Appearance and Default Procedure (Order IX)

Order IX of the Code of Civil Procedure, 1908 regulates what happens on the day fixed in the summons for the defendant to appear and answer. Rule 1 fixes the duty: the parties shall be in attendance at the court-house in person or by their pleaders, and the suit shall be heard unless adjourned. The remaining rules trace the consequences of non-attendance — by both parties, by only the plaintiff, by only the defendant, by some plaintiffs or some defendants — and supply the restoration machinery. Rule 13, on setting aside ex parte decrees, is the most-litigated provision in the Order.

Order IX is the operative consequence of Order V on issue and service of summons. The two are read together: a court can declare a defendant ex parte under Rule 6(1)(a) only after Order V service is proved; a court can pass an ex parte decree only when the plaintiff has made out a prima facie case; and a defendant whose ex parte decree is set aside under Rule 13 returns the suit to the stage at which the default occurred. The discipline is informed by the bar of Section 9 jurisdiction at the front end and by place-of-suing rules under Sections 15 to 21 at the territorial end.

Scheme of Order IX

Rules 1 to 5 set out what happens at the threshold. Rule 1 requires attendance. Rule 2 permits dismissal of the suit where the plaintiff has failed to pay process fee or postal charges. Rule 3 covers non-appearance by both parties. Rule 4 supplies the restoration remedy for dismissals under Rules 2 and 3. Rule 5 deals with dismissal where summons has been returned unserved and the plaintiff has not applied for fresh summons within seven days.

Rules 6 to 9 deal with appearance by one side only. Rule 6 governs the case where the plaintiff appears and the defendant does not. Rule 7 permits a defendant who reappears at an adjourned hearing to be heard on showing good cause. Rule 8 covers the case where the defendant appears and the plaintiff does not. Rule 9 supplies the restoration remedy and bars a fresh suit on the same cause of action where dismissal under Rule 8 stands.

Rules 10 to 13 deal with multiple parties and ex parte decrees. Rule 10 governs non-appearance of one or more of several plaintiffs. Rule 11 governs non-appearance of one or more of several defendants. Rule 12 deals with parties ordered to appear in person. Rule 13 supplies the central remedy — setting aside an ex parte decree on proof of non-service or sufficient cause for non-appearance. Rule 14 reserves the duty of the court to make consequential orders.

Rule 1 — duty of attendance

Rule 1 makes attendance on the day fixed in the summons mandatory in form. The discipline of adjournments under Order XVII takes over thereafter. The Supreme Court in Sangram Singh v Election Tribunal, Kotah, [1955] 2 SCR 1, treated the obligation under Rule 1 as a participation duty — not a foreclosure of later participation if a default is followed by a return to court.

Rule 2 — dismissal for non-payment of court-fee or postal charges

Where on the day fixed the summons has not been served on the defendant because the plaintiff has failed to pay court-fee or postal charges, or has failed to file copies of the plaint as required by Order VII Rule 9, the court may dismiss the suit. The proviso saves the suit if the defendant nevertheless attends. Rule 2 is enabling and directory, not mandatory — the Bombay High Court in Shri Samat Textile Industries Ltd v Naranji Peraj Tpt Co, AIR 1996 Bom 213, held that the court is not bound to dismiss. Where some defendants have been served and others not, the suit cannot be dismissed wholly. The Rule 2 dismissal also has knock-on effects on the plaint discipline of Order VII, since failure to file plaint copies under Order VII Rule 9 is one of the triggering events.

Rule 3 — neither party appears

Where neither party appears when the suit is called on for hearing, the court may dismiss the suit. The rule applies only at the first hearing fixed for the defendant's appearance — defaults at adjourned hearings are governed by Order XVII. Mere physical presence in court is not appearance for purposes of this rule (Suraj Prasad v Rambaran, AIR 1956 Pat 105). The Supreme Court in Hingu Singh v Jhuri Singh, (1918) ILR 40 All 547, distinguished a Rule 3 dismissal from a dismissal on merits where the plaintiff appears but fails to lead evidence — the latter is a decision on the merits, not under Rule 3.

