Introduction: Appearance and
non-appearance is a major issue to settle a dispute. Because, mere appearance
or non- appearance may determine the result of the suit. The provisions of the
Code of Civil Procedure, 1908 are based on a general principle that, as far as
possible, no proceeding in a court of law should be conducted to the detriment
of any party in his/her absence[1].
It is the duty of the concern party to appear before the trial court at a due
time. Otherwise, the result may turn reverse to the non-appeared party.
However, if the suit is determine at that date for the lacking of
non-appearance of a party, the affected party may have a chance to revive the
suit by following the provisions of The Code of Civil Procedure, 1908.
Actually, Order-IX
of the Code of Civil Procedure, 1908 enumerates the provision of consequence(s)
of appearance and non-appearance of parties in a civil litigation. Especially, Order-
IX, rule- 2 enumerates the consequence of failure of deposit of
process fees by the plaintiff; rule- 3 & 4 provides the consequence
of non-appearance of both (Plaintiff & Defendant) parties. Rule- 8, 9,
9A enumerates the consequences of non-appearance of Plaintiff and lastly rule-
6, 13 & 13A deals with the provision of non-appearance of Defendant.
Lets us discuss all these three one by one.
Connotation of the word appearance: The
word “appearance” has a well-recognised meaning and means appearance in person
or through advocate for conducting a case[2].
So, appearance
may be by a party in person or by an advocate or by a party in person along
with his advocate[3].
Appearance of the parties: Rule 1 of Order IX deals with the provision of appearance of the parties. 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.
Rule 1 requires
the parties to the suit attend the Courthouse in person or by their respective
pleaders on the day fixed in the summons for the defendant to appear. So the
rule relates to the appearance of the first hearing of the suit.[5]
Thus, it is not sufficient
for them to take any course, short of appearance. It is not sufficient for the
defendant to send a letter to the court or for his advocate merely to file a Vokalatnama,
while remaining absent[6].
Dismissal of the suit
for the lacking of process fee by the plaintiff: If the plaintiff is
failed to deposit process fees to the court within the stipulated time
stipulated by the court, then the suit may dismiss[7] as
per rule- 2 of the said Order. As per the language of the Code the
provision is:
“Where on the day so fixed it is found that the summons has not been
served upon the defendant in consequence of the failure of the plaintiff to pay
the court-fee or postal charges, if any, chargeable for such service, or
failure to present copies of the plaint as required by rule 9 of Order VII, the
Court may make an order that the suit be dismissed:
Provided that no such order shall be made, if, notwithstanding such
failure, the defendant attends in person or by agent when he is allowed to
appear by agent on the day fixed for him to appear and answer he attends in
person or by agent when he is allowed to appear by agent”.
Consequences of
non-appearance by the plaintiff: On the date of peremptory hearing,
if the plaintiff not appears but the defendant appears then the suit will
dismiss under O- 9, r- 8.
(The rule said: “Where the defendant appears and the
plaintiff does not appear when the suit is called on for hearing, the Court
shall make an order that the suit be dismissed, unless the defendant admits the
claim or part thereof, in which case the Court shall pass a decree against the
defendant upon such admission, and, where part only of the claim has been
admitted, shall dismiss the suit so far as it relates to the remainder”.)
Remedies:
If a suit is dismissed under Order- 9 or 3 then the plaintiff has
two-fold options to revive his dismissed suit. Those are as follows:
i)
Filing a fresh suit before the competent court, if the
suit is not bar by law and
ii)
The Plaintiff may files a petition under O-9, R-
4.
(The Rule- 4 is: “Where a suit is dismissed under rule 2 or rule 3,
the plaintiff may (subject to the law of limitation) bring a fresh suit, or he
may apply for an order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause for [such failure as is referred to in
rule 2], or for his non-appearance, as the case may be, the Court shall make an
order setting aside the dismissal and shall appoint a day for proceeding with
the suit”.)
This petition under O-9, R- 4 is one type of Misc. case. The case should
be filed within 30 days from the date of cancellation of such suit as per Art.
162 of the Limitation Act. However, after the expire of that 30 days the
case mat be filed by virtue of Sec. 5 of the Limitation Act. The phrase
“Sufficient cause” mentioned in sec. 5 of the mentioned law means the cause,
which is beyond the control of the alleged person. It may an act of God or a
mere man made disaster. Where there are concurrent remedies are available the
duty of the concern lawyer is to choice the best one for the benefit of the
party.
If the suit is, dismiss under O- 9, r- 8; then the plaintiff have
two concurrent remedies:
i)
He may file a petition by swearing an affidavit to the
concern court within 30 days from the date of such dismissal along with a fees
not more than 1000Tk. and
ii)
He may file a fresh suit.
