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Appearance and Non-Appearance of Parties
The judicial system in India has been developed on the foundation of common law jurisprudence. The courts in India followed the principle of natural justice, which requires that both parties to a suit be given equal opportunity to prove their case in their favor. However, the court (judge) has to be neutral in all respects towards both parties. It is very important for the court to observe and apply the principle of natural justice in all the proceedings in a suit. So to give effect to the rule of natural justice, it is incumbent upon the court to call the opposite party to appear and to answer the suit. So a notice of the court along with a copy of the suit is sent to the opposite party (defendant) through the postal service (mail) so as to communicate to the defendant information about the institution of the suit against him and the date fixed for hearing, along with a description of the court and its place of sitting. The defendant is directed through the court notice to appear on the date and time mentioned in the notice and to answer the suit by way of written reply, called a "written statement," within 30 days of the receipt of the notice.
Provisions for Service of Summons On the Defendant
Important provisions related to the service of summons and notices are provided under Sections 27, 28, and 29 read with the rules of Order 5 of the Code of Civil Procedure 1908.
In cases where the defendant resides in the same state where the suit has been instituted.
Section 27 of the code provides that after the institution of the suit, summons are to be issued to all the defendants, directing them to appear and answer the claim. The summons may be served in the manner prescribed within 30 days from the date of institution of the suit.
In cases where the defendant resides in the other state and the suit has been instituted in other state.
Section 28 of the Code of Civil Procedure, provides for the service of summons where the defendant resides in another state. So in that case, the summons may be sent to the court having jurisdiction over the local limits of the area where the defendant resides for service upon the defendant in the manner prescribed by rules in force in that state. The court to which summons have been sent shall, upon the receipt thereof, deal with it as if it had been issued by such court and caused to be served upon the defendant, and then shall return the records of the proceedings undertaken in the service to the court that had originally issued the summons.
In cases where the defendant resides in India and the suit has been instituted in a foreign court.
Service of summons issued by foreign courts in India is provided for in Section 29 of the Code of Civil Procedure, 1908. It provides that summons and other processes issued by any court situated in the territory to which the Code of Civil Procedure, does not apply, may be sent to the courts in the territories to which this code applies and be served in the same manner as if the summons issued by that court had been served.
In cases where the suit has been instituted in India and the defendant resides in a foreign country.
In the case where the suit has been instituted in India and the defendant to be served resides in any foreign country, the provisions of Rule 25 of Order V of the Code of Civil Procedure would apply. And for service, the summons shall be addressed to the defendant at the place where he is residing and sent to him by post or in such other manner as may be approved by the High Court, or through fax, email, or any other means as may be provided by the rules made by the High Court.
Rule 26 and Rule 26A of Order V provide for service of summons through a political agent or a court situated in a foreign country. In this case, the central government, by notification in the official gazette, declares in respect of the foreign territory that summons or other process is to be served upon the persons (defendants) residing in that territory through the officer of the government of that foreign territory. The summons to be served in that foreign territory shall be sent to that officer for service and other compliance.
Provision for the Attendance of the Parties
An important stage in the suit proceedings is the first date of hearing after service of summons upon the defendant. On this date, if the service of summons has been duly effected, the following cases may arise:
Case 1. When both parties appear
In cases where both parties have appeared, the court will proceed with the suit proceedings and order the defendant to file a written statement in response to the complaint.
Case 2. When none of the parties appears
If neither party appears, the court will check its records to determine whether the summons was served on the defendant. The court may make an order that the suit be dismissed.
Case 3. When only the plaintiff appears but the defendant is absent
In cases where only the plaintiff appears and the defendant does not, rule 6 of order 9 of the Code of Civil Procedure states that the court shall examine the case records and, based on its findings, may take any of the courses listed in rule 6 of order 9 of the Code of Civil Procedure. In this case, if from the records it is proved that the summons have been duly served upon the defendant, the court may make an order that the suit be heard ex parte. In other cases, the court shall issue fresh summons, to be served upon the defendant once again.
Case 4: When only the defendant appears but not the plaintiff
In cases where only the defendant appears and the plaintiff does not, Rule 8 of Order 9 of the Code of Civil Procedure states that the court must make an order dismissing the suit, unless the defendant admits the claim or a portion of the claim sought in the suit. And if the defendant admits the claim, the court shall pass a decree against the defendant upon such admission, and if the defendant admits only a portion of the claim, the court shall dismiss the suit with regard to the claim not so admitted. The suit dismissed under this provision is called "dismissed in default.
Case 5: Where there is more than one plaintiff in a suit
In cases where several people have been impleaded as plaintiffs in a suit and one or more of them did not appear while at least one of them did on the date of hearing the suit, Rule 10 of Order 9 of the Code of Civil Procedure provides that the Court may allow the suit to proceed as if all the plaintiffs had appeared, or make such an order as it thinks fit.
Case 6: Where there is more than one defendant in a suit
In cases where there are several persons who have been impleaded as defendants in a suit and one or more of them did not appear while at least one of them appeared on the date of hearing the suit, the provision of Rule 11 of Order 9 of the Code of Civil Procedure, provides that the suit shall be proceeded with and the court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear.
Case 7: In this case, the court ordered a party to the suit to appear in court, but despite that order, the party did not appear.
In this case, the court has ordered the party, either a plaintiff or a defendant, to appear in person. If such a party does not appear in person, or show sufficient cause to the satisfaction of the court for his nonappearance, in that case the court may make an appropriate order subject to the provisions of this code applicable to him as a party in this suit. So if the party is the plaintiff, his suit may be ordered to be dismissed, or if the party is the defendant, the suit may be ordered to be heard ex parte.
The importance of making an appearance in court has been discussed here. It is clear from the discussion that the parties to the suit, should be very careful in ensuring their presence in court on the day when the suit is fixed for hearing. Otherwise, they should be prepared to bear the consequences of their nonappearance.
Frequently Asked Questions
Q1. Which provision of the Code of CPC would apply, if none of the parties to the suit appear in the case when it is called for hearing?
Ans: The suit of the plaintiff may be ordered to be dismissed as per the provisions of Rule 3 of Order 9 of the Code of Civil Procedure, 1908.
Q2. Which provisions of the CPC provide for the service of summons in cases where the suit has been instituted in India and the defendant resides in a foreign country?
Ans: The provision contains in Rule 25, 26 and 26A of order V of CPC 1908 would apply for service of the summons in case where the suit has been instituted in India and the defendant resides in foreign country.
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