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APPEARANCE OF THE PARTIES AND EFFECT OF NON APPEARANCE/ EXPARTE DECREE[1]

Table of Contents

QUESTION BANK

Q.1. State provisions as to the appearance of the parties and consequences of non-appearance.

Q.2. What are the modes of service of summons?

Q.3. What are the rules as to the issue of summons?

SHORT NOTES

1) Setting aside ex parte decree.

2) Consequences of non-appearance of the parties.

3) Modes of service of summons.

4) Rules as to issue of summons.

SYNOPSIS

GENERAL-
RULES AS TO APPEARANCE AND EFFECTS OF NON-APPEARANCE OF PARTIES-

1) Appearance of parties (R. 1)-

2) Where neither party appears (R. 3)-

3) Where only the plaintiff appears (R. 6, 7 & 10)-

4) Where only the defendant appears (R.8 & R. 11)-

5) Where a summons is not served (R. 2, 5 & 6)-

6) Remedy to plaintiff on dismissal of a suit (R. 4)-

7) Setting aside ex-parte decree (R. 13)-

a) Remedies to the defendant against ex parte decree-
b) Setting aside ex parte decree (R. 13)-
c) Notice to opposite party (R. 14)-

8) Form of summons.

III. MODES OF SERVICE OF SUMMONS ON DEFENDANT (O. V)-

A] AS TO SUMMONS

B]. RULES AS TO ISSUE OF SUMMONS-

1) Summons to the defendant (S. 27 O. V, R. 1)-

2) Appearance of the defendant (R. 2)-

3) How is it drawn? (R. 2)-

4) Personal attendance of defendant or plaintiff (R. 3 & 4, Ss. 132 & 133)-

5) Fixing day for the appearance of the defendant (R. 6)-

6) Summons to the odder defendant to produce documents relied on by him (R. 7)-

7) Summons for final disposal (R. 8)-

C]. RULES AS TO MODES OF SERVICE OF SUMMONS (Rr. 9 to 30).

1) Personal or direct service-

Rules as to personal service of summons-

2) Service by Court (R. 9)-

3) Service of summons by the plaintiff (R. 9 A)-

4) Substituted service (R. 20)-

5) Service by post-

GENERAL-

“No person shall be condemned unheard” (i.e. every party to the suit must be given an opportunity of hearing) is the important principle of natural law. O. IX incorporates this principle. It provides for the appearance of the parties and the consequences of the non-appearance of the parties.

RULES AS TO APPEARANCE AND EFFECTS OF NON-APPEARANCE OF PARTIES-

1) Appearance of parties (R. 1)-

The parties to the suit should appear personally or through their pleader on the day fixed in the summons. The defendant must appear to answer the complaint. The court then hears the matter after receiving the defendant’s answer unless the hearing is adjourned to a future date.

2) Where neither party appears (R. 3)-

Where neither party appears when the suit is called on for a hearing, the Court can order that the suit be dismissed.

3) Where only the plaintiff appears / Ex-parte proceeding (R. 6, 7 & 10)-

Where the plaintiff appears, and the defendant does not appear, the plaintiff has to prove service of summons on the defendant. Once the service of summons is proved, the Court may proceed ex parte[2] against the defendant and may pass a decree in favour of the plaintiff (R. 6). Such a decree is called an ex-parte decree.

However, where the Court had adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns the good reason 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 plaint (R. 7).

According to R. 10, where two or more plaintiffs and one or more of them appear, and the others do not, the Court may permit the suit to proceed as if all the plaintiffs had appeared.

4) Where only the defendant appears (R.8 & R. 11)-

Where the defendant appears, and the plaintiff does not appear, and the defendant does not admit the plaintiff’s claim, the Court shall pass an order dismissing the suit. However, if the defendant admits the plaintiff’s claim as a whole or in part, the Court will pass a decree against the defendant upon such admission.

Where there are two or more defendants and one or more of them appear, and the others do not appear, the Court may permit the suit to proceed as if all the defendants had appeared (R. 11).

5) Where a summons is not served (R. 2, 5 & 6)-

Where on the day fixed for the hearing, it appears that the summons was not properly served upon the defendant owing to the plaintiff’s failure to pay the Court fee, postal charges, or copies of the complaint, the Court may dismiss the suit (R. 2) or order the plaintiff to pay costs (R. 6 (2).

Where the plaintiff fails to apply for a fresh summons for seven days after the summons on the defendant is returned un-served, the Court shall dismiss the suit. However, if the plaintiff satisfies the Court with sufficient cause for his failure, the Court may extend the time for the service of summons (R. 5).

Where it is not proved that the summons is duly served on the defendant, the Court will direct a fresh summons to be issued and served on the defendant (R. 6 (1) (b).

Suppose 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. In that case, 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 (R. 6 (1) (c).