Rule 4 — restoration of suits dismissed under Rules 2 and 3

Rule 4 permits the plaintiff, subject to the law of limitation, either to bring a fresh suit or to apply for restoration. The court must be satisfied that there was sufficient cause for the failure or non-appearance. The discretion is liberal — the Supreme Court in Ram Kumar Gupta v Har Prasad, AIR 2010 SC 1955, held that a litigant who has engaged a counsel cannot be punished for the counsel's default. The court must look at the totality of the situation, including any defect in its own procedure (Kamta Prasad v Jaggiya, AIR 1999 All 16).

Restoration under Rule 4 does not require notice to the defendant — unlike restoration under Rule 9. This is one of the two basic distinctions between the two remedies. The other is the limitation consequence: a fresh suit on the same cause of action is permitted after dismissal under Rules 2 or 3, but is barred after dismissal under Rule 8.

Rule 5 — fresh summons within seven days

Where summons has been issued and returned unserved, the plaintiff must apply for fresh summons within seven days from the date of the return. The pre-1976 period was three months; the 1976 amendment reduced it to one month; the 1999 amendment reduced it further to seven days from 1 July 2002. The court may extend time if the plaintiff satisfies it that he has failed despite best endeavours to discover the defendant's residence, that the defendant is avoiding service, or that there is any other sufficient cause. Sub-rule (2) preserves the plaintiff's right to bring a fresh suit subject to limitation. The Bombay High Court has retained a State amendment that fixes a longer period of two months from the next hearing.

Rule 6 — only plaintiff appears

Rule 6 sets out three cases:

1. Summons duly served. The court may proceed ex parte and pass a decree if the plaintiff makes out a prima facie case.
2. Summons not duly served. The court shall direct a second summons to be issued and served.
3. Summons served but not in due time. The court shall postpone the hearing and direct notice of the new date to be given to the defendant. Where the delay is owing to the plaintiff's default, the plaintiff bears the costs.

The Supreme Court's seminal pronouncement in Sangram Singh confined Rule 6(1)(a) to the first hearing — it does not, by itself, govern subsequent hearings. The court's jurisdiction to proceed ex parte at the first hearing does not foreclose the defendant from rejoining the proceedings later under Rule 7. The mere absence of the defendant does not justify the presumption that the plaintiff's case is true; the court must require at least prima facie proof (Amrit Nath Roy v Dhunpat, (1871) 7 BLR 332). The court has no jurisdiction to pass an ex parte decree without any evidence (Ross & Co v Scriven, (1916) ILR 39 Mad 1101).

Rule 7 — return of the defendant at the adjourned hearing

Where the court has adjourned the ex parte hearing, and the defendant appears at or before such hearing and assigns good cause for previous non-appearance, he may be heard in answer to the suit on such terms as to costs as the court directs — as if he had appeared on the day fixed. The Supreme Court in Arjun Singh v Mohindra Kumar, AIR 1964 SC 993, held that Rule 7 does not apply once the entire hearing has been completed and only the judgment remains. The defendant's window for re-entry closes when the court has heard arguments and reserved judgment.

If a Rule 7 application is rejected, the defendant is not foreclosed from participating in later proceedings of the suit (Badimeri Pochaiah v Gatla Akkapalli, AIR 1992 AP 234). The rejection denies him relegation to the stage at which the default occurred but does not bar him from the residue of the trial.

Rule 8 — only defendant appears

Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall dismiss the suit, unless the defendant admits the claim or part of it — in which case the court shall pass a decree on the admission and dismiss the suit as to the rest. The defendant gains nothing more than dismissal: he cannot lead evidence to disprove allegations against him under this rule (Kesri Chand v National Jute Mills Co, (1913)).

An order of dismissal under Rule 8 is not a decree (Section 2(2)(b)) and is not appealable. The remedy is by application under Rule 9.

Rule 9 — restoration after Rule 8 dismissal; bar on fresh suit

Rule 9(1) bars the plaintiff from bringing a fresh suit on the same cause of action where the suit has been dismissed wholly or partly under Rule 8. The plaintiff's only remedy is restoration on showing sufficient cause for non-appearance. Sub-rule (2) makes notice to the opposite party mandatory before the restoration order can be made. Rule 9 is the procedural counterpart of res judicata under Section 11: a Rule 8 dismissal precludes the plaintiff from re-litigating, just as a decision on merits would.

