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General Rules in CPC

Updated: May 5

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The principles laid down in the Code of Civil Procedure revolve around a fundamental concept: to ensure that court proceedings do not unfairly disadvantage any party in their absence, whenever feasible.


Order 9 of the Code delineates the regulations concerning the appearance of parties in a suit and the repercussions of their failure to appear.


Additionally, it offers a recourse for overturning a dismissal order of the suit and nullifying an ex parte decree issued against a defendant.


Rule 1 mandates that the parties involved in the suit must personally attend the court or be represented by their legal representatives on the designated day mentioned in the summons for the defendant's appearance.


Rule 12 stipulates that if a plaintiff or defendant, who has been directed to appear in person, fails to do so without providing adequate justification for their absence, the court reserves the right to dismiss the suit if the absentee is the plaintiff, or proceed ex parte if the absentee is the defendant.


When Neither Party Appears


If neither the plaintiff nor the defendant is present when the suit is called for hearing, the court reserves the right to dismiss it.


Nonetheless, the dismissal of the suit in accordance with Rule 3 does not prevent the initiation of a fresh suit concerning the same cause of action.


The plaintiff also retains the option to petition for an order to overturn such dismissal. Should the court ascertain sufficient justification for the plaintiff's absence, it will issue an order to revoke the dismissal of the suit and schedule a new date for proceeding with the case.


When Only Plaintiff Appears


If the plaintiff is present but the defendant fails to appear, the plaintiff must demonstrate proof of summons served on the defendant.


Upon establishing proper service of summons, the court may proceed ex parte against the absent defendant and potentially grant a decree in favour of the plaintiff, provided the plaintiff substantiates their case.


However, this provision specifically applies to the initial hearing and doesn't automatically extend to subsequent ones.


Nevertheless, the defendant's absence doesn't absolve the court of its obligation to ensure justice. It is incumbent upon the court to verify the assertions in the plaint and assess the merits of the prayers sought.


In cases where there are multiple plaintiffs, and some are present while others are absent, the court may allow the suit to continue as if all plaintiffs were present or issue any appropriate orders it deems necessary.

 
 

When Only Defendant Appears


Rules 7-11 outline the procedures to be followed. If the defendant appears while the plaintiff does not, and the defendant does not admit the plaintiff's claim either wholly or partly, the court is directed to dismiss the suit (Rule 7).


However, Rule 8 states that if the defendant admits the plaintiff's claim, either in whole or in part, the court will pass a decree against the defendant based on such admission and dismiss the suit regarding the remaining claim.


Rule 8 specifically applies to cases where there is only one plaintiff who is absent or where there are multiple plaintiffs and all are absent. Conversely, Rule 10 applies when there are more plaintiffs than one, and one or more of them appear.


Dismissing the plaintiff's suit without affording him a hearing is a grave matter, to be undertaken only if the court is genuinely convinced that justice necessitates it.


However, the court lacks the authority to dismiss the suit if the plaintiff fails to appear due to death, as this rule pertains to defaulters, not deceased individuals.


Rule 9 bars the plaintiff from initiating a fresh suit on the same cause of action after dismissal.


Nevertheless, the plaintiff can seek an order to set aside the dismissal, and if the court is convinced of sufficient cause for non-appearance, it may annul the dismissal and set a new date for proceeding with the suit.


In determining whether a dismissed suit should be restored, the crucial consideration is whether the plaintiff genuinely intended to appear on the scheduled date.


If sufficient cause is demonstrated for the plaintiff's non-appearance, reopening is mandatory; however, when sufficient cause is lacking, it becomes discretionary.


The determination of what constitutes sufficient cause depends on the facts and circumstances of each case, and a liberal interpretation should be adopted to serve the cause of justice, ensuring restoration is not typically denied.


Before the court issues such an order, notice must be served to the opposing party.


When there are multiple defendants, and some appear while others do not, the suit proceeds, and the court may make appropriate orders regarding the absent defendants at the time of judgement. A decree may be contested by some defendants and proceed ex parte against the others.

 
 

If the court adjourns the hearing ex parte and the defendant appears before or during such hearing, providing valid reasons for prior non-appearance, the court may hear the defendant on terms it deems fit, including costs.


In such cases, the defendant may have the earlier proceedings recalled and the suit heard in their presence.


However, if the defendant fails to show good cause, they are not penalised in terms of being excluded from further proceedings; they simply cannot revert to their position at the start of the trial.


The underlying principle is that until the suit is conclusively decided, the defendant retains the right to defend the suit, and this rule should be liberally construed.



When Summons is Not Served


In situations where summons is not served: Rules 2 and 5 govern the proceedings.


It's a fundamental principle of procedural law that every party must be afforded a fair and reasonable opportunity to present their case. This necessitates being informed of any legal proceedings initiated against them.


Therefore, the service of summons on the defendant is a prerequisite for a fair trial. If the summons is not served or does not afford the defendant sufficient time to prepare and present their case effectively, no decree can be issued against them.


Rule 2 of Order 9 stipulates that if the summons is not served due to the plaintiff's failure to pay costs for service or to provide copies of the plaint, the court may dismiss the suit.


However, if the defendant appears in person or through an authorised agent on the designated day, despite the plaintiff's failure, no such order of dismissal can be passed.


Even if the suit is dismissed under Rule 2, the plaintiff retains the right to file a fresh suit regarding the same cause of action or apply to set aside the dismissal.


If the court is convinced of sufficient cause for the plaintiff's failure, it will set aside the dismissal order and schedule a new trial.


If the plaintiff fails to request a fresh summons within seven days after the original summons is returned unserved, the court may dismiss the suit against the unserved defendant(s).


However, if the plaintiff can demonstrate either diligent efforts to locate the unserved defendant or valid reasons for the delay, such as the defendant avoiding service, the court may extend the time period as it deems appropriate.


If the plaintiff's suit is dismissed within the limitation period, they retain the right to file a fresh suit.


If it's not proven that the summons was duly served on the defendant, the court will order a fresh summons to be issued and served.


Alternatively, if the summons was served but didn't afford the defendant sufficient time to appear and respond on the designated day, the court will postpone the hearing to a future date and notify the defendant accordingly.


In cases where the summons is not served or not served in time due to the plaintiff's default, the court will order the plaintiff to bear the costs incurred due to the postponement.

 
 



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