6) Remedy to plaintiff on dismissal of a suit (R. 4)-

Where the suit is dismissed against the plaintiff as mentioned above, he may-

(i) bring a fresh suit (subject to the law of limitation), or

(ii) apply for setting aside dismissal on sufficient grounds.

7) Setting aside ex-parte decree (R. 13)-

As discussed above, where the plaintiff appears, and the defendant does not appear when the suit is called out for hearing, and if the defendant is duly served, the Court may hear the suit ex parte and pass a decree against him. In other words, if a defendant does not appear before the Court even after service of the summons to him, the Court will proceed ex-parte, and if the plaintiff proves his case, the Court will pass the decree accordingly.

a) Remedies to the defendant against ex-parte decree-

The following remedies are available to the defendant against whom an ex-parte decree has been passed:

i) to apply for setting aside ex-parte decree to the same Court (under R. 13),
ii) to prefer an appeal against such decree (S. 96 (2).

iii) to prefer review (O. 47)

iv) to file a fresh suit on the grounds of non-service of summons or fraud.
b) Setting aside ex parte decree (R. 13)-

If the defendant wishes to get an ex-parte decree set aside, he will have to put up an application stating sufficient grounds for it. If the defendant is able to satisfy the Court that either the summons was not duly served or, due to any other sufficient reason, he could not appear when the suit was called on for hearing, the Court may set aside the decree passed against him and appoint a day for hearing. While setting aside ex parte decree, the Court may order for payment of appropriate costs.

Proviso to R. 13 provides that if such ex-parte decree which is prayed to be set aside cannot be set aside against the applying defendant only (if there are more defendants against whom the order of ex parte decree has been passed), then the Court may set it aside against all those defendants.

As per R. 6, an ex-party decree can be passed if, despite the service of summons on the defendant, he does not appear. Therefore, if the service of summons is not proved on the defendant, the ex-parte decree can not be passed or may be set aside if already passed. However, proviso to R. 13 provides that the Court shall not set aside an ex parte decree merely on the ground of irregularity in service of summons.

c) Notice to opposite party (R. 14)-

No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.

III. MODES OF SERVICE OF SUMMONS ON DEFENDANT[3] (O. V)-

A) As to Summons-
V, deals with the modes of issue and service of summons on the defendant, whereas O. 16 deals with a summons to witnesses. It is an important natural principle that ‘no person should be condemned unheard,’, i.e. another party to the suit is also to be heard. Therefore, when the plaintiff files a suit against the defendant, it is mandatory for the Court to call or inform the defendant to answer the plaintiff’s plaint. Such calling or informing the defendant is called a ‘summons’. The word ‘summons’ is not defined in the Code; however, it is to demand the presence of or call upon a person to appear. According to Dictionary, a summons is a document issued from the office of a Court of justice, calling upon the person to whom it is directed to attend before a judge or officer of the Court for a certain purpose.

B]. RULES AS TO ISSUE OF SUMMONS-

1) Summons to the defendant (S. 27 O. V, R. 1)-

When a suit is duly filed by the presentation of a plaint, the Court must issue a summons to the defendant, calling upon him to appear on a day specified therein and answer the claim of the plaintiff within thirty days from the institution of the suit by filing a written statement. However, no summons is to be issued if, at the time of presentation of the suit, the defendant is present and admits the suit.

2) Appearance of the defendant (R. 2)-

The defendant to whom the summons is issued may appear (a) in person, (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions.

3) How to be drawn? (R. 2)-

Every summons is to be signed by the judge or such officer appointed by him and shall be sealed with the court’s seal and must be accompanied by the plant.

4) Personal attendance of defendant or plaintiff (R. 3 & 4, Ss. 132 & 133)-

Where the Court sees reasons to require the personal appearance of the defendant, the summons shall order him to appear in person in Court on the day specified therein.

However, no party shall be ordered to appear in person-

a) within the local limits of the Court’s ordinary original jurisdiction or
b) without such limits but at a place (i) less than fifty miles or (ii) less than 200 miles if means of public conveyance is available like railway or steamer, etc.) (R. 4).
c) if a woman does not appear in public (S. 132).
d) who is entitled to exemption under the Code, like the President, the Vice-President, the Speaker, the Ministers of the Union, etc. (R. 133).

5) Fixing day for the appearance of the defendant (R. 6)-

The court has to fix a day for the defendant’s appearance, taking into consideration the court’s current business, the defendant’s place of residence, the time necessary for the service of the summons, and sufficient time to enable the defendant to appear and answer on such a day.

6) Summons to order the defendant to produce documents relied on by him[4] (R. 7)-

The summons to appear and answer shall also order the defendant to produce all documents or copies he intends to rely on in support of his case.

7) Summons for final disposal (R. 8)-

Where the summons is for final disposal of the suit, it shall also direct the defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence he intends to rely in support of his case.

8) Form of summons[5].

C]. RULES AS TO MODES OF SERVICE OF SUMMONS (Rr. 9 to 30).

