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CPC: Appearance|Ex-parte decrees|First Hearing and Issues:

Order 9 of the First Schedule of the Code of Civil Procedure Code 1908 (CPC) enacts the law concerning the appearance of parties in a civil suit and, the consequences of non-appearance. It also deals with the setting aside of a court order of dismissal of the suit and the award of an ex-parte decree against the defendant.

Appearance/Non-appearance of parties:

A courtroom where the parties appear.

Rule 1 requires the parties to attend the court in person or by their pleaders on the date fixed by the summons for the defendant to appear. When neither party appears, it is sufficient grounds for disposal under Rule 3, which shall not be appealable.

However, under Rule 4, it is clearly stated that the mere dismissal of the suit for default of parties under Rule 3 does not bar a new suit in respect of the same cause of action. The plaintiff may also apply for setting aside the dismissal provided he can show sufficient cause.

When only the plaintiff appears- Rule 6 & 10:

When the plaintiff appears but the defendant does not, the former has to prove service of summons on the defendant. If proved, the court may proceed ex-parte and may pass a decree in favour of the plaintiff (provided he can prove his case).

In Sangram Singh v. Election Tribunal (1955), it was held that the aforementioned provisions are only applicable to the first hearing and not subsequent hearings.

When only the defendant appears- Rule 7, 8, 9 & 11:

On the adjourned date, if the defendant appears (and the plaintiff doesn’t) or if he can furnish sufficient cause for the previous non-appearance then the court may hear him. If sufficient cause is shown, reopening the suit becomes mandatory and, if not, it becomes discretionary on the part of the court (as held in Motichand v. Ant Ram)

If the defendant does not admit the plaintiff’s claim wholly or partly then, the court shall pass an order for dismissal of the suit.

Under Arjun Singh v. Mohinder Kumar, the court laid down that the provisions against non-appearance of the plaintiff without sufficient cause are directed at ensuring the orderly conduct of proceedings by penalising improper dilatoriness calculated merely to prolong litigation.

However, under Rule 8, if the defendant admits a part of the claim, the court may pass a decree for that and dismiss the rest of the claim. Rule 9 further provides that the plaintiff afterwards, cannot file for the same cause of action. However, he can apply for an order to set aside the dismissal (of the rest of the claims).

Rule 12: provides that where parties are ordered to appear in person don’t do so or show sufficient cause for non-appearance then:

  • The court may dismiss the suit- against the petitioner (if he does not appear)

  • Proceed Ex-parte- as against the defendant (if he does not appear).

Ex-parte decree:

An Ex-parte decree is a decree passed in the absence of the defendant (in absenti). It is proper, lawful, operative and enforceable like any other decree of the court unless it is annulled on bonafide legal grounds.

Remedies against an award of an ex-parte decree:

  1. To apply for setting aside under Order 9 Rule 13 (will be discussed below).

  2. To prefer an appeal against such decree under Section 96(2) of the Code and, where no appeal lies, file for revision under Section 115.

  3. To apply for Review under Order 47 Rule 1.

  4. To file a suit on the ground of fraud – (as held in Rani Choudhury v. Suraj Jit Choudhury [1982])

Setting aside ex-parte decree- Rule 13:

Rule 13 provides for the grounds for setting aside an ex-parte decree i.e. if the defendant satisfies the court that:

  1. Summons was not duly served on the defendant (as through any of the modes of summons provided under Order 5-Rule 9 to 30) OR

  2. He was prevented by “sufficient cause” from appearing on the date. If the summons was irregularly served i.e. the defendant had been intimated about the date of hearing and he had sufficient time and means to appear then, the ex-parte decree will not be set aside [2nd proviso to Rule 13]

The question of sufficient cause is to be determined by the facts and circumstances of each case. It is a question of fact and, each case has been decided on the facts and circumstances before the court and NOT ON PRECEDENTS- as held in Vijay Kumar v. Kamlabai

It was held in G.P Srivastava v. R.K. Raizada, that the aforementioned grounds are exhaustive.

Article 123 of the First Schedule of Limitation Act, 1963- an application for setting aside ex-parte decree has to be made within 30 days of such decree being passed.

First Hearing and framing of issues:

After pleadings, the day on which issues are framed and then discussed or settled by the court is called the First Hearing.

Hearing in a suit (courtroom picture)

Order 10-Rule 1: provides that the court shall ascertain from each party or his pleader whether he admits or denies any of the allegations made in either the plaint or the subsequent written statement filed by the defendant alleging points against the initiator of the suit.

#Order 10 Rule 1-A, B, and C are all Alternative Dispute Resolution provisions added under the Code after the institution of the Arbitration and Conciliation Act 1996.

It has been held by the Supreme Court in Banke Ram v, Saraswati Devi and Kapil Carepacks v. Harbans Lal that, the object of the examination conducted under Order 10 is to identify the matter in controversy and not get into proving or disproving the matter in dispute nor seek admissions or decide the rights and liabilities of the parties then and there.

Framing of Issues [Order 14]:

‘Issue’ definition: An issue is which, if decided in favour of the plaintiff, will itself give a right to relief and if in favour of the defendant, will itself be a defence [as held in Howell v Derring]

Judge gavel and statutory books

Under Order 14 Rule 1: Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. “Material proposition” are those propositions of law or fact that a plaintiff must allege to show a right to sue OR a defendant must deny/allege to constitute a defence in the suit [Rule 1(2)].

Kinds of Issues [Rule 1 and 2]:

  • Issues of Fact

  • Issues of Law

  • Issues of both Fact and Law (mixed)

Rule 2(1) provides that when issues of both fact and law arise at the same time, the court should pronounce judgement on all issues or may dispose of the suit on a preliminary issue.

Under Rule 2, any issue may be treated as a preliminary issue if it relates to:

  1. Jurisdiction of the Court

  2. Bar to the suit created by law.

Materials for framing issues [Rule 3]:

  1. Allegations that are made on oath by both parties or by any person present on their behalf.

  2. Allegations that are made in pleadings or answers to interrogatories.

  3. Documents produced by parties.

Disposal of Suit at First Hearing [Order 15]:

The court may pronounce a judgment right away in the following cases:

  1. Where the parties are not at an issue of any question of law or fact [Rule 1].

  2. In cases of multiple defendants, the defendant that admits the claim will be given judgement. As for the others, the proceedings shall go on [Rule 2].

  3. When the court is satisfied after framing issues that no argument or evidence is required to get to the suit’s finality [Rule 3].

  4. Where the summons has been issued for the final disposal of suit and either party fails (without sufficient cause) to produce evidence [Rule 4]

  5. Where a party makes certain admissions that essentially fulfil the suit and are considered sufficient by the court to dispose the suit finally.

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