r9 of O7.Although, it is not in
consonance with the provisions of r9 of O7 as failure to comply with the said provision would lead to
rejection of plaint under r11 of O7 but by the 2002 amendment, the court is empowered to dismiss the
suit in case of non-compliance of r9 of O7. It is, however, not obligatory upon the court to dismiss the
suit.

It is to be noted here that in Salem Advocate Bar Assn. v. Union of India9 wherein while considering the
effect of the amendments introduced in the Code by the amending Acts 46 of 1999 and 22 of 2002, it
was observed in Para 16 that the attention of the Court had been drawn to Order 7 Rule 11 to which
Clauses (e) and (f) had been added which enabled the Court to reject the plaint where it is not filed in

7
NPR Finance Limited v. Deepak Jhunjhunwala, MANU/WB/0027/2010
8
Ramanand Singh v. Chandrama Singh, AIR 1921 Pat 422
9
Salem Advocate Bar Assn. v. Union of India, AIR2003SC189

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duplicate or where the plaintiff failed to comply with the provisions of Rule 9 Order 7. The Apex Court
was of the view that the said Clauses being procedural would not require the automatic rejection of the
plaint at the first instance. If there was any defect as contemplated by Rule 11(e) or non-compliance as
referred to in Rule 11(f), the Court should ordinarily give an opportunity for rectifying the defects and in
the event of the same not being done, the Court will have the liberty or the right to reject the plaint.

CONSEQUENCES OF NON-APPEARANCE BY EITHER PARTY

(a.) Order 9 Rule 3 states:

Where neither party appears when the suit is called on for hearing, the Court may
make an order that the suit be dismissed.

Rule 3 contemplates neither party appearing when the suit is called on for hearing. It requires
appearance of the parties when the suit is called on for hearing and not appearance in the suit
itself or even physical presence of a party in the Court room, if he chooses to be silent, and
does not respond to the call.10

From the wordings of the provision it is clear that that the dismissal under this rule is not a
decree but an order. Therefore, where the suit is dismissed under Rule 3, the plaintiff may
either bring a fresh suit, or he may apply for an order to set the dismissal aside under Rule 4.

(b.) Order 9 Rule 4 states:

Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of
limitation) 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 [such failure as is
referred to in rule 2], 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.

From bare reading of the aforesaid provision i.e. Rule 4 of Order 9 CPC, it is manifestly clear
that under Rule 4 of order 9 CPC, the legislature in express term has not precluded the
plaintiff from filing a fresh suit on the same cause of action in the event suit is dismissed
under Rule 2 or Rule 3 of Order 9 CPC, i.e., the two remedies prescribed by Rule 4 are not
mutually exclusive. In the case of Balkesia v. Mahant Bhagwan Gir11, a similar question

10
Suraj Prasad Singh and Anr. v. Rambaran Singh and Ors, AIR 1956 Patna 127
11
Balkesia v. Mahant Bhagwan Gir, AIR 1937 Patna 9

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came for consideration before a Division Bench of the Patna High Court. In that case also
taking the similar view His Lordship James, J. observed:

It appears to us that a reasonable reading of the rule provides that the plaintiff may bring
a fresh suit or he may apply for a setting aside the dismissal. If he satisfies the Court and
obtains an order setting aside the dismissal, he proceeds with his original suit. If having
applied for an order to set aside the order of dismissal, he fails to satisfy the Court and his
application is dismissed, he is left to his alternative remedy which is that he may, subject
to the law of limitation, bring a fresh suit."

Agreeing with the view His Lordship Rowland, J. has observed, R. 4 in effect does not create but
declares the right of bringing a fresh suit while at the same time permitting the plaintiff in the alternative
to proceed with his original suit. The former option the plaintiff has as of right; the other option is
available to him only if he can satisfy the Court that he had sufficient cause for the non-appearance or
other default which led to the dismissal of the suit.

Note Rule 4 does not provide for any notice being given to the opposite party before restoring a suit.

CONSEQUENCES OF NON-APPEARANCE BY PLAINTIFF

(a.) Order 9 Rule 8 states:

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.

Rule 8 contemplates the defendant appearing and the plaintiff not appearing when the suit is called on for
hearing. All that a defendant is entitled to under this rule is to have the plaintiffs suit dismissed. When a
suit is dismissed under this rule, the plaintiff is precluded from bringing a fresh suit for the same cause of
action. He can however apply to the same court to set aside the order of dismissal under r9 on showing
sufficient cause for his non-appearance. The dismissal of the suit does not operate as res judicata. It only
imposes a disability on the plaintiff. It is a rule of estoppels which has found statutory recognition in O9,
R812.

