📘 CIVIL PROCEDURE CODE : ORDER IX

Preparation for RJS, DJS, PCS (J) and other Judicial Service exams

⚖️ CIVIL PROCEDURE CODE EXPLAINED

The Civil Procedure Code forms the bedrock of any and every Judicial Service exam in the country. Its thorough knowledge is a must for all aspirants of RJS, DJS, PCS (J) and every other Judicial Service exam. To help such aspirants DELHI LAW ACADEMY JAIPUR has launched a series of study material modules on all important aspects of this vital part of their syllabus:

🧑‍⚖️ ORDER IX APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE

Parties to appear on the day fixed in summons

Rule 1

• On the day

– fixed in the summons for the defendant to appear and answer

• the parties

– shall be in attendance at the Court-house

– in person or by their respective pleaders and

• the suit shall then be heard…

• unless

– the hearing is adjourned to a future day fixed by the Court

Where summons not served

Rule 2

• Where on the day so fixed it is found

– that summons has not been served upon the defendant

– due to failure of the plaintiff to pay the court-fee or postal charges chargeable for such service or

– due to his failure to present copies of plaint as required by rule 9 of Order VII

• the Court

– may make an order that the suit be dismissed:

Where neither party appears

Rule 3

• Where neither party appears when the suit is called on for hearing:

• the Court

– may make an order that the suit be dismissed

Plaintiff may bring fresh suit

Rule 4

• Where a suit is dismissed under rule 2 or rule 3:

• the plaintiff

– may bring a fresh suit subject to the law of limitation or..

• the plaintiff

– may apply for an order to set the dismissal aside

• If he satisfies the Court

– that there was sufficient cause for his non-appearance

• Court shall

– make an order setting aside the dismissal and

– appoint a day for proceeding with the suit

Procedure when only plaintiff appears

Rule 6(1)

• Where

– the plaintiff appears and the defendant does not appear when the suit is called for hearing

– then

(a) when summons has been duly served

• if

– it is proved that the summons was duly served

• Court

– may make an order that the suit shall be heard ex parte

(b) when summons has not been duly served

• if

– it is not proved that the summons was not duly served

• Court

– shall direct a second summons to be issued and served on the defendant

(c) when summons was 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

• Court shall

– postpone the hearing to a future day to be fixed by it and

– direct notice of such day to be given to the defendant

Where defendant appears on the adjourned date

Rule 7

• Where

– Court has adjourned hearing of the suit ex-parte and

– the defendant appears at or before such hearing and assigns good cause for his previous non-appearance…

• he may be heard in answer to the suit

– upon such terms as the Court directs

• as if

– he had appeared on the day fixed for his appearance

Procedure where defendant only appears

Rule 8

• Where

– the defendant appears and the plaintiff does not appear when the suit is called for hearing

• Court

– shall make an order that the suit be dismissed

• unless the defendant admits the claim

• in which case, Court shall

– pass a decree against the defendant

• Where part only of the claim has been admitted:

• Court shall

– dismiss the suit so far as it relates to the remainder

Decree against plaintiff by default bars fresh suit

Rule 9(1)

• Where a suit is wholly or partly dismissed u/r 8:

• the plaintiff

– shall be precluded from bringing a fresh suit for the same cause of action

– but may apply for an order to set the dismissal aside

• If he satisfies the Court

– that there was sufficient cause for his non-appearance

• Court

– shall make an order setting aside the dismissal upon such terms as it thinks fit and

– appoint a day for proceeding with the suit

Setting aside decree ex-parte against defendant

Rule 13

• Where

– 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

• If he satisfies the Court

– that the summons was not duly served or

– that he was prevented by any sufficient cause from appearing

• the Court

– shall make an order setting aside the decree and

– appoint a day for proceeding with the suit

• A Court

– shall not 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

Explanation

• Where

– there has been an appeal against a decree passed ex parte and

– the appeal has been disposed of and not withdrawn

• no application shall lie under this rule

– for setting aside that ex parte decree

📘 Free Study Material for Judiciary Aspirants!

Download our FREE study material prepared by Delhi Law Academy’s expert faculty.

✅ Check Free Study Material

❓ Frequently Asked Questions – CPC Order IX