Sufficient cause — a liberal standard

The Supreme Court has consistently treated "sufficient cause" as elastic. Bank of Baroda v Sansar Chand Kapur, AIR 1994 Del 232, held a counsel's engagement in another court sufficient. Lachi Tewari v Director of Land Records, AIR 1984 SC 41, restored a rule discharged on the ground of unrepresented hearing where two of three counsels were busy elsewhere and the third missed an air connection. Davinder Pal Sehgal v Pratap Steel Rolling Mills Pvt Ltd, AIR 2002 SC 1175, reiterated that the matter is one of judicial discretion to be exercised pragmatically rather than with technical rigidity. Mistakes in the cause-list also constitute sufficient cause (Ganganagar Sugar Mills Ltd v Upper Ganges Sugar Mills Ltd, AIR 1990 Cal 32).

Difference between Rule 4 and Rule 9

Two basic differences set Rules 4 and 9 apart. First, where the suit is dismissed under Rules 2 or 3, a fresh suit on the same cause of action is permissible (subject to limitation), and Rule 4 is the restoration route; where the suit is dismissed under Rule 8, a fresh suit is barred and Rule 9 is the only route. Second, restoration under Rule 4 does not require notice to the defendant; restoration under Rule 9 mandatorily does. The Supreme Court in P Nalla Thampy v BL Shanker, AIR 1984 SC 135, set out both differences in terms.

Rules 10 and 11 — multiple plaintiffs or defendants

Rule 10 governs the case where there are several plaintiffs and one or more do not appear. The court may, at the instance of the appearing plaintiff or plaintiffs, permit the suit to proceed as if all had appeared, or make such other order as it thinks fit. Rule 11 governs the corresponding situation on the defendants' side: the suit shall proceed against the appearing defendants, and at the time of judgment the court shall make such order as it thinks fit with respect to the absent defendants. The interplay with the joinder rules under Order I is direct — a misjoined plaintiff who fails to appear may be eliminated under Rule 10 without disturbing the suit's structure.

Rule 12 — party ordered to appear in person

Rule 12 makes the consequences of non-appearance under the foregoing rules applicable to a party who has been ordered to appear in person under Order V Rule 3 and fails to do so without sufficient cause. The Supreme Court in Jagraj Singh v Bir Pal Kaur, AIR 2007 SC 2083, treated personal appearance in matrimonial matters as a mandatory aspect of the conciliation duty under Section 23 of the Hindu Marriage Act, 1955 — the court has the power to ensure attendance through coercive process where civil consequences of Section 23 are at stake.

Rule 13 — setting aside ex parte decrees

Rule 13 permits a defendant against whom an ex parte decree has been passed to apply to the court that passed it for an order setting it aside. The court must be satisfied either that the summons was not duly served or that the defendant was prevented by sufficient cause from appearing when the suit was called on for hearing. On satisfaction, the court shall set aside the decree on such terms as to costs, payment into court, or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

The two provisos

The first proviso permits the decree to be set aside as against all defendants where the decree is of such a nature that it cannot be set aside against one defendant alone. The second proviso, inserted in 1976, bars setting aside merely on the ground of irregularity in the service of summons if the court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the claim. The proviso supplies a safety valve against technical objections by defendants who had actual notice but choose to rely on procedural defects.

Explanation — appellate withdrawal

The Explanation, also inserted in 1976, bars a Rule 13 application where there has been an appeal against the ex parte decree which has been disposed of on any ground other than withdrawal of the appeal. The doctrine of merger underpins this — once the appellate court has decided the merits, the trial court cannot reopen by setting aside the ex parte decree.

Nature of the ex parte decree

An ex parte decree is a decree passed against a defendant in absentia. It is legal, valid, operative and enforceable like any decree (Chandu Lal Agarwalla v Khalilur Rahman, AIR 1950 Cal 548). Setting it aside is the procedural remedy, not the only one. A defendant may appeal under Section 96(2) against an ex parte decree, and the existence of the right of appeal does not by itself bar a Rule 13 application — except in the narrow situation governed by the Explanation.

