ORDER IX – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

ORDER IX –APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE (THE FIRST SCHEDULE)

 

1[2. Dismissal of suit where summons not served in consequence of the plaintiffs failure to pay cost

 

Where on the day so fixed it is found that the 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.]

 

1. Rule 2 was substituted by Act No. 46 of 1999. section 19 and now again substituted by Act No. 22 of 2002. Section 10(w.e.f. 1-7-2002).

 

3. Where neither party appears, suit to be dismissed

 

Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

 

4. Plaintiff may bring fresh suit or Court may restore suit to file.

 

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 for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for 1[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.

 

HIGH COURT AMENDMENTS

 

Delhi.

Same as in Gujarat.

 

Gujarat.-

In Order IX, renumber rule 4 as sub-rule (1) thereof and insert the following sub-rule, namely:-

 

“(2) The provisions of section 5 of Indian Limitation Act, 1908 (9 of 1908), shall apply to applications under this rule.”

 

 

Himachal Pradesh.-

Same as in Gujarat.

 

Madhya Pradesh.-

Same as in Gujarat.

 

Orissa.-

In Order IX, in rule 4, insert the following proviso, namely:-

 

“Provided that in cases where the defendant had entered into contract by filing his defence, no suit shall be restored without notice to him.” (w.e.f 14-5-1984)

 

Punjab.-

Same as in Gujarat.

 

1. Ins. by Art No. 104 of 1976 (w.e.f. 1-2-1977).

 

5. Dismissal of suit where plaintiff after summons returned unserved, fails for one month to apply for fresh summons

 

2[(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 periods of 1[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-

 

(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.

 

HIGH COURT AMENDMENTS

 

Bombay.-

In Order IX, in rule 5, for sub-rule (1), substitute the following sub-rule, namely:-

 

“(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 two months from the next hearing of the suit to apply for issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff within the said period satisfied the Court that-

 

(a) he has failed, after using his best endeavour 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 think fit.”

 

[Vide Maharashtra Notification No. P.O. 102/77, dated 31-12-1987.]

 

 

Gujarat-

Same as in Bombay.

 

Kerala.-

In Order IX, in rule 5,-

 

(i) for the marginal heading, substitute the following marginal heading-

“Dismissal of suit where plaintiff fails to apply for steps”.

 

(ii) in sub-rule (i), for the words “from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers”, substitute the words “from the next hearing of the suit or from the notice regarding the non-service of summons given by the Court to the plaintiff or counsel”.

 

Orissa.-

In Order IX, for rule 5, substitute the following rule, namely:-

 

“5. Dismissal of suit where plaintiff, after summons returned unserved, fails to file necessary requisites for fresh summons.-

 

(1) Where after summons has been issued to the defendant, or to one of several defendants and returned unserved, the plaintiff fails to file necessary requisites for a fresh summons, within the period fixed by the Court, it shall make an order that the suit be dismissed as against such defendant, and

 

(2) In such a case, the plaintiff may (subject to the law of limitation) bring a fresh suit.” (w.e.f. 3-5-1968)

 

1. Subs. by Act 104 of 1976, sec. 59, for “three months” (w.e.f. 1-2-1977) and again subs. by Act No. 46 of 1999, section 19 (w.e.f. 1-7-2002) for one months”.

 

2. Subs. by Act 24 of 1920, sec. 2, sub-rule (1)

 

6. Procedure when only plaintiff appears

 

(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 pane.]

 

(b) When summons not duly served-if it is not proved that the summons was duly serve, 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.

 

(2) Where it is owing to the plaintiffs’ 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.

 

HIGH COURT AMENDMENT

 

Patna.-

In Order IX, in rule 6, in sub-rule (1), in clause (c), omit the words “and shall direct notice of such day to be given to the defendant” and substitute a full stop for the comma after the word “Court”, (w.e.f. 6-5-1946)

 

1. Subs, by Act No. 104 of 1976 for clause (a) (w.e.f 1-2- 1977).

 

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.

 

HIGH COURT AMENDMENT

 

Rajasthan.-

In Order IX, for rule 7, substitute the following rule, namely:-

 

“7. Where the Court has adjourned the hearing of the suit after making an order that it be heard ex parte and the defendant at or before such hearing appears and assigns good cause for his previous non-appearance, the Court may upon such terms as it directs as to costs or otherwise, set aside the order for the hearing of the suit ex parte and hear the defendant in answer to the suit as if he had appeared on the day fixed for his appearance.”

 

[Vide Notification No. 13/SRO, dated 30th June 1956.]

 

8. Procedure where defendant only appears

 

Where the defendant appears and the plaintiff does 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.

 

9. Decree against plaintiff by default bars fresh suit

 

(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 suit.

 

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

 

HIGH COURT AMENDMENTS

 

Calcutta.-

In Order IX, in rule 9,-

 

(i) after sub-rule (1), insert the following sub-rule, namely:-

 

“(2) The plaintiff shall, for service on the opposite parties, present along with his application under this rule either-

 

(i) as many copies thereof on plain paper as there are opposite parties, or

(ii) if the Court by reason of the length of the application or the number of opposite parties or for any other sufficient reason grants permission in this behalf, a like number of concise statements.”

 

(ii) renumber sub-rule (2) as sub-rule (3).

 

(iii) in sub-rule (3) as so renumbered, after the words “notice of application” insert the words “with a copy thereof (or concise statement) as the case may be”.

 

Delhi.-

Same as in Punjab.

 

Gauhati.

Same as in Calcutta.

 

Himachal Pradesh.-

Same as in Punjab.

