Non-appearance of parties; consequence and  remedy

In a civil suit, both plaintiff and defendant must be present on the day of the hearing but due to various circumstances either one of them or both parties may fail to appear before the court which is also known as Non-appearance of parties. Each non-appearance has certain consequences and there are remedies against such consequences.

Let’s understand it step by step with legal reference.

In a civil suit plaintiff presents his / their claim through a plaint, issue summon via court to the defendant and then the defendant presents their clarification or presents their part to the facts and circumstance. If by then the issue is not solved, the court proceeds to the hearing stage. In that stage, both parties must be present to provide evidence, explanation and answer to the opposite party. In short, it is the stage of providing evidence, examination and cross-examination which is called hearing. Then based on such activities the court shall provide his judgment, order and decree. Therefore it is very important to be present on the date of hearing.

Here the question may arise in our mind that what would happen if a plaintiff or a defenadant misses his date of hearing or fail to appear before the court on the due date?

There could be a certain situation where any of such parties fail to appear before the court on the date for submission of a written statement or on the date of hearing, it could be sickness of parties, mistake of the council, mistake of fact, mistake of law or any other unexpected and unavoidable circumstance or in some case, it might be the negligence of the party or some due to some technical reason party decided not to appear in the court. Whatever the reason is, non-appearance of parties is a real problem in our to day to day court proceedings and therefore there are specific laws for non-appearance of parties.

To know more about the procedure of a civil suit please follow: Stages of a Civil Suit [CPC 101]

The rules of non-appearance of parties are provided under order 9 of the Code of Civil Procedure, 1908.

Before proceeding to the details rule memorize three simple points to understand the process easily.

  • In the default of plaintiff = dismissal of suit
  • In the default of plaintiff = ex-parte decree
  • In default of both party = dismissal of suit

 

Order 9; Appearance and non-appearance of parties.

[Easy short description is given, not the bare act]

Rule 1; Defendant must be present with written statement

The defendant himself or by his pleader must be present and appear before the court on the date provided in the summons to present the written statement. Then the suit shall be heard by the court unless another date is fixed for the hearing.

Rule 2; The suit shall be dismissed when summon is not property served

When a summons is not served due to the plaintiff’s fault like, when court-fees is not properly given or when postal charges are not given the court may order the dismissal of the suit.

Rule 3; Suit shall be dismissed when neither party appears

In cases where none of the party appears in the court for hearing the court may dismiss the suit.

Rule 4; Fresh suit by plaintiff against dismissal

This is a remedy rule, where a suit is dismissed due to the default of the plaintiff as provided under rule 2 and rule 3, the plaintiff may initiate a fresh suit or he may also apply to set aside (cancel) the dismissal order. But he must satisfy the court that there was sufficient cause for such non-appearance.

But to file a new suit the plaintiff must follow section 5 of The Limitation Act, 1908.

So we can conclude;

  • After dismissal, the plaintiff can file an application / Miscellaneous case to the court to set aside such dismissal
  • The application must be applied within 30 days
  • Proper reason must be shown to the court.

Rule 5; When summon is returned

If the summon is not duly served a second summons needs to be served. Where the plaintiff failed to serve the second summon the suit shall be dismissed.

Remedy: In such a case a new suit can be instituted maintaining the law of limitation.

Non-appearance of parties

Non-appearance of parties

Ex Parte Decree

Rule 6; When defendant does not appear

In cases where only plaintiff appears but the defendant does not appear, the court will consider whether the summon was duly served or not.

  • If it is found that the summons was duly served then the court may provide an ex parte decree.
  • Where it is found that the summon is not duly served then the court shall order to provide a second summon.
  • Where summon is served but sufficient time has not been given to the defendant then the court may postpone the hearing and shall provide another date.

Rule 7: Where the defendant appears after ex-party on the date of adjourned

Where a defendant appears after the ex parte decree against him on the date of adjourned and shows good cause for such delay the court may order to assign another day for hearing ordering the defendant to provide with or without cost.

Dismissal of the suit

Rule 8; Where plaintiff does not appear

In cases where the plaintiff does not appear and only the defendant appears in the court then the court shall make an order of dismissal of such case.

But in cases where –

  • The defendant already accepted the claims made by the plaintiff the court shall provide a decree. Or,
  • Where The defendant accepted the claims partially the court shall provide a partial decree.

Remedy Against dismissal

Where the suit is dismissed under rule 8 of order 9 of CPC there are two remedy

Rule 9: General remedy by showing cause

  • An application must be preferred before the court
  • The application must be presented within 30 days , according to article 163 of Limitation act.
  • Proper cause must be shown for the non appearance and the court must be satisfied with such cause.

Rule 9A ; Speedy Remedy without showing cause

  • An application must be preferred before the court
  • The application must be presented within 30 days, according to article 163 of Limitation act.
  • No need to show cause of the non-appearance.
  • Notice must be provided to the opposite party.
  • Up to 1000 taka cost can be ordered by court to be provided by the party.
  • This procedure can not be used more than once.

Remedy Against ex parte decree

In cases where an ex parte decree is provided against the defendant under rule 6 of Order 9 of The Code of Civil Procedure, 1908 five remedies are there.

Rule 13: General remedy by showing cause

  • An application must be preferred before the court
  • The application must be presented within 30 days, according to article 164 of Limitation act.
  • Proper cause must be shown for the non-appearance and the court must be satisfied with such cause.

Rule 13A ; Speedy Remedy without showing cause

  • An application must be preferred before the court
  • The application must be presented within 30 days, according to article 164 of Limitation act.
  • No need to show cause of the non-appearance.
  • Notice must be provided to the opposite party.
  • Upto 3000 taka cost can be ordered by court to be provided by the party.
  • This procedure can not be used more than once.

Appeal

We know ex-parte decree is a decree so an appeal can be preferred against an ex parte decree under section 96 (2) of CPC

Review

A review can also be filed under section 114 of CPC against an ex parte decree.

Application under 151

Where there is a fraud or misuse by which the ex-parte decree is obtained then an application under section 151 is another option to proceed.

In our future post, we will cover the related drafting/application against ex parte or dismissal order as well as the limitation act. Please comment if you think you need it quickly.

Non-appearance of parties and this rules of re-starting procedure by cancelling dismissal or ex-party order is one of the reasons for the unusual delay in a civil suit. However, these procedures are also very important to provide equal footing to each party and consider their circumstances with human approach to ensure the ends of justice.

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Rayhanul Islam

Rayhanul Islam

Rayhanul Islam is a lawyer by profession, he is also a researcher. Critical thinking is his main focus. He is the founder and Editor in Chief of Law Help BD. He is on a quest to bring positive change to the legal sector of Bangladesh. He promotes legal knowledge and human right concept to the root level. e-mail: rayhan@lawhelpbd.com

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