Sufficient cause under Rule 13

The Supreme Court in G P Srivastava v R K Raizada, (2000) 3 SCC 54, treated "sufficient cause" under Rule 13 as elastic, to be construed liberally so that substantive justice is not defeated by technicalities. The court must look at the conduct of the defendant — whether the absence was due to circumstances beyond his control or to wilful neglect. The illness of the defendant or his counsel, an unexpected exigency, or a mistake in the date — all have been treated as sufficient cause in appropriate facts.

Compromise decrees and Rule 13

Rule 13 cannot be used to set aside a compromise decree (Indian Overseas Bank v HS Chandrashekhar, AIR 2000 Kar 271). Where a decree is signed by the counsel for the defendant on the basis of compromise, it is not an ex parte decree and falls outside Rule 13. The remedy in such cases lies in a separate suit or under the proviso to Rule 3 of Order XXIII on withdrawal and adjustment.

Limitation and condonation

An application under Rule 13 must ordinarily be filed within thirty days from the date of the decree (Article 123 of the Limitation Act, 1963), or from the date the applicant gained knowledge of the decree where summons was not duly served. Section 5 of the Limitation Act applies, and most High Court amendments have made the position explicit. An application under Rule 7 (which seeks recall of the order setting the defendant ex parte, not the decree itself) is governed by Article 137 — three years from the date when the right to apply accrues — since no specific article in the Limitation Act covers it (CL Cleetus v South Indian Bank Ltd, AIR 2007 Ker 21).

Effect of restoration on ancillary orders

Restoration of a suit revives all ancillary orders unless the order of dismissal expressly vacated them (Shivaraya v Sharnappa, AIR 1968 Mys 92). An interlocutory injunction granted before dismissal will continue once the suit is restored, unless the dismissal order specifically dissolved the injunction. The Patna High Court has held that restoration revives even an order striking off the written statement for non-deposit of rent in an eviction suit (Ranjit Singh v Sarda Ranjan Prasad Sinha, AIR 1981 Pat 215).

Distinguish — overlapping remedies in Order IX

Rule 4 vs Rule 9. Rule 4 covers restoration after dismissal under Rules 2 or 3; no notice required; fresh suit permissible. Rule 9 covers restoration after dismissal under Rule 8; notice mandatory; fresh suit barred.

Rule 7 vs Rule 13. Rule 7 covers the defendant's reappearance at the adjourned ex parte hearing — before any decree. Rule 13 covers the defendant's application after an ex parte decree is passed. Both require sufficient cause.

Rule 13 vs Section 96(2). Rule 13 is an application to the trial court; Section 96(2) is an appeal to the appellate court. Both remedies are available but the Explanation to Rule 13 closes the trial-court route once the appeal is decided on merits.

Rule 13 vs Section 151. Section 151 inherent powers cannot be invoked to set aside an ex parte decree where Rule 13 squarely covers the situation; the Supreme Court in Arjun Singh v Mohindra Kumar closed that door, with limited exceptions for fraud or court mistake.

Application to special proceedings

Order IX has limited reach into special proceedings. The Supreme Court in New India Assurance Co Ltd v R Srinivasan, (2000) 3 SCC 195, and again in Indian Machinery Co v Ansal Housing & Construction Ltd, (2016) 10 SCC 526, held that Order IX Rule 9(1) does not bar a second complaint before a District Forum or State Commission under the Consumer Protection Act, 1986. The Family Court Act, 1985 and the Motor Vehicles Act, 1988 likewise have specific procedural rules that may displace Order IX in part. The Election Tribunal under State Panchayati Raj Rules has no power to restore an election petition dismissed for default unless the rules expressly invoke Order IX (S Nagarathnamma v P Muralidhar Reddy, AIR 2008 AP 41).

MCQ angle

1. Rule 4 vs Rule 9. Rule 4 — no notice, fresh suit permitted. Rule 9 — notice mandatory, fresh suit barred. The Supreme Court's exposition in P Nalla Thampy is the authority.
2. Rule 5 — fresh summons. Seven days from return for ordinary suits; the Bombay State amendment retains two months from next hearing.
3. Rule 6 cases. Three sub-cases — summons duly served, not duly served, and served but not in time. Each has a distinct procedural consequence.
4. Rule 13 grounds. Either non-service of summons or sufficient cause for non-appearance. The second proviso saves a decree from being set aside merely on irregularity of service if the defendant had actual notice.
5. Limitation under Article 123. Thirty days from the decree, or from the date of knowledge where summons was not duly served.