This Rule is based on sound public policy. The principle underlying this provision is that a litigant who
comes to Court with a cause should agitate the matter with due diligence and take a decision on merits, so
that finality is reached. Otherwise, there would not be any finality, and the opposite party could be
harassed endlessly, by allowing the proceedings to be dismissed for non-prosecution and re-agitate the

12
D. Sangya Naik v. Dept. of Telecom Delhi, AIR 2005 NOC 231

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matter time and again at his convenience and leisure. Then this judicial process would become an
instrument of oppression rather than a means to resolve disputes in a civilized way. Therefore, it is a rule
of estoppels which prevents the party from filing a suit on the same cause of action, if the earlier suit is
dismissed for non-appearance.

(b.) Order 9 Rule 9 states:

(1.) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from
bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set
the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-
appearance when the suit was called on for hearing, the Court shall make an order setting aside
the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit.

(2.) No order shall be made under this rule unless notice of the application has been served on
the opposite party.

Thus it is clear from the wording of the provision that the Court gets jurisdiction to consider an
application under this rule, only if an order has been passed under r8 for non appearance. If there were
no provision like Order 9, Rule 9, the plaintiff would suffer irreparable loss by dismissal of his suit
even if he had sufficient cause for his non-appearance, such as contemplated in Order 9, Rule 9.

CONSEQUENCES OF NON-APPEARANCE BY DEFENDANT

(a.) Order 9 Rule 6 states:

(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for
hearing, then-

[(a) When summons duly served- if it is proved that the summons was duly served, the Court
may make an order that the suit shall be heard ex parte;]

(b) When summons not duly served- if it is not proved that the summons was duly served,
the Court shall direct a second summons to be issued and served on the defendant;

(c) When summons served but not in due time- if it is proved that the summons was served
on the defendant, but not in sufficient time to enable him, to appear and answer on the day fixed
in the summons,

the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall
direct notice of such day to be given to the defendant.

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(2) Where it is owing to the plaintiff's default that the summons was not duly served or was not
served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the
postponement.

Discussing the scope of r 6(1)(a), the Supreme Court observed that it is confined to the first hearing in
the suit and does not per se apply to subsequent hearings13. Dealing with the meaning of the words "The
Court may proceed ex parte" in O. IX, r. 6(1)(a) Bose J. speaking for the Court said :"When the
defendant has been served and has been afforded an opportunity of appearing, then, if he does not
appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ex
parte order. Of course the fact that it is proceeding ex parte will be recorded in the minutes of its
proceedings but that is merely a statement of the fact and is not an order made against the defendant in
the sense of an ex parte decree or other ex parte order which the court is authorised to make. All that
rule 6(1)(a) does is to remove a bar and no more. It merely authorises the Court to do that which it
could not have done without this authority, namely to proceed in the absence of one of the parties."

And referring to the effect of the rejection of application made under O. XI, r. 7, he added:

"If a party does appear on the day to which the hearing of the suit is adjourned, he cannot be stopped
from participating in the proceedings simply because he did not appear on the first or some other
hearing. But though he has the right to appear at an adjourned hearing, he has no right to set back the
hands of the clock. Order IX. r. 7 makes that clear. Therefore, unless he can show good cause, he must
accept all that has gone before and be content to proceed from the stage at which he comes in."

Thus, the nature of the adjudication which the court makes under O. IX, r. 7, in its essence, is directed
to ensure the orderly conduct of the proceedings by penalising improper dilatoriness calculated merely
to prolong the litigation. It does not put an end to the litigation nor does it involve the determination of
any issue in controversy in the suit.

Dealing next with the scheme of the Code, the learned Judge pointed out that the manner in which the
Court could thereafter proceed i.e., after r. 6(1)(a) was passed would depend upon the purpose for which
the suit stood adjourned, and proceeded :

"If it is for final hearing, an ex parte decree can be passed, and if it is passed, then O. IX, r. 13 comes
into play and before the decree is set aside the Court is required to make an order to set it aside.

A defendant, against whom an ex parte decree has been passed under r 6 for default of appearance at the
hearing, has the following courses open to him as remedies14:

(i) He may appeal from the ex parte decree under s 96;


(ii) He may apply for a review of judgment under O 47, r 1;

13
Sangram Singh v. Election Tribunal, AIR 1955 SC 425
14
Awadh Narain v. Bhindeshwari, AIR 196 AP 79

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(iii) He may apply under r 13 for an order to set aside the ex parte decree, provided the
application is made within 30 days from the date of the decree, or where the summons
were not duly served, when he had knowledge of the decree, the relevant provision
now would be Art. 123 of the Limitation Act 1963.

(b.) Order 9 Rule 13 states:

In any case in which a decree is passed ex parte against a defendant, he may apply to the Court
by which the decree was passed for an order to set it aside; and if he satisfies the Court that the
summons was not duly served, or that he was prevented by any sufficient cause from appearing
when the suit was called on for hearing, the Court shall make an order setting aside the decree as
against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such
defendant only it may be set aside as against all or any of the other defendants also:

[Provided further that no Court shall set aside a decree passed ex parte merely on the ground
that there has been an irregularity in the service of summons, if it is satisfied that the defendant
had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's
claim.]

