APPEARANCE OF PARTIES AND CONSEQUENCES OF NON APPEARANCE

After the summons has been served to the defendant, the next stage is appearance of parties in the Court
on the date and time mentioned in the summons. As discussed in the previous chapter, such appearance
may be personally by the parties or it may be through recognized agent or pleader. Even rule 1 of Order
IX provides in similar terms, “On the day fixed in the summons for the defendant to appear and answer,
the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the
suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.

CONSEQUENCES OF NON APPEARANCE

Various rules of Order IX lay down consequences for non appearance of either or both of the parties to a
suit.

1. Dismissal of suit where defendant fails to appear due to non service of summons (Rule 2):
where defendant fails to appear owing to failure on the part of the plaintiff-
a. To pay the Court fees or postal charges for such service, or
b. To present as many copies of the plaint as there are number of defendants, as required by rule
9 of Order VII CPC

Court may make an order that the suit be dismissed.

Remedies (Rule 4): a. Plaintiff may bring a fresh suit (subject to the limitation) or

b. he may apply for an order to set aside the dismissal.

Provided plaintiff is able to satisfy the Court that there was sufficient cause for such failure as
mentioned in Rule 2. In such case, Court shall make an order setting aside the dismissal and shall
appoint a day for proceeding with the suit.

2. Dismissal of suit where neither party appears (Rule 3): when on the date fixed for hearing
of suit, neither party appears, Court may make an order that the suit be dismissed.

Remedies (Rule 4): a. Plaintiff may bring a fresh suit (subject to the limitation) or

b. he may apply for an order to set aside the dismissal.

Provided plaintiff is able to satisfy the Court that there was sufficient cause for such non
appearance. In such case, Court shall make an order setting aside the dismissal and shall appoint a
day for proceeding with the suit.

Thus, it can be seen that dismissal of a suit both under 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.

3. Dismissal of suit on account of plaintiff’s failure to apply for fresh summons (Rule 5):
where summons issued to a defendant or to one of several defendants are returned unserved and plaintiff
fails to apply for fresh summons within seven days 1 of the return, Court shall make an order that the suit
be dismissed as against such defendant.

Remedies: a. Court may extend the time for making application for issuing fresh summons if the plaintiff
satisfies the Court within the said period (seven days) that:

i. In spite of using his best endeavours, he failed to find the residence of the defendant who has
not been served, or
ii. Such defendant is avoiding service of process, or
iii. There is sufficient cause for extending the time.

b. Plaintiff may also bring a fresh suit (subject to the law of limitation).

1
Prior to Amendment Act of 1976, this time period was 3 months, which was reduced to one month by the
Amendment Act of 1976 and was further reduced to seven days by the Amendment Act of 1999.
In Shree Sanand Textile Industries Ltd. v. M/s. Naranji Peraj Transport Co.2, it was observed:

"The intention of the Legislature is to see that the plaintiff must be vigilant enough to effect service of
summons of his suit on the defendant and if after summons is returned unserved, he fails for a period of
one month to apply for a fresh summons, the consequences stipulated by Rule 5 shall follow. The
command of Rule 5 is that once the plaintiff has failed to apply for a fresh summons unserved, the suit
shall be dismissed."

The learned Judge of the Gujarat High Court referred to the Legislative history of the provisions of Order
IX, Rule 5 and pointed out that earlier the words occurring in the Rule were “may make an order”, but
they were replaced by a mandate upon the Court by the present words, “shall make an order”. It was
observed that the use of the word “shall” as contracted with the use of the word “may” is indicative of the
fact that the Legislature intends the provision to be obligatory or mandatory, mandating the Court to do
the positive act and the Court has no option but to dismiss the suit of such plaintiff.

