Appearance and Consequences of Non-appearance

Only the defendant appears: Rule 8

Rule 8 provides that where the defendant appears and the plaintiff does not, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part of it, in which case the Court shall pass a decree against the defendant upon that admission, and where only part is admitted, shall dismiss the suit as to the remainder.

The exception is neat and often missed: a defendant who turns up and admits the claim gets a decree passed against himself even though the plaintiff never appeared. The court does not dismiss a claim the defendant accepts.

The consequence that catches people: Rule 9

Rule 9(1) provides that where a suit is wholly or partly dismissed under Rule 8, the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action. But he may apply to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance, the Court shall set the dismissal aside on such terms as to costs as it thinks fit and appoint a day for proceeding with the suit.

Rule 9(2): no such order shall be made unless notice of the application has been served on the opposite party.

This is where Order IX meets the definitions. A dismissal for default is expressly excluded from the definition of a decree by section 2(2), so there is nothing to appeal. The plaintiff's only route is the application under Rule 9, and if he does not take it, Rule 9(1) bars a fresh suit on the same cause of action. See [Definitions].

Distinguish this bar from res judicata: it is not that the matter was decided, because nothing was decided. It is a separate statutory preclusion attached to the plaintiff's own absence. See [Res Judicata], condition five.

Neither party appears, and the service defaults: Rules 2 to 5

Rule 3: where neither party appears when the suit is called on, the Court may dismiss it.

Rule 4: 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 to set the dismissal aside, and on proof of sufficient cause the Court shall set it aside and appoint a day for proceeding.

Compare that with Rule 9 and the difference is sharp. After a Rule 3 dismissal a fresh suit is expressly allowed; after a Rule 8 dismissal it is barred. The reason is that a Rule 8 dismissal happens when the defendant did attend and the plaintiff did not, so the defendant's wasted attendance is the thing being protected.

Rule 2 allows dismissal where the summons was not served because the plaintiff failed to pay the court fee or postal charges, or to present copies of the plaint under Order VII Rule 9, with a proviso that no such order shall be made if the defendant nevertheless attends.

Rule 5 deals with a summons returned unserved: if the plaintiff fails for seven days from the return to apply for a fresh summons, the Court shall dismiss the suit as against that defendant, unless the plaintiff satisfies the Court that he failed despite his best endeavours to discover the defendant's residence, or that the defendant is avoiding service, or that there is other sufficient cause.

Setting aside an ex parte decree: Rule 13

Rule 13 provides that where a decree is passed ex parte against a defendant, he may apply to the Court which passed it to set it aside. If he satisfies the Court either that the summons was not duly served, or that he was prevented by sufficient cause from appearing, the Court shall set the decree aside as against him, on such terms as to costs, payment into court or otherwise as it thinks fit, and appoint a day for proceeding with the suit.

Three qualifications follow, and each is examinable.

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

Second proviso: no Court shall set aside an ex parte decree merely on the ground of 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. So the question is substance, not form: did he actually know in time.

Explanation: where there has been an appeal against the ex parte decree and the appeal has been disposed of on any ground other than the appellant's withdrawal of it, no application lies under Rule 13. A defendant must therefore choose his route, because appealing and losing shuts this door.

Rule 9 against Rule 13

These are the two remedies and students mix them constantly.

A worked example

Sunil sues Tara. The summons is issued and the suit is called on for hearing.

Tara does not appear and the summons was duly served. Rule 6(1)(a): the court may order the suit to be heard ex parte. If it does and a decree follows, Tara's remedy is Rule 13.

Tara does not appear and service is not proved. Rule 6(1)(b): no ex parte hearing. The court shall direct a second summons.

Tara was served, but only the evening before. Rule 6(1)(c): the hearing is postponed and notice of the new date given to her. If the delay was Sunil's fault, Rule 6(2) makes him pay the costs of the postponement.

Sunil does not appear and Tara does. Rule 8: the suit shall be dismissed. But if Tara says she admits owing half the sum, the court passes a decree against her on that admission and dismisses the rest.

