Code of Civil Procedure, 1908

Order IX CPC Rules 1-7: Appearance of Parties and Consequence of Non-Appearance

Order IX of the Code of Civil Procedure, 1908 deals with attendance of parties, dismissal of suits for default or non-appearance, restoration of suits, fresh summons, ex parte proceedings, and the right of a defendant to participate at an adjourned hearing on showing good cause for earlier non-appearance.

What Rules 1 to 7 cover: appearance on the date fixed in summons; dismissal where service fails due to the plaintiff's default; dismissal when neither party appears; restoration or fresh suit; failure to seek fresh summons within seven days; procedure when only the plaintiff appears; and participation by a defendant at an adjourned ex parte hearing.
Order IX Rule 1

Parties to appear on day fixed in summons for defendant to appear and answer

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.

Order IX Rule 2

Dismissal of suit where summons not served because of plaintiff's failure to pay costs

Where on the day so fixed it is found that 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.

Order IX Rule 3

Where neither party appears, suit to be dismissed

Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

Order IX Rule 4

Plaintiff may bring fresh suit or Court may restore suit to file

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.

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.

Order IX Rule 5

Dismissal where plaintiff fails for seven days to apply for fresh summons after return unserved

(1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of seven days from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons, the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that:

(a) he has failed after using his best endeavours to discover the residence of the defendant who has not been served; or

(b) such defendant is avoiding service of process; or

(c) there is any other sufficient cause for extending the time.

In such case the Court may extend the time for making such application for such period as it thinks fit.

(2) In such case the plaintiff may, subject to the law of limitation, bring a fresh suit.

Current central text: Rule 5 now prescribes seven days. The earlier period of one month was substituted by the Code of Civil Procedure (Amendment) Act, 1999 with effect from 1 July 2002.
Order IX Rule 6

Procedure when only plaintiff appears

(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing:

(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 parte.

(b) When summons not duly served. If it is not proved that the summons was duly served, 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 a 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 plaintiff's 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.

Order IX Rule 7

Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance

Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

Note: State amendments, High Court amendments and special procedural rules may apply in particular jurisdictions. Court-specific rules should therefore be checked when using these provisions in actual proceedings.

Official statutory reference

For the official central text, see India Code - The Code of Civil Procedure, 1908 .