[Explanation.-Where there has been an appeal against a decree passed ex parte under this rule,
and the appeal has been disposed of on any ground other than the ground that the appellant has
withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte
decree.]

O. IX, r. 13 is a specific statutory remedy provided by the Code for the setting aside of ex parte decrees.15
The Supreme Court in its Judgment Parimal v. Veena16 has examined the provisions of Order IX Rule 13
of the Code of Civil Procedure, 1908.

In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether
the defendant honestly and sincerely intended to remain present when the suit was called on for hearing
and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed
for his absence. Therefore, the applicant must approach the court with a reasonable defense. Sufficient
cause is a question of fact and the court has to exercise its discretion in the varied and special
circumstances in the case at hand. There cannot be a strait-jacket formula of universal application.

15
Arjun Singh v. Mohindra Kumar and Ors, AIR 1964 SC 993
16
Parimal v. Veena, AIR 2011 SC1150

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The legislative attempt incorporating the Explanation to Order IX Rule 13 is to confine the defendant, to
either one of the remedies made available to him and not both. Dismissal of the appeal on any ground,
apart from its withdrawal constituted a bar on the jurisdiction of the trial court to set aside the ex-parte
decree. The scope of explanation to Order IX Rule 13 was considered by this Court in Rani Choudhury v.
Lt. Col. Suraj Jit Choudhury17. It was held:

"The Code of Civil Procedure (Amendment) Act, 1976 was enacted with the avowed purpose of
abridging and simplifying the procedural law. By enacting the Explanation, Parliament left it open to the
defendant to apply under Rule 13 of Order 9 for setting aside an ex parte decree or, in the case where he
had preferred an appeal, the appeal had been withdrawn by him. The withdrawal of the appeal was
tantamount to effacing it. It obliged the defendant to decide whether he would prefer or have the decree
set aside by the trial court under Rule 13 of Order 9. The legislative attempt incorporated in the
Explanation was to discourage a two-pronged attack on the decree and to confine the defendant to a single
course of action. If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of
on any other ground, he was denied the right to apply under Rule 13 of Order 9. The disposal of the
appeal on any ground, whatever, apart from its withdrawal, constituted sufficient reason for bringing the
ban into operation."

Similarly, the legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not
permissible for the court to allow the application in utter disregard of the terms and conditions
incorporated in the second proviso herein.

The approach of the court while dealing with an application under Order IX, Rule 13 Code of Civil
Procedure would be liberal and elastic rather than narrow and pedantic. However, in case the matter does
not fall within the four corners of Order IX, Rule 13 CPC, the court has no jurisdiction to set aside ex-
parte decree. The manner in which the language of the second proviso to Order IX, Rule 13 Code of
Civil Procedure has been couched by the legislature makes it obligatory on the appellate Court not to
interfere with an ex-parte decree unless it meets the statutory requirement.

17
Rani Choudhury v. Lt. Col. Suraj Jit Choudhury, 1982 (2) SCC 596

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CONCLUSION

The appearance of parties is crucial to the progress of the suits. Substantive justice demands that if the
matter is decided on merits, then the parties must be given the best possible chance of making their case,
which depends on the appearance of parties. This however, is subject to them knowing of the existence of
such proceedings, which is done through the process of issuing summons, after which the parties are
expected to come and present their case on the appointed date.

Order 9 deals with the appearance and non-appearance of parties and the consequences of such actions.
Rule 1 of this Order requires that the parties to the suit shall be present at the time when the defendant is
supposed to appear as per the summons. Rule 12 holds that where, a plaintiff or a defendant has been
asked to appear and he does not appear, or does not subsequently show good cause for not appearing, in
the case of a plaintiff, the suit shall be dismissed, while in the case of the defendant the suit shall be
decided ex parte.

While the rule with respect to appearance seems rather strict, it must be mentioned that the judicial
interpretation in this regard is that the parties must be given a few chances before they are either placed ex
parte or the suit is dismissed. Furthermore, where the suit is dismissed, the plaintiff is not entitled to file a
suit on the same cause of action, but may apply for the setting aside of the dismissal of the suit. For this of
course sufficient cause has to be shown for the non appearance. The court in these cases looks at whether
the plaintiff or the defendant had the honest intention to appear but could not do so or failed to do so for
some other reason which might not convince the court of sufficient reason, but might still show the court,
that the party intended to come.

The provisions with respect to appearance clearly show, that the code intends that the proceedings must
go on speedily with the parties present at all times when they are required to be present, while at the same
time being sensitive to the fact that there might be genuine reasons for the parties not being able to appear
and under such circumstances not penalizing them.

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REFERENCES

1. Mulla The Code of Civil Procedure, B.M. Prasad and Manish Mohan, 18th ed.2011, Vol. II,
Wadhwa and Company Nagpur.

2. Sarkar on The Code of Civil Procedure, Sudipto Sarkar and V.R. Manohar, 11th ed.2012
(rep.), Vol. I, Wadhwa and Company Nagpur.

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