Sunil then wants to sue again on the same claim. Rule 9(1) bars a fresh suit. His only route is an application to set the dismissal aside on sufficient cause, with notice to Tara under Rule 9(2). He cannot appeal, because a dismissal for default is not a decree under section 2(2).

An ex parte decree is passed against Tara and she says the summons went to her old address. Rule 13 applies. But if the court is satisfied she in fact had notice of the hearing date and time to answer, the second proviso stops her relying on the irregularity in service.

Tara instead appeals the ex parte decree and the appeal is dismissed on the merits. The Explanation to Rule 13 now bars an application to set the decree aside. Had she withdrawn the appeal instead, the door would still be open.

What it does not mean

Non-appearance is not a decision on the merits. Everything in this Order is reversible on sufficient cause.

A dismissal for default is not a decree, by section 2(2), so it is not appealable. The remedy is an application.

Rule 9's bar is not res judicata. Nothing was decided; it is a separate statutory preclusion.

A Rule 3 dismissal does not bar a fresh suit. Rule 4 expressly allows one, subject to limitation. Only a Rule 8 dismissal attracts the Rule 9 bar.

An irregularity in service does not automatically set aside an ex parte decree. The second proviso to Rule 13 asks whether the defendant in fact had notice and time.

Quick revision

Four combinations: neither appears, Rule 3, suit may be dismissed; only the plaintiff, Rule 6; only the defendant, Rule 8, suit shall be dismissed unless he admits the claim.

Rule 6: ex parte only where due service is proved, (a); second summons where service is not proved, (b); postponement where served too late, (c); costs against the plaintiff for his own default, (2).

Rule 8: dismissal, unless the defendant admits the claim, in which case a decree passes against him on the admission.

Rule 9: after a Rule 8 dismissal the plaintiff is barred from a fresh suit on the same cause of action; his remedy is an application on sufficient cause, with notice to the other side. There is no appeal, because section 2(2) excludes a dismissal for default from the definition of a decree.

Rule 4: after a Rule 2 or Rule 3 dismissal a fresh suit is allowed, subject to limitation, or the dismissal may be set aside.

Rule 5: seven days to apply for a fresh summons after an unserved return.

Rule 13: an ex parte decree is set aside where the summons was not duly served or the defendant was prevented by sufficient cause. Provisos: it may be set aside as against other defendants where inseparable; and not merely for an irregularity in service where the defendant had notice and time. Explanation: no application where an appeal against the decree has been disposed of otherwise than by withdrawal.

Test yourself

1. What happens if neither party appears? Under Order IX Rule 3 the court may make an order dismissing the suit, and under Rule 4 the plaintiff may then bring a fresh suit subject to limitation, or apply to set the dismissal aside on proof of sufficient cause.

2. The defendant does not appear. Can the court hear the suit ex parte? Only if it is proved that the summons was duly served, under Rule 6(1)(a), and even then the power is discretionary. If service is not proved the court shall direct a second summons, and if the summons was served too late the court shall postpone the hearing and give notice of the new date.

3. The plaintiff does not appear and the defendant does. What is the consequence? Under Rule 8 the court shall dismiss the suit, unless the defendant admits the claim or part of it, in which case a decree is passed against him on the admission and the suit is dismissed as to the remainder.

4. Can that plaintiff sue again on the same cause of action? No. Rule 9(1) precludes a fresh suit on the same cause of action. He may apply to set the dismissal aside on satisfying the court that there was sufficient cause for his non-appearance, and no order may be made without notice to the opposite party.

5. On what grounds may an ex parte decree be set aside? Under Rule 13, on the defendant satisfying the court either that the summons was not duly served, or that he was prevented by sufficient cause from appearing when the suit was called on for hearing.

6. Is an irregularity in the service of summons enough to set aside an ex parte decree? No. The second proviso to Rule 13 provides that no court shall set aside an ex parte decree merely on that ground if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the claim.

7. The defendant appealed the ex parte decree and the appeal was dismissed. Can he now apply under Rule 13? No. The Explanation to Rule 13 bars an application where an appeal against the ex parte decree has been disposed of on any ground other than the appellant's withdrawal of the appeal.