There are the following modes of service of summons on the defendant, viz.

1) Personal or direct service[6]–

Service of summons by delivering or tendering a copy thereof signed by the judge or such officer as he appoints on this behalf and sealed with the seal of the Court is called direct or personal service (R. 10).

Rules as to personal service of summons-

a) Whenever it is practicable, the summons shall be served on the defendant in person or on his authorised agent (R. 12).
b) Where there are two or more defendants, summons should be served on each defendant (R. 11).
c) where the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence, and there is no likelihood of his being found at the residence within a reasonable time, and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, but not on the servant. (R. 15)
d) in a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, is good service (R. 13).
e) In a suit for immovable property, service may be made on the agent in charge of the property if the defendant cannot be personally served and has no agent empowered to accept the service (R. 14).
f) Where the defendant refuses to accept service or cannot be found (R. 17 & 19).

If the defendant or his agent –

i) refuses to sign the acknowledgement or
ii) The serving officer, after due diligence, cannot find the defendant or

iii) there is no agent appointed to accept the summons or

iv) there is no other person upon whom service of summons can be made,

-the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and return the original to the Court, with a report stating (i) that he has affixed copy (ii) the circumstances under which he affixed a copy of summons (iii) by whom the house was identified (R. 17). The Court after getting above report may on the affidavit of serving officer or his examination on oath and after further inquiry as it thinks fit, declare that the summons is duly served, or order such service of summons (re-issue) as it thinks fit. (R. 19).

2) Service by Court (R. 9)-

Where the defendant resides within the jurisdiction of the Court in which the suit is instituted or has an authorised agent residing within that jurisdiction, the summons shall be served through a Court officer or approved courier service upon him.

Summons can also be served by registered post, speed post, courier service, fax, e-mail, or by any other means permitted.

Where the defendant is residing outside the jurisdiction of the Court, the summons shall be served through an officer of the Court within whose jurisdiction the defendant resides.

The court treats refusal of acceptance of summons as a valid service of summons.

Where the summons is properly addressed, prepaid, and duly sent through the registered post, there will be a presumption of valid service in the absence of an acknowledgement slip.

3) Service of summons by the plaintiff (R. 9 A)-

In addition to the above means of service of summons, the Court may permit the plaintiff to serve summons upon the defendant.

4) Substituted service[7] (R. 20)-

Service of summons by means other than mentioned above is called a ‘substituted service.

20 provides that where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any reason the summons cannot be served in an ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in Courthouse, and also upon some conspicuous part of the house in which the defendant is known to have last resided or carried on business or personally worked for gain or in such other manner as the Court thinks fit.

The Court may order service of summons to be effected by publication in a local newspaper, which shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.

The substituted service has the same effect as the personal or direct service of summons.

5) Service by post-

The Court may, in addition to, and simultaneously with the issue of summons for service, also direct the summons to be served by registered post acknowledgement due, addressed to the defendant or his agent empowered to accept the service, at the place where the defendant or his agent actually and voluntarily resides or carries on business or personally works for gain. (In fact, the Code of Civil Procedure Amendment Act 1999 has omitted the provision of “service by post”; however, some states, including Maharashtra, West-Bengal, and Tamil Nadu, have retained the provision with some changes)

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[1] पक्षकारांची उपस्थिती आणि अनुपस्थितीचे परिणाम व एकतर्फी हुकूमनामा, [पार्टियों की उपस्थिति और अनुपस्थिति और एकतरफा डिक्री का प्रभाव,]

[2] एकतर्फी [एकतरफा,]

[3] प्रतिवादीस समन्स बजावणीची पध्दत [ प्रतिवादी को सम्मन की विधि,]

[4] प्रतिवादी ज्या दस्तऐवजावर विसंबून राहिला असेल असे दस्तऐवज हजर करण्याचा आदेश देण्यासाठी समन्स] [ प्रतिवादी द्वारा भरोसा किए गए दस्तावेजों के उत्पादन का आदेश देने के लिए सम्मन]

[5] IN THE COURT OF CIVIL JUDGE Jr. DIVISION PUNE AT PUNE.

Regular Civil Suit No- 27/2016

To,

Ashok Sahebrao Jadhav.

Age- 55 Years. Occup- Farmer.

R/o- Chinchwad, Pune.

Whereas, Shri Ramrao Bajirao Pawar Age- 60. Years. Occup- Farmer. R/o- Chinchwad, Pune, has instituted a suit against you for recovery of money lent, you are hereby summoned to appear in this Court in person or by a pleader on the 25^th September of 2016, at 11 O’ clock in the noon, to answer the same, failing which the suit/application will be disposed of ex parte.

Issued under my hand and the seal of the Court, this 1^st Oct. of 2016.

Judge

[6] व्यक्तिगत किंवा थेट बजावणी [सम्मन की व्यक्तिगत या सीधी तामील,]

[7] पर्यायी बजावणी [ वैकल्पिक नाटक]