Appearance of parties and consequence of non-appearance

Appearance of parties and consequence of non-appearance

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.

2

[2. Dismissal of suit where summons not served in consequence of plaintiff's failure to pay

costs.—Where on the day so fixed it is found that summons has not been served upon the defendant in

consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable for

such service, or failure to present copies of the plaint 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.]

is called on for hearing, the court may make an order that the suit be 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

3

[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.

5. Dismissal of suit where plaintiff after summons returned unserved, fails for 4[seven days] to

apply for fresh summons. —5[(1) Where after a summons has been issued to the defendant, or to one of

several defendants, and returned unserved, the plaintiff fails, for a period of 4[seven days] from the date of

the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving

officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as

against such defendant, unless the plaintiff has within the said period satisfied the Court that—

1. Subs. by Act 22 of 2002, s. 9, for rules 9 and 10 (w.e.f. 1-7-2002).

2. Subs. by s. 10, ibid., for rule 2 (w.e.f. 1-7-2002).

3. Subs. by Act 104 of 1976 s. 59, for certain words (w.e.f. 1-2-1977).

4. Subs. by Act 46 of 1999, s. 19, for “one month” (w.e.f 1-7-2002).

5. Subs. by Act 24 of 1920 s. 2, for sub-rule (1).

*. Shall be applicable to commercial disputes of a specified value by Act 4 of 2016, s. 16 and the Sch. (w.e.f. 23-10-2015).

95

(a) he has failed after using his best endeavours to discover the residence of the defendant, who

has not been served, or

(b) such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time,

in which case the Court may extend the time for making such application for such period as it thinks fit.]

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

(1) Where the plaintiff appears and the defendant does

not appear when the suit is called on for hearing, then—

1

[(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.

(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.

7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for

previous non-appearance.—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.

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.

(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.

more plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may, at

the instance of the plaintiff or plaintiff’s appearing, permit the suit to proceed in the same way as if all the

plaintiff’s had appeared, or make such order as it thinks fit.

more defendants than one, and one or more of them appear, and the 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.

12. Consequence of non-attendance, without sufficient cause shown, of party ordered to appear

in person.—Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in

person, or show sufficient cause to the satisfaction of the court for failing so to appear, he shall be subject

to all provisions of the foregoing rules applicable to plaintiffs and defendants, respectively who do not

appear.

1. Subs. by Act 104 of 1976, s. 59, for cl. (a) (w.e.f 1-2-1977).

96

Setting aside Decrees ex parte

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:

1

[Provided further than 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.]

2

[Explanation.—Where there has been an appeal against a decree passed ex parte under this rule, and

the appeal has been disposed of an 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.]

any such application as aforesaid unless notice thereof has been served on the opposite party.