APPEARANCE OF PARTIES AND CONSEQUENCE OF NONAPPEARANCE
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
Courthouse
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.
2. Dismissal of suit where summons not served in consequence of plaintiff's failure to pay
costs. 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 courtfee
or postal charges (if any) chargeable
for such service, the Court may make an order that the suit be dismissed:
Provided that no such order shall be made although the summons has not been served upon the
defendant, if 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.
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.
4. Plaintiff may bring fresh suit or Court may restore suit to file. __(1)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, and if he satisfies the Court that there was sufficient cause
for his not paying the courtfee
and postal charges (if any) required within the time fixed before the
issue of the summons, or for his nonappearance,
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.
"(2) The provision of section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to applications
under subrule
(1)".
5. Dismissal of suit where plaintiff, after summons returned unserved, fails for three months
to apply for fresh summons.__ 1