What are the legal consequences of non-appearance of parties during the hearing.

On the date fixed for the first hearing of a civil suit, parties are expected to appear before the court. What are the legal consequences if:

• (a) The plaintiff fails to appear?
• (b) The defendant fails to appear despite being duly served?
• (c) Some defendants appear, but others do not?
  Available remedies, legal procedure, applicable orders, and relevant case law.

Answer: The appearance or non-appearance of parties on the date fixed for hearing is governed by Order IX of the CPC, which outlines the powers of the court in each scenario, and the remedies available to affected parties.

(a) When the Plaintiff Fails to Appear:

• Order IX Rule 5:
  If the plaintiff does not appear when the suit is called for hearing, and the defendant appears, the suit shall be dismissed for default of appearance.
• Order IX Rule 3:
  If neither party appears, the court may dismiss the suit.
• Remedy:
  The plaintiff may file:
• An application for restoration of the dismissed suit under Order IX Rule 9 (if the suit was dismissed under Rule 5 or 3), by showing sufficient cause for non-appearance.
• Time Limit: 30-90 days from the date of dismissal, per the Law of Limitation Act, Cap. 89, R.E 2023.

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(b) When the Defendant Fails to Appear (after due service):

• Order IX Rule 7:
  If the plaintiff appears and the defendant does not, and it is proved that the summons was duly served, the court may proceed ex parte and hear the suit.
• Order IX Rule 8:
  Where there are multiple defendants, and only some appear, the court shall proceed and make orders as it thinks fit against the absentees.
• Procedure for Plaintiff:
• Make an oral prayer to proceed ex parte.
• Adduce evidence to prove the claim.
• If successful, the court issues an ex parte decree.
• Remedy for Defendant:
• May apply under Order IX Rule 13 to set aside the ex parte decree, by proving:
• (i) He was not duly served, or
• (ii) He was prevented by sufficient cause from appearing.
• Document: Chamber Summons supported by affidavit.
• Limitation Period: 30 days from date of decree or from date of knowledge. See item 5 of Part III of the Schedules of the Law of Limitations Act.

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(c) Where One or More of Multiple Defendants Fail to Appear:

• Order IX Rule 8 applies here too.
• The court may proceed with the appearing defendants and make orders concerning the non-appearing ones as appropriate.

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(d) Where Defendant Appears Later:

• Order IX Rule 4:
• If before an ex parte decree is passed, the absent defendant appears and gives sufficient reason for non-appearance, the court may allow him to participate as if he had appeared in time.

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