In Balaji Parnuji Shande v. Ranjan Namdeorao Somkuwar 3, Plaintiff filed a suit for permanent
injunction in the year 1992. Summonses were served on Defendant No.1 but not on Defendant No.2 and
these summons were not returned unserved. After four years of issue of summons, defendant No. 1
moved an application under Order IX, Rule 5. However, the Court directed the plaintiffs to take steps for
serving defendant No. 2. However, in spite of the specific direction given by the Court, the plaintiffs did
not take any such steps. Defendant No. 1 moved a fresh application praying for dismissal of suit under
Order IX, Rule 5. The learned Judge, however, dismissed the application and observed that since the
summons already issued to defendant No. 2 was not returned, served or unserved, it would not be proper
to dismiss the suit. It is this order which is the subject-matter of this revision application.

Dismissing the revision application, HC held that no doubt provisions of Order IX Rule 5, being
mandatory, the Court has no option but to dismiss the suit in case of default. Since the provisions of Order
IX, Rule 5 are mandatory, the Court will have to strictly satisfy itself, before passing an order of dismissal
of the suit, that the plaintiff has committed the default as contemplated by the Rule. In the instant case, it
is material to note that the summons issued to defendant No. 2 was never returned unserved even till 12-
8-1996. It is true that the plaintiffs, without waiting for the same, could have taken steps at an earlier
stage for issue of fresh summons to defendant No. 2. However, they did not do so and remained silent for
more than four years. Despite this conduct on the part of the plaintiffs, it cannot be said that the condition
contemplated by Rule 5 is fulfilled. Since the original summons was not returned unserved, strictly
speaking, there was no question of the plaintiffs applying for issue of a fresh summons. The lapse
contemplated by Rule 5 is only after the summons is returned unserved and not before that.

4. Where only plaintiff appears and defendant does not appear (Rule 6): where on the date fixed for
hearing of suit, only plaintiff appears and defendant doesn’t, 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. However, where the Court has adjourned the hearing of the
suit ex-parte and the defendant, at or before such hearing, appears and assigns good cause for his previous
non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer
to the suit as if he had appeared on the day, fixed for his appearance.4

(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 future day to be fixed by the Court, and shall direct
notice of such day to be given to the defendant.

Ex Parte decree

2
AIR 1996 Guj 107.
3
1998(4) CiviLJ 842, (Bombay)(Nagpur Bench).
4
Order IX Rule 7.CPC.
If a defendant does not appear in court despite proper service of summons, the court may proceed to hear
the case and may pass an ex parte decree based on the evidence presented by the plaintiff.

In Sangram Singh v. Election Tribunal, Kotah5, appellant filed an election petition under Representation
of People Act, 1951. He appeared on the first and subsequent hearings at Kotah. But later on proceedings
were transferred to Udaipur. Appellant did not appear on the first three at Udaipur and the tribunal
proceeded ex parte. His counsel appeared on the fourth hearing but was not allowed to take any further
part in the proceedings because no good cause was shown for the earlier non-appearance and so the
tribunal refused to set aside its "ex parte order". The appellant thereupon filed a writ petition in the High
Court of Rajasthan and further proceedings before the Tribunal were stayed. The High Court rejected the
petition on the ground of conclusiveness of hearing of the Tribunal. Appellant preferred an appeal to the
Hon’ble SC.

Allowing the appeal and quashing the order of the Tribunal, SC interpreted the words “suit be heard ex
parte” appearing in rule 6 (1) (a) of Order IX, Hon’ble SC held that “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.”

“Then comes rule 7 which provides that if at an adjourned hearing the defendant appears and shows good
cause for his "previous non-appearance", he can be heard in answer to the suit "as if he had appeared on
the day fixed for his appearance". This cannot be read to mean that he cannot be allowed to appear at all if
he does not show good cause. All it means is that he cannot be relegated to the position he would have
occupied if he had appeared.”6

“If the defendant does not appear at the adjourned hearing (irrespective of whether or not he appeared at
the first hearing) Order XVII, rule 27 applies and the Court is given the widest possible discretion either
"to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as
it thinks fit.”8

Thus, the Tribunal was directed to proceed with the matter on the lines indicated by the Hon’ble SC.

