37.-abhavya

ISSN 2455-4782

APPEARANCE AND NON-APPEARANCE OF THE PARTIES Authored by: Abhavya Rabra* * 3rd year BBA LLB student, Jagran Lakecity University, Bhopal

INTRODUCTION Appearance and non-appearance is a major issue to settle a dispute between the parties. As, mere appearance or non- appearance may determine the result of the suit. The provisions of the Code of Civil Procedure, 1908 are based on general principle that, as far as possible, no proceeding in a court of law should be conducted to the detriment of any party in their absence. It is the duty of the concerned party to appear before the trial court at a due time as 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. 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. Let’s us discuss all these three one by one.

CONNOTATION OF THE WORD APPEARANCE The word “appearance” has a well-recognized meaning and means appearance in person or through advocate for conducting a case. So, appearance may be by a party in person or by an advocate or by a party in person along with his advocate. “Appearance” by a pleader within the meaning of Order IX does not, as if appearance by a party in person means mere presence of the court; it means “appearance by a pleader” duly instructed 328 | P a g e

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ISSN 2455-4782 an able to answer all material questions relating to suit. 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. 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 Vakalatnama, while remaining absent. 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 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”.) 329 | P a g e

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ISSN 2455-4782 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 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,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 may 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 manmade 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 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. Order IX of the Code of Civil Procedure deals with the Non-appearance of the Parties and such default may have the effect of the dismissal of the suit or ex-parte decision by the Courts. Now, the law does not require the personal presence of the Parties unless especially required by the Court. The appearance of the pleader is a deemed presence of the litigant. However, there are instances wherein the cases are dismissed for the default caused due to the negligence of the Counsel. The disturbing feature of our present adversary legal system where the parties generally appearing through Advocates, the obligation of the Parties is to select the advocate, brief him, pay the fees 330 | P a g e

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ISSN 2455-4782 demanded by him and then trust the learned advocate to do the rest of the things. The party may, on the other hand, be a litigant who engages an advocate with the belief that his case will be duly represented. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can, rest assured that he has neither to go to the Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It cannot be decided whether such non-appearance is the cause of the negligence of the Advocate or the negligence of a litigant himself. However, every time, it becomes a responsibility of the Court to allow such applications for restoration or appeals only for the possibility of justice being denied to an innocent litigant. The Hon'ble Apex Court has discussed this aspect in the case of The Secretary, Department of Horticulture, Chandigarh and Anr. Vs. Raghu Raj1 and held that, "Even if there is default on the part of advocate in not appearing at the time of hearing, Appellant shall not suffer injustice." It was pleaded by one of the counsels that the appellant had engaged a counsel and were under the impression that the lawyer will take care of the case and appear when the appeal will be called out for hearing. It was observed that the counsel is duty bound to attend the case in Court or to make an alternative arrangement. Non-appearance in Court without `sufficient cause' cannot be excused. Such absence is not only unfair to the client of the advocate but also unfair and discourteous to the Court and can never be countenanced. At the same time, however, when a party engages an advocate who is expected to appear at the time of hearing but fails to so appear, normally, a party should not suffer on account of default or nonappearance of the advocate. It is true that no Court is obliged to adjourn a case because of the difficulty of a Counsel. In fact, it is the solemn duty of every Court to proceed with judicial business fixed for the day yet in an appropriate case where no fault lies at the door of litigant, Court should not be in a hurry to dismiss the case in default or for non-prosecution on account of absence of his counsel. The Court must be considerate while dealing with an application for recall of dismissal or ex-parte order if a justifiable

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2009 (1) ALT 38 (SC)

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ISSN 2455-4782 cause for non-appearance of counsel was made out, the simple reason being; ultimately, it would be the litigant who will have to suffer the consequences of the Order. Law always requires the test of reasonableness. Meaning thereby, the cause of non-appearance of the Advocate must be justifiable. It is the professional obligation of an Advocate to appear on behalf of his Client or make such alternate arrangements as necessary. But, if there is no sufficient reason and the Advocate by choice, omits to appear for a particular matter or before a particular bench, then is the innocent litigant to suffer injustice. The Hon'ble Apex Court has discussed this aspect in the case of Rafiq and Anr. v. Munshilal and Anr.2 it was submitted by one of the counsels that a practice had grown up in the Hon'ble High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular bench. It was observed, If any counsel does not want to appear in a particular Court, that too for justifiable reasons, professional decorum and etiquette require him to give up his engagement in that Court so that the party can engage another counsel. But, retaining the brief of his client and at the same time abstaining from appearing in that Court, that too, not on any particular day on account of some personal inconvenience of the counsel but as a permanent feature, is unprofessional .This practice can only be discouraged by rejecting such applications for restoration or appeals, as the case may be. However, the end result of every case should be justice. The Party who has shown faith in the judicial system must not be disappointed because of the default of his duly engaged Advocate. The Advocates Act and other rules of the Bar Council require an Advocate to argue the case of his Client in the best possible manner and keeping up highest professional standards. The Court observed, "What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If such appeals/ applications are rejected, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates before us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanor of his agent. The

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[1981] 3 SCR 509

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ISSN 2455-4782 answer obviously is in the negative. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. "Where neither party appears (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. In DAMU VS. VAKRYA3, in a suit, A sues B and C. A and C do not appear when the suit is called on for hearing, but B appears. The court makes an order dismissing the suit. As between A and B the order is one under Rule 8, so as to attract the applicability of Rule 9. But as between A and C, the order is one under the present rule, so that Rule 4 applies and not Rule 9.Where the trial court, in its order dismissing the suit for default, merely referred to the plaintiff’s absence and not to the defendant’s absence, the order must be construed to be one under Order 9, Rule 3. The court cannot dismiss the suit in total merely to penalize the plaintiff for his absence. Rules of procedure are to be so construed as to advance and not defeat the remedy. Mere non-mentioning in the order of absence of either party would not take it out of the purview of Rule-3.

CONCLUSION This scenario creates a very critical position in the justice delivery system. Where, on one hand, the Hon’ble Court is duty bound to dismiss the proceedings if sufficient reasons are not established which has become the need of time owing to the large number of cases pending at all stages, on the other hand the Court cannot deviate from the very own objective of the judicial system, i.e. Justice for all. The Court by taking a strict or technical view of the procedures prescribed cannot cause prejudice to the innocent party who has faith not only on the Advocate he has engaged but the ultimate faith in Judiciary that the Court, in no circumstances would cause anything to affect the rights of the Parties. This kind of situation necessarily calls for a new practice duly prescribed by law so that neither the innocent Party suffers due to the default or negligence of an Advocate but the Courts can adopt the procedures meant for doing substantial justice keeping in mind the

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1920 ILR 44 Bom767, 56 IC 455

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ISSN 2455-4782 Right to speedy trial in every case, be it Civil or Criminal so that the faith in the Indian Judicial system remains alive.

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