Order 9 – Appearance of Parties & Consequence of Non-Appearance
1. Consequence of Absence at Hearing (Rules 3, 6, & 8)
- Both Parties Absent (Rule 3): If neither the plaintiff nor the defendant appears when the suit is called for hearing, the court may dismiss the suit.
- Only Plaintiff Absent (Rule 8): If the defendant appears but the plaintiff does not, the court will dismiss the suit unless the defendant admits the plaintiff's claim (or a part of it). Court shall not dismiss the suit if the defendant appears before the court and admits the claim.
- Only Defendant Absent (Rule 6): If the plaintiff appears but the defendant does not despite the summons being duly served, the court may proceed ex-parte (hearing the case in the defendant's absence).
2. Plaintiff's Default in Service Costs (Rule 2 & Rule 6)
- Failure to Pay Costs: If a suit is called and it is found that summons was not served because the plaintiff failed to pay the court fee or postal charges, the suit may be dismissed by the court.
- Delayed Service (Rule 6(2)): Where the summons was not duly served or was not served in sufficient time due to the plaintiff's default, the court will adjourn the hearing and order the plaintiff to pay the costs caused by the postponement.
3. Multiple Plaintiffs & Remedies (Rules 4, 9, & 13)
- Multiple Plaintiffs (Rule 10): Where there are more plaintiffs than one, and only one or a few appear on the date of hearing, the court may proceed with the trial of the suit just as if all plaintiffs had appeared.
- Remedy for Rule 2 or 3 Dismissals (Rule 4): If a suit is dismissed because both parties were absent or due to failure to pay costs, the plaintiff has two options (Both A and B):
- 1. Bring a fresh suit (subject to limitation).
- 2. Apply for setting aside the dismissal order (restoration).
- Bar on Fresh Suit (Rule 9): If a suit is dismissed under Rule 8 (where the defendant appeared but the plaintiff did not), the plaintiff is strictly barred from bringing a fresh suit on the same cause of action. The only remedy is an application to set aside the dismissal under Order IX Rule 9.
- Remedy Against Ex-Parte Decree (Rule 13): Where an ex-parte decree is passed against a defendant, he may apply to the court that passed it for an order to set it aside.