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Report No. 54

Chapter 9

Appearance of Parties and Consequences of Non-Appearance

Introductory

9.1. Order 9 lays down the rules of procedure applicable to various situations concerned with the appearance of parties, namely, cases where both parties attend; where the summons has not been served in consequence of the plaintiff's failure to pay the fees for serving;• when neither party appears; when the plaintiff only appears; and when the defendant only appears. Failure to appear attracts certain consequences. Broadly speaking, from the point of view of the plaintiff, the most important is the provision which makes dismissal of the suit for default of the plaintiff mandatory; and, from the context of the defendant, the most important is the provision authorising the court to proceed ex parte, if the defendant does not appear.

If the defendant does not file a written statement, certain action can be taken against him under rule 10,-a rule which appears to have caused a considerable amount of uncertainty, owing to its somewhat ambiguous wording. Since non¬appearance of a party may be involuntary or otherwise for sufficient cause, there have to be provisions for setting aside dismissal of the suit or ex parte order, as the case may be.

Order 9, rule 5(1)

9.2. Order 9, rule 5(1) provides that where a plaintiff fails to apply for a fresh summons (after the summons on the defendant is returned unserved), the Court shall dismiss the suit (except in certain cases). The period prescribed for the application for a fresh summons is three months under the present rule. The original period was for one year, but it was changed to three months later1. The period has been changed into two months by local Amendments by the High Courts of Bombay and Gujarat and one month in Kerala. The proposed amendment in the earlier Report2 reduced it to two-months. We think that it should be reduced to one month, in order to expedite progress of the case.

1. Code of Civil Procedure Amendment Act (24 of 1920).

2. 27th Report, note on Order 9, rule 5(i).

Recommendation

9.3. Accordingly, we recommend that Order 9, rule 5(1), should be revised as follows:-

"(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 one month 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 defendants, 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."

Order 9, rule 6 and Order 9, rule 7

9.4. In the earlier Report1, two points were considered with reference to Order 9, rule 6.

1. 27th Report, note on Order 9, rule 6.

9.5. The first question was, whether the court should have power to pass a decree, if it thinks fit, on the basis of a pleading without formal evidence, where the case proceeds ex parte. As pleadings are not required to be on oath1, it was considered unnecessary to make such a change.

1. Order 6, rule 15.

9.6. We are, however, of the view that such a provision would be useful. Having regard to the paramount need to reduce delay, it is, in our view, justified even in the absence of oath.

9.7. Secondly, the previous Commission noted that it had been held by the Supreme1-2 Court, that even when the defendant against whom a case has proceeded ex parte does not assign good cause for his previous non-appearance, he has a right to participate from the stage at which he appears. The decision of Wallace, J. in a Madras case3 on the subject was approved by the Supreme Court. The under mentioned decisions4 were mentioned by the previous Commission as illustrating the application of the rule enunciated by the Supreme Court.

1. Sangram Singh v. Election Tribunal, Kotah, (1955) 2 SCR 1: AIR 1955 SC 425 (431), para. 28.

2. This point really concerns Order 9, rule 7.

3. Venkatasubbiah v. Lakshmi, AIR 1925 Mad 1274.

4. (a) Bindu Prasad v. United Bank, AIR 1959 Pat 152.

(b) Mahant Ramji Das v. Bhupinder Singh, AIR 1962 Punj 443.

(c) Kumara v. Thomas, AIR 1961 Ker 287.

9.8. The Commission considered it unnecessary to codify the proposition laid down by the Supreme Court.

9.9. We have considered the matter, and are of the view that what the Supreme Court laid down should be codified. We appreciate the difficulty of the subject, and the desirability of balancing considerations of justice (on the one hand) against the need for expedition (on the other hand). But, in this case, there can be no other alternative.

9.10. At the same time, while inserting the rule that the defendant can join from the stage at which he appears, a clarification on one point would be desirable, namely, that past stages of the trial should not be re-opened. If the defendant, for example, has not filed a written statement, and the case has proceeded almost to the stage of judgment, the defendant cannot insist that he should be allowed to file it. It should, therefore, be ensured that the amended rule will not affect Order 8, rule 5 and Order 8, rule 10.



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