Order IX is the procedural valve that opens and closes the trial. Knowing which rule applies — Rules 2 to 4 for failure to serve, Rule 5 for failure to apply for fresh summons, Rule 6 for one-sided appearance, Rule 8 for plaintiff's default, Rule 13 for the post-decree challenge — is the difference between a sound grasp of CPC procedure and a confused one. The chapter feeds into Order VIII on the written statement, into first appeals under Order XLI and Section 96(2) for the parallel appellate route, and into Section 151 inherent powers for the residual jurisdiction.

Frequently asked questions

What is the difference between Order IX Rule 4 and Order IX Rule 9 CPC?

Two basic differences. First, Rule 4 covers restoration after dismissal under Rules 2 or 3 — for failure to serve summons or non-appearance of both parties; a fresh suit on the same cause of action is permissible subject to limitation. Rule 9 covers restoration after dismissal under Rule 8 — when only the defendant appears and the plaintiff does not; a fresh suit on the same cause of action is barred. Second, Rule 4 does not require notice to the defendant before restoration; Rule 9(2) makes notice to the opposite party mandatory. The Supreme Court set out both points in P Nalla Thampy v BL Shanker, AIR 1984 SC 135.

Can an ex parte decree be set aside merely because of an irregularity in service of summons?

No, not after the 1976 amendment. The second proviso to Order IX Rule 13 expressly bars setting aside an ex parte decree merely on the ground of irregularity in service if the court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the claim. The provision distinguishes mere irregularity (technical) from non-service (substantive). Where the defendant had actual notice and the irregularity caused no prejudice, the decree stands.

Within what period must an application under Order IX Rule 13 CPC be filed?

Thirty days from the date of the decree under Article 123 of the Limitation Act, 1963. Where the summons was not duly served, the period runs from the date the applicant gained knowledge of the decree. Section 5 of the Limitation Act applies and delay can be condoned for sufficient cause. The position differs from a Rule 7 application — recalling an order setting the defendant ex parte before any decree — which is governed by Article 137 (three years), since no specific article covers it (CL Cleetus v South Indian Bank Ltd, AIR 2007 Ker 21).

Can Order IX Rule 13 be used to set aside a compromise decree?

No. Rule 13 covers only ex parte decrees — decrees passed against a defendant in absentia where the defendant has not participated. A compromise decree is one signed by the parties' counsel on the basis of an agreed settlement; the defendant has by definition appeared. The discipline interlocks with the frame-of-suit rules under Order II, since a compromise on one limb of a bundled cause of action cannot be reopened by a Rule 13 application directed at another limb. The Karnataka High Court in Indian Overseas Bank v HS Chandrashekhar, AIR 2000 Kar 271, held that Rule 13 cannot be invoked. The remedy lies in a separate suit alleging fraud or mistake in the compromise, or under the proviso to Order XXIII Rule 3 challenging the lawfulness of the compromise itself.

Does the Sangram Singh principle restrict Rule 6(1)(a) to the first hearing?

Yes. The Supreme Court in Sangram Singh v Election Tribunal, Kotah, [1955] 2 SCR 1, confined Rule 6(1)(a) to the first hearing fixed for the defendant's appearance. The court's power to proceed ex parte at the first hearing does not, per se, foreclose the defendant from rejoining proceedings later under Rule 7. The principle protects defendants who fail to appear at the first hearing for excusable reasons but reappear later — they remain entitled to participate in the residue of the trial, even if they cannot recover the stage at which the default occurred.

What is a sufficient cause under Order IX Rule 9 or Rule 13?

There is no straight-jacket formula. The expression is to be construed liberally and pragmatically with a justice-oriented approach (Davinder Pal Sehgal v Pratap Steel Rolling Mills Pvt Ltd, AIR 2002 SC 1175). Counsel's engagement in another court (Bank of Baroda v Sansar Chand Kapur, AIR 1994 Del 232), illness, mistake in the cause-list, unforeseen travel exigency, or a counsel's report of 'no instructions' followed by a genuine attempt at restoration — have all been treated as sufficient cause in appropriate facts. The court must look at the totality of the situation, including any defect in its own procedure (Kamta Prasad v Jaggiya, AIR 1999 All 16).