In Maya Devi v Lalta Prasad9, SC has 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.

Remedies against an ex parte decree

A defendant against whom ex parte decree has been passed can avail following remedies against the ex
parte decree

1. Application for setting aside ex parte decree (Order IX rule 13)- Defendant can apply for
setting aside ex parte decree to the Court which passed the decree. Defendant has to satisfy the
court that:
A) Summons was not duly served, or

5
AIR 1955 SC 425.
6
Ibid.
7
Order XVII Rule 2- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail
to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or
make such other order as it thinks fit.

Explanation —Where the evidence or a substantial portion of the evidence of any party has already been recorded
and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its
discretion, proceed with the case as if such party were present.

8
Ibid.
9
(2015) 5 SCC 588.
 B) He was prevented by sufficient cause from appearing when the suit was called on for hearing.

A summons is not said to be duly served when all the modes prescribed for due service of summons
specified under Order V of CPC have not been exhausted by the plaintiff. Naturally, when the summons
is not duly served, defendant cannot be expected to attend to the hearing of the Court on the date
mentioned in the summons and thereby, no adverse order can be made against the defendant. However,
proviso 2 to rule 13 makes it clear that where the defendant had notice of date of hearing of the suit and
had sufficient time to appear and answer the plaintiff’s claim, a mere irregularity in the service of
summons shall not be a ground for setting aside ex parte decree.

Further, where the defendant succeeds in satisfying the Court that there was sufficient cause for his non
appearance on the date fixed for hearing of the suit, an ex parte decree passed against the defendant can
be set aside by the Court. Now, what amounts to a sufficient cause depends upon a number of
circumstances and no straight jacket formula can be laid down to apply to each and every case. Sufficient
cause generally implies no negligence and mala fide intention on the part of the defaulting party. In a
number of judicial decisions, Hon’ble apex Court has ruled in favour of liberal interpretation of the term
“Sufficient Cause” in the interest of justice.

In G.P Srivastva v R.K.Raizada10, on his failure to appear in the Court either personally or through his
Advocate, the suit for arrears of rent, ejectment and damages filed against the appellant was decreed ex-
parte. The application for setting aside the ex-parte decree filed in terms of Order 9 Rule 13 was
dismissed by the Trial Judge on account of the fact that reasons stated by the appellant i.e., being an
assistant engineer in Irrigation Department, his presence was necessary at the site of construction of
bridge and that on the date fixed for hearing, nephew of his counsel passed away in an accident were not
sufficient. The revision petition filed by the appellant was dismissed by the High Court on the ground that
the appellant had failed to establish any just or sufficient cause for his non appearance on the date fixed
when the ex-parte proceedings were initiated against him.

Allowing the appeal and setting aside the order of the High Court and of the Trial Court, SC made
following observations with respect to passing of ex parte decree:

1. If sufficient cause for non-appearance is shown, ex-parte order should be set aside. Past conduct of the
party should not be taken into consideration.

2. Court not to adopt hyper-technical approach. Where a party approaches the Court immediately within
the statutory time specified, the discretion is normally exercised in his favour, provided the absence was
not mala fide or intentional and the other side can be compensated by adequate costs. In instant case, ex-
parte order set aside subject to payment of cost of Rs. 5,000.

3. The words "was prevented by any sufficient cause from appearing" must be liberally construed to
enable the Court to do complete justice between the parties particularly when no negligence or inaction is
imputable to erring party.

4. The 'sufficient cause' from non-appearance refers to the date on which the absence was made a ground
for proceeding ex-parte and cannot be stretched to rely upon other circumstances anterior in time. If
'sufficient cause' is made out for non-appearance of the defendant on the date fixed for hearing when ex-
parte proceedings initiated against him, he cannot be penalised for his previous negligence which had
been overlooked and thereby condoned earlier.

