Appearance and Consequences of Non-appearance

In one line

Order IX answers one question in every combination: who turned up, and what the court does about the ones who did not.

There are only four combinations, and the whole Order is built on them. Both parties appear, and the suit proceeds normally. Neither appears. Only the plaintiff appears. Only the defendant appears. Learn the four and the Order becomes simple.

Why the Code deals with this so carefully

Non-appearance is not always defiance. A defendant may never have been served. A summons may have arrived too late to be answered. A plaintiff may be ill on the day. The Code therefore refuses to treat absence as a decision on the merits, and every consequence in this Order is reversible on proof of sufficient cause.

That is the thread running through it: a party who does not appear loses the day, not the case. What the Code will not do is let an absent party ambush the other side later, so each remedy comes with conditions and with notice.

The four combinations

Two words in that table decide most problems. Against neither party, the Code says may. Against a plaintiff who fails to appear, it says shall.

Only the plaintiff appears: Rule 6

Rule 6(1) provides that where the plaintiff appears and the defendant does not when the suit is called on for hearing:

(a) Where the summons was duly served, the Court may make an order that the suit be heard ex parte.

(b) Where it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served.

(c) Where the summons was served but not in sufficient time to enable the defendant to appear and answer on the day fixed, the Court shall postpone the hearing to a future day and direct notice of that day to be given to the defendant.

Rule 6(2): where it was the plaintiff's own default that the summons was not duly served or not served in time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.

The structure is worth noticing. An ex parte hearing is available only in case (a). Proof of due service is the gateway, and the burden of it is on the plaintiff. In cases (b) and (c) the court does not proceed at all; it tries again.