Appearance and non-appearance of parties, ex parte decrees and the hearing of the suit

1. Appearance: the starting rule

Order IX rule 1 requires the parties to attend on the day fixed in the summons for the defendant to appear and answer, in person or by pleader, and the suit is then heard unless the court adjourns it. Section 27 and Order V deal with how the defendant is summoned; Order IX deals with what happens on the day. Two preliminary dismissals come first:

• Rule 2. If the summons was not served because the plaintiff did not pay the court-fee or postal charges, or did not file copies of the plaint under Order VII rule 9, the court may dismiss the suit. It will not do so if the defendant attends anyway.
• Rule 5. If the summons comes back unserved and the plaintiff does not apply for fresh summons within seven days of the return, the suit is dismissed against that defendant, unless he shows that he tried his best to find the defendant, that the defendant is avoiding service, or other sufficient cause. A fresh suit may be brought, subject to limitation.

2. Neither party appears (rules 3 and 4)

The court may dismiss the suit (rule 3). The plaintiff then has two options under rule 4: bring a fresh suit, subject to the law of limitation, or apply to set the dismissal aside by showing sufficient cause for his non-appearance (or for the failure under rule 2). The fresh-suit option exists because nobody has been heard; no decision on merits has been made.

3. Only the plaintiff appears: the ex parte hearing (rules 6 and 7)

Rule 6(1) turns on service:

• summons duly served: the court may order that the suit be heard ex parte;
• summons not duly served: the court must issue a second summons;
• summons served but not in sufficient time: the hearing is postponed and notice of the new date given to the defendant.

Where the plaintiff's own default caused the defective service, he pays the costs of the postponement (rule 6(2)). An order to proceed ex parte is not a decree. If the defendant appears at or before the adjourned hearing and assigns good cause for his earlier absence, he may be heard in answer to the suit as if he had appeared on the first day, on terms as to costs (rule 7). In Sangram Singh v. Election Tribunal, Kotah, 1955 INSC 15, AIR 1955 SC 425, Bose J. held that an ex parte order does not shut the defendant out for the rest of the suit: he may come in at a later hearing and take part from that point, though he cannot undo what has already happened unless he shows good cause. The judgment also contains the oft-quoted line that a code of procedure is designed to facilitate justice and not to punish.

4. Only the defendant appears (rules 8 and 9)

The court must dismiss the suit, unless the defendant admits the claim or part of it, in which case a decree passes on the admission and the rest is dismissed (rule 8). The consequence is heavier than under rule 3: the plaintiff is precluded from bringing a fresh suit on the same cause of action (rule 9(1)). His only route back is an application to set aside the dismissal on showing sufficient cause, on notice to the other side (rule 9(2)). The limitation for it is thirty days from the dismissal (Article 122, Limitation Act). An order rejecting it is appealable under Order XLIII rule 1(c).

Rules 10 and 11 deal with several plaintiffs or defendants: the court may let the suit proceed at the instance of those plaintiffs who appear, and where some defendants are absent, the suit goes on and the court makes a suitable order about the absent ones at the time of judgment. Rule 12 applies the same consequences to a party who was ordered to appear in person and did not.

5. The ex parte decree and the remedies against it

An ex parte decree is a decree passed after hearing only the plaintiff, the defendant having been duly served and having failed to appear. It is a valid decree and executable like any other. The defendant has four possible remedies.

• Application under Order IX rule 13 to the court that passed the decree. He must show either that the summons was not duly served, or that he was prevented by sufficient cause from appearing. The court may set the decree aside on terms as to costs or payment into court. Two limits: a mere irregularity in service is no ground if the defendant had notice of the date and time to answer (second proviso), and no application lies where an appeal against the ex parte decree has been disposed of on any ground other than withdrawal (Explanation). Limitation is thirty days from the decree, or, where summons was not duly served, from the date of knowledge (Article 123). Notice to the other side is compulsory (rule 14). A rejection is appealable under Order XLIII rule 1(d).
• First appeal under section 96(2), which expressly allows an appeal from an original decree passed ex parte.
• Review under Order XLVII, on its narrow grounds.
• A suit to set the decree aside where it was obtained by fraud.

The relationship between the first two was settled by a three-Judge Bench in Bhanu Kumar Jain v. Archana Kumar, 2004 INSC 723, (2005) 1 SCC 787. Both remedies are available and may be pursued at the same time. But once the rule 13 application has been dismissed, the defendant cannot, in the appeal, again argue the same grounds of non-service or sufficient cause. In the appeal he may show that the decree is wrong on the plaintiff's own evidence. On what amounts to sufficient cause, the Court in Parimal v. Veena, 2011 INSC 110, (2011) 3 SCC 545, said the expression must be read liberally where the party was not negligent or inactive, but the court cannot set aside a decree on a ground the party has not proved.

6. The hearing and examination of witnesses (Order XVIII)

• Right to begin (rule 1). The plaintiff begins, unless the defendant admits the facts alleged and contends that on a point of law or additional facts the plaintiff is not entitled to relief; then the defendant begins.
• Statement and evidence (rule 2). The party with the right to begin states his case and produces evidence; the other side then states its case and evidence, and the first party replies. Oral arguments may be followed by written arguments with leave.
• Party to appear first (rule 3A). A party who wishes to give evidence must do so before his other witnesses, unless the court permits otherwise for reasons recorded.
• Examination-in-chief on affidavit (rule 4). Since 2002, in every case the examination-in-chief is by affidavit, with copies supplied to the other side. Cross and re-examination take place in court or before a commissioner appointed by the court. The validity of this scheme was upheld in Salem Advocate Bar Association v. Union of India, 2005 INSC 324, (2005) 6 SCC 344.
• Recording evidence (rules 5 to 13). Evidence is taken down in the presence of the judge; the court may record remarks on the demeanour of a witness (rule 12).
• Inspection and recall (rules 17 and 18). The court may recall any witness at any stage and put questions to him, and may inspect any property or thing.

7. Problem

A sues B for recovery of money. B is served but is admitted to hospital on the date of hearing. The court proceeds ex parte and passes a decree. B learns of it three weeks later. Advise B.

Issue. Whether, and how, B can get the ex parte decree set aside.

Law. Order IX rule 13 allows the decree to be set aside if the defendant shows he was prevented by sufficient cause from appearing. Article 123 gives thirty days from the decree where summons was duly served. Section 96(2) allows an appeal from an ex parte decree, and Bhanu Kumar Jain permits both remedies to run together.

Application. Service was proper, so B cannot rely on non-service and the thirty days run from the date of the decree. Hospitalisation, proved by medical records, is a classic sufficient cause: he was not negligent. Three weeks have passed, so he is within time but must act at once. He should apply under rule 13 with an affidavit and the hospital papers, give notice to A (rule 14), and ask the court to stay execution in the meantime under its inherent power in section 151.

Conclusion. B should apply under Order IX rule 13 now. If it is rejected he may appeal under Order XLIII rule 1(d), and he may also file a first appeal against the decree under section 96(2) within the time allowed under Article 116. If thirty days pass, he must add a section 5 application for condonation of delay.

How this is examined

Two forms recur. The essay “Explain the consequences of appearance and non-appearance of parties in a suit” (January 2026) is answered rule by rule: rules 2 to 5, 6 and 7, 8 and 9, 10 to 12, and rule 13. “What is an ex parte decree? State the remedies available against it” (June 2025) and the short note “Ex parte decree” (August 2024) need section 5 above with Bhanu Kumar Jain and the limitation articles. A problem on a sick or absent defendant is answered as in section 7.