Enatulla Basunia v. Jiban Mohan Roy11 is an appeal against an order of the Subordinate Judge rejecting
an application filed under Rule 13 to set aside an ex parte decree. As per the facts, on the day the hearing
of the case commenced both the parties appeared. The case then proceeded from day to day. Both of the
parties appeared, there was examination and cross examination of witnesses. On one particular date, when
cross examination of a witness was not finished, the suit stood adjourned to the next day when neither
defendant, nor the witness and the pleader for the defence appeared. The Subordinate Judge consequently
noted the case for the defence as closed and proceeded to hear the argument of the pleader for the

10
2000(2) SCALE 198. Similar observations have been made by SC in the case Savithri Amma v. Aratha Karthy,
AIR 1983 SC 318.
11
AIR 1914 Cal 360 (DB).
plaintiff. There was no argument for the defendants, and the Subordinate Judge delivered his judgment
decreeing the suit in plaintiff's favour.

The defendants made the application for setting aside the decree alleging that it had been passed ex parte.
The Subordinate Judge, held that he had no power to set aside the decree under Rule 13 of Order IX as
the decree had not been passed under rule 6 of Order IX and that the defendants' remedy lay in a review
or an appeal.

In this appeal it has been argued for the appellant that the decree was passed ex parte. As it is apparent
from the facts, the defendants appeared by their pleader who conducted the case for the defence up to the
stage when he failed to attend the hearing of the case. Thus, it cannot be said that the Subordinate Judge
proceeded under Rule 6 of Order IX, as Rule 6 comes into picture only when defendant fails to appear
after the summons have been duly served.

Setting aside the decision of Subordinate Judge and allowing the appeal, Calcutta High Court held that the
provisions of Order IX by themselves do not apply to a case in which the defendant has already appeared
in answer to the summons but has failed to appear at an adjourned hearing of the suit. For such a case the
procedure is laid down in Order XVII which deals with adjournments. Rule 2 of that Order lays down that
"where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear,
the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX , or
make such other order as it thinks fit;"

In the circumstances of the case, it is clear that on the default of the defendants, the Subordinate Judge
proceeded under Rule 2 of Order XVII to dispose of the suit in one of the modes directed in that behalf by
Order IX. Therefore, the appellant's application under Rule 13, Order IX, should have been entertained.
The High Court directed the Subordinate Judge to consider if the appellants make out sufficient cause for
the decree to be set aside.

Proviso 1 to Rule 13 clarifies that where the nature of the decree is such that it cannot be set aside as
against such defendant only (who has applied for setting aside), it may be set aside as against all or any of
other defendants also.

Thus, where A files a suit against B, C and D and it is proved that B was duly served with summons while
C and D were not. All of them fail to appear on the date fixed for hearing. Court proceeds ex parte.
Defendants apply for setting aside decree under rule 13 of Order IX. Here, decree may be set aside as
against C and D only as they were not duly served but not against B, but the nature of the suit is such that
an effective relief cannot be provided to the plaintiff unless decree is set aside as against all of them.
Therefore, applying proviso 1 to Rule 13, decree may be aside against all the defendants.

Note: an application for setting aside ex parte decree must be made within 30 days of passing of the
decree (Article 123, Limitation Act, 1963).

2. Appeal - An appeal from an original and appellate ex parte decree lies under Sections 96 and 100
CPC respectively.

Whether application under rule 13 to the same Court and appeal to the higher Court for setting aside ex
parte decree are concurrent remedies?

Explanation to Rule 13 of Order IX (inserted by the Amendment Act of 1976) states that where there has
been appeal against an ex parte decree 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 (Rule 13) for
setting aside the ex parte decree. The reason being that when the matter has been disposed of on merits by
the higher Court, lower Court’s jurisdiction to entertain an application on the same matter would be
barred. However, where the appeal has been disposed of as withdrawn, a subsequent application under
Rule 13 is maintainable.
In Rani Choudhury v. Lt. Col. Suraj Jit Choudury12, explaining the ambit of the said explanation to Rule
13, Hon’ble SC observed: “The CPC (Amendment) Act, 1976 was enacted with the avowed purpose of
abridging and simplifying the procedural law. 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.”