Consequence of
non-appearance by the defendant: On the date of peremptory hearing,
if the plaintiff is present but the defendant not present then the suit will
decreed ex-parte as per O-9, r- 6.
(The rule is: “(1) Where the plaintiff appears and the defendant does
not appear when the suit is called on for hearing, then-
[(a)] When summons duly served-if it is proved that the summons was
duly served, the Court may make an order that the suit shall be heard ex pane.]
(b) When summons not duly served-if it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant;
(c) When summons 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, the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
(b) When summons not duly served-if it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant;
(c) When summons 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, the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiffs' default that the summons was
not duly served or was not served in sufficient time, the Court shall order the
plaintiff to pay the costs occasioned by the postponement”.)
Proceedings
under Order- 9, rule 9A is a special type of Litigation and there is no
scope of condonation of delay.
A Misc. case must be file before the trial court. If a Misc. case under
O-9, r- 4 is dismissed, the remedy is revision and if a misc. case under O-
9, r- 9 (“(1) Where a suit is wholly or partly dismissed under
rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect
of the same cause of action. But he may apply for an order to set the dismissal
aside, and if he satisfies the Court that there was sufficient cause for his
non-appearance when the suit was called on for hearing, the Court shall make an
order setting aside the dismissal upon such terms as to costs or otherwise as
it thinks fit. and shall appoint a day for proceeding with suit.
(2) No order shall be made under this rule unless notice of the
application has been served on the opposite party”.) is dismissed then the
plaintiff files an appeal because it is an appeal able order and it is called
as Misc. Appeal. Order- 43, r- 1(a-w) provides the list of appeal able
order. If the filed misc. case is granted, then whether opposite party can file
appeal against such order is not clear by law, that’s why this type of matter
deal by revision, because where there is no appeal there is a provision of
revision.
Remedies: If an ex parte decree is passed against the
defendant then the defendant has to take five types of action against such
decision among them three is most vital. These are:
i)
In accordance with O- 9, r- 13A defendant has to
file a petition by swearing an affidavit within 30 days to the trial court to
set aside the decision with a fine not more than Tk. 3000. Defendant can get
this opportunity once as per the provision of law,
ii)
As per O-9, r- 13 he may apply for setting aside
the ex parte decree. In this case, the defendant shall prove sufficient
case but in former case, a defendant need not prove sufficient cause for
non-appearance,
iii)
He may file an appeal under Sec. 96 of CPC. No
appeal can continue in compromise decree but an appeal may file against ex
parte decree,
iv)
The defendant may file a review petition before the
same court under O- 47, r- 1, Sec. 114 of CPC and
v)
The defendant may file an independent suit for
cancellation of the decree as per Sec. 42 & 39 of the Specific Relief
Act.
Application for set aside ex-parte decree:
Rule
13 as follows: “In any case in which 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; and if he satisfies the Court that the summons
was not duly served, or that he was prevented by any sufficient cause from
appearing when the suit was called on for hearing, the Court shall make an
order setting aside the decree as against him upon such terms as to costs,
payment into Court or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit;
Provided that
where the decree is of such a nature that it cannot be set aside as against
such defendant only it may be set aside as against all or any of the other
defendants also”.
Rule 13
deals with setting aside ex-parte decree passed against the defendant.
Whereas the remedies by way of appeal and review is available to any person
against whom a decree is passed, the remedy provided by this rule can be
available of only by the defendant for
whose default of appearance an ex-parte decree is passed.
“Sufficient cause” has not been defined
anywhere in the Code. It is a question of fact. It is determine by the fact and
circumstances of each case[8].
Consequences of
non-appearance of both the parties (plaintiff & defendant): On
the date of peremptory or final hearing if both, the parties (Plaintiff &
Defendant) absent from the hearing then the suit may dismiss according to O-
IX, rule- 3. The rule said: “Where neither party appears when the suit
is called on for hearing, the Court may make an order that the suit be
dismissed”.
Ending Remarks: Hence, non-appearance has a great impact upon
a civil proceeding. It is duty of the concern parties to appear before the
learned court at the due time and helps the court to settle the dispute;
otherwise, the absent party may suffer and not entitled to get justice.
Selected Bibliography:
1. The Code of Civil Procedure, 1908- Ministry of
Law, Justice & Parliamentary Affairs;
2. The Code of Civil Procedure: Concept,
comment & case- Mohammad Gholam Rabbani;
3. Law of Civil Procedure- Mahmudul Islam
& Probir Niogi;
4. Law of Civil Procedure- Naim Uddin Ahmed;
5. Civil Procedure- C K Takwani;
6. Principles of Civil Litigations- Ishrat
Azim Ahmed & Md.
Ershadul Karim.
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