 

Punjab.-

In Order IX, in rule 9, in sub-rule (1), insert the following proviso, namely:-

“Provided that the plaintiff shall not be precluded from bringing another suit for redemption of a mortgage, although a former suit may have been dismissed for default.”

 

[Vide Notification No. 2212-G, dated 12th May, 1909.1

 

10. Procedure in case of non-attendance of one or more of several plaintiffs

 

Where there are 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 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.

 

11. Procedure in case of non-attendance of one or more of several defendants

 

Where there are 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 the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively who do no appear.

 

Setting aside decrees ex parte

 

13. Setting aside decree ex parte against defendant

 

In any case in which a decree is passed 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 that 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 exparte under this rule, 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 for setting aside that ex parte decree.]

 

HIGH COURT AMENDMENTS

 

Allahabad.-

In Order IX, in rule 13, after second proviso, insert the following proviso, namely:-

 

“Provided also that no such decree shall be set aside merely on the ground of irregularity in the service of summons if the Court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff’s claim.”

 

Andhra Pradesh.-

Same as in Madras.

 

Bombay.-

In Order IX, for rule 13, substitute the following rule, namely:-

 

“13. Setting aside decree ex parte against defendant.-

In any case in which a decree is passed 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 the was sufficient cause for his failure to appear 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:

 

Provided also that no such decree shall be set aside merely on the ground of irregularity of service of summons, if the Court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time it enable him to appear and answer the plaintiff’s claim.

 

Explanation I.-Where a summons has been served under Order V, rule 15, 01, adult male member having an interest adverse to that of the defendant in the subject, matter of the suit, it shall not be deemed to have been duly served within the meaning of this rule.

 

Explanation II.-Where there has been an appeal against a decree passed ex party under this rule, 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 for setting aside that ex parte decree.” (w.e.f. 1-10-1983)

 

Calcutta.-

 

In Order IX, renumber rule 13 as sub-rule (1) thereof and insert the following sub-rule, namely:-

 

“(2) The defendant shall, for service on the opposite party, present along with his application under this rule either-

 

(i) as many copies thereof of plain paper as there are opposite parties, or

(ii) in the Court by reason of the length of the application or the number of opposite parties or for any other sufficient reason grants permission in this behalf, a like number of concise statements.”

 

[Vide Notification No. 3316-G, dated 3rd
February, 1933.]

 

Delhi.-

Same as in Madhya Pradesh.

 

Gauhati.-

Same as in Calcutta.

 

Gujrat.-

Same as in Madhya Pradesh.

 

Himachal Pradesh.-

Same as in Madhya Pradesh.

 

Kerala.-

In Order IX,-

 

(i) renumber rule 13 as sub-rule (1) thereof;

 

(ii) at the end of the existing proviso insert the words “after notice to them”

;

(iii) after the existing proviso so amended, insert a further proviso as in Madras;

 

(iv) after sub-rule (1) as so renumbered, insert sub-rule (2) as in Madras, (w.e.f. 9-6-1959).

 

[Ed.-This amendment relates to rule 13 prior to its amendment by Central Act 104 of 1976, sec. 59 (w.e.f. 1-2-1977).]

 

Madhya Pradesh.-

 

In Order IX:-

(a) renumber rule 13 as sub-rule (1) thereof;

 

(b) in sub-rule (1) as so renumbered, substitute the words “there was sufficient cause for his failure to appearing” for the words “he was prevented by any sufficient cause from appearing”.

 

(c) in sub-rule (1) as so renumbered, second proviso and Explanations are same as in Bombay;

 

(d) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-

 

“(2) The provisions of section 5 of the Indian Limitation Act, 1908 (9 of 1908), shall apply to applications under sub-rule (1).”

 

Madras.-

 

In Order IX,-

 

(a) renumber rule 13 as sub-rule (1) thereof;

 

(b) same as in Madhya Pradesh (b).

 

Orissa.-

In Order IX-

(a) renumber rule 13 as sub-rule (1) thereof;

 

(b) same as in Madhya Pradesh (b);

 

(c) in sub-rule (1) as so renumbered, renumber Explanation as Explanation I and insert the following Explanation, namely:-

 

“Explanation II.-A summons served under Order V, rule 15 on an adult male member having an interest adverse to that of the defendant in the subject-matter of the suit shall not be deemed to have been duly served within the meaning of the rule.”

 

[Vide Notification No. 24-X-7-52, dated 14th May, 1954.]

 

[Ed.-These amendments relate to rule 13 prior to its amendment by Central Act 104 of 1976, sec. 59 (w.e.f. 1-2-1977).]

 

1. Added by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

14. No decree to be set aside without notice to opposite party

 

No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.

 

HIGH COURT AMENDMENTS

 

Bombay.-

In Order IX, after rule 14, insert the following rule, namely-

“15. Application of the provisions of this order to Appeals.-In the application of this Order to appeals, so far as may be, the word ‘plaintiff shall be held to include an appellant, the word ‘defendant’ a respondent, and the word ‘suit’, an “appeal.” {w.e.f. 1-10-1983)

 

Calcutta.-

In Order IX, in rule 14, substitute the words “together with a copy thereof (or concise statement as the case may be) “for the word “thereof”.

 

[Vide Notification No. 3516-G, dated 3rd February, 1933.]

 

Gauhati.-

Same as in Calcutta.

 

Gujarat-

Same as in Bombay.

 

Bombay.-

In Order IX, after rule 14, insert the following rule, namely-

 

“R.15. Application of the provisions of this Order to Appeals:-In the application of this Order to appeals, so far as may be, the word ‘plaintiff shall be held to include an appellant, the word ‘defendant’, a respondent, and the word ‘suit’ and ‘appeal’.” (w.e.f. 1-10-1983)

 

 

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