The purpose for introducing this Explanation was considered by the Hon'ble Supreme Court in the
judgment in P.Kiran Kumar v. A.S.Khadar.13 Their Lordships, after an elaborate consideration of the
purposes of the amendment, held that the legislative attempt in incorporating the Explanation under Order
IX Rule 13 is to confine the defendant to either one of the remedies made available to him and not both.
Their Lordships held that the 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 and that with the introduction of
the Explanation, no application to set aside the ex parte decree would be maintainable where the
defendant had filed an appeal and the appeal was disposed of on any ground, other than the ground that
the appeal has been withdrawn by the appellant.

Regarding the question of availing both the remedies, Hon’ble SC in Bhivchandra Shankar v. Balu
Gangaram14 observed as under:

“A conjoint reading of Order IX Rule 13 CPC and Section 96(2) CPC indicates that the defendant who
suffered an ex-parte decree has two remedies:- (i) either to file an application under Order IX Rule 13
CPC to set aside the ex-parte decree, or (ii) to file a regular appeal from the original decree to the first
appellate court and to challenge the ex-parte decree on merits.

The scope of both the provisions is entirely different. In an application filed under Order IX Rule 13 CPC,
the Court has to see whether the summons were duly served or not or whether the defendant was
prevented by any “sufficient cause” from appearing when the suit was called for hearing. If the Court is
satisfied that the defendant was not duly served or that he was prevented for “sufficient cause”, the court
may set aside the ex- parte decree and restore the suit to its original position. In the regular appeal filed
under Section 96(2) CPC, the appellate court has wide jurisdiction to go into the merits of the decree. The
scope of enquiry under two provisions is entirely different. Merely because the defendant pursued the
remedy under Order IX Rule 13 CPC, it does not prohibit the defendant from filing the appeal if his
application under Order IX Rule 13 CPC is dismissed. The right of appeal under Section 96(2) CPC is a
statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground
that the application filed by him under Order IX Rule 13 CPC has been dismissed.

In Babu Kesavan v. Prakasan15, appellants kept on pursuing their remedy under rule 13 of Order IX
choosing not to file an appeal against ex parte decree. Ultimately, when application was not allowed, they
filed appeal under section 96 CPC along with application to condone the delay of 1433 days. Kerala High
Court dismissed the appeal along with the application for condonation of delay and held that by making
an election of not filing an appeal within the time granted, the appellants should be deemed to be aware
that they are at the mercy of the Laws of Limitation and that the discretion of this Court in admitting an
appeal with delay would not be a matter of right as it would have been had they filed the appeal within the
period of limitation. This risk can be fully avoided if the defendant chooses to file the statutory appeal
within the period of limitation without waiting endlessly for the Order IX Rule 13 application to finally
conclude.

It may be noted that an ex parte decree cannot be set aside without issuing a notice to the opposite party
and without giving him an opportunity of being heard (Rule 14, Order IX).

3. Review: A person aggrieved by an ex parte decree can file a review petition under Order 47 read
with Section 114 CPC in the Court which passed the decree.
12
1982 (2) SCC 596.
13
AIR 2002 SC 2286.
14
2019 (6) SCC 387.
15
2018 (2) KLT 716.
 4. Revision: A revision petition lies to the High Court under Section 115 CPC against the decision
of the lower Court rejection an application filed under rule 13 of order IX to set aside ex parte
decree. It is important here to note that revision petiti0n lies not against an ex parte decree but
against an order of lower Court rejecting the application to set aside ex parte decree.

Can a Court use its inherent powers to set aside an ex parte decree?

In Arjun Singh v. Mohindra Kumar16, Hon’ble SC held that the inherent power of the Court cannot
override the express provisions of the law. In other words, if there are specific provisions of the Code
dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the
powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of
the Court cannot be invoked in order to cut across the powers conferred by the Code.

The provisions relating to setting aside ex parte decree have adequately provided for by rule 13 of Order
IX CPC. Therefore, no question of using inherent power by the Court arises in such cases.

5. Where defendant only appears/Dismissal in default – When the suit is called on for hearing,
only defendant appears and the plaintiff doesn’t appear:
A) Court shall dismiss the suit, or
B) Where the defendant admits the claim, Court shall pass a decree against the defendant upon
such admission, or
C) Where only a part of the claim has been admitted, Court shall pass a decree with respect to
the part so admitted and shall dismiss the suit with respect to the remainder.

A Full Bench of Bombay High Court in P.D. Shamdasani v. The Central Bank of India Ltd.17 held that,
“the question whether a suit or any other proceeding, which was dismissed for plaintiff's non-appearance,
should be restored or not is a matter for the discretion of the Court and depends upon the particular facts
of each case. It is not desirable to act on precedents in such cases. If a person, whose suit or any other
proceeding has been dismissed summarily for his non-appearance when the same was called on for
hearing, appears on the same day and produces some not unreasonable excuse for his absence, prima facie
the Court ought to exercise its discretion, in his favour. Of course the applicant has no absolute right to
ask the Court to waive its rules in his favour, but it is a good working rule that if he applies at once and
thereby shows that his failure to appear was not due to a desire to cause delay, but was bona fide, he
ought generally to be given the right to have his case restored on payment of costs. It is a very serious
matter to dismiss a man's suit or any other proceeding without hearing it, and that course ought not to be
adopted unless the Court is really satisfied that justice so requires.”

Remedies against dismissal in default:

Where a suit has been dismissed for default under rule 8, plaintiff may apply for an order to set the
dismissal aside. When the plaintiff 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.18

It is important to note here that a dismissal of suit, wholly or partly, under rule 8 bars the plaintiff from
bringing a fresh suit in respect of the same cause of action. Further, as dismissal in default is not a decree,
as stated expressly by the definition of Decree provided under Section 2 (2) of CPC, no appeal lies against
such order.

In Mayandi v. Pandarachamy19, SC has held that the decree against plaintiff by default bars fresh suit on
the same cause of action by his successor in title also.

Therefore, the only remedy against an order of dismissal in default is an application for setting aside such
order and no such order of setting aside shall be made by the Court unless notice of the application for
setting aside has been served on the opposite party.

6. Non attendance of one or more of several plaintiffs: where in a suit, number of plaintiffs is
more than one, and one or more of them appear and others do not appear, the Court may, at the
16
AIR 1964 SC 993.
17
AIR 1938 Bom 199.
18
Order IX Rule 9.
19
Civil Appeal no. 6424 of 2019, D/d 09.09.2019.
 instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all
the plaintiffs had appeared or make such order as it thinks fit.20

The phrase “make such order as it thinks fit” implies that Court may even dismiss the suit in default with
regard to non appearing plaintiffs. Thus, while rule 8 of Order IX applies to a situation where there is
single plaintiff and he fails to appear when the suit is called on for hearing, rule 10 , on the other hand
applies when the number of plaintiffs is more than one, some or one of them appear and others do not. In
such a case, if Court dismisses the suit in default for non appearing plaintiffs, the bar of rule 9 Order IX
will not apply as rule 9 uses the words “where a suit is wholly or partly dismissed under rule 8.” 21

7. Non attendance of one or more of several defendants: Where in a suit, number of defendants is
more than one, and one or more of them appear and others do not appear, the suit shall proceed,
and the Court shall, at the time of pronouncing judgment, make such order, as it thinks fit with
respect to the defendants who do not appear.22

To conclude it may be said that Order IX outlines the procedures for the appearance of parties, the
consequences of non-appearance, and the circumstances under which suits may be dismissed or heard in
absence of a party. It underscores the court's discretion in managing cases while balancing the rights of
the parties involved.

20
Order IX rule 10.
21
Mohammad Faruq v. State of U. P. Through Collector, Azamgarh (Allahabad), 1975 ALL LJ 496.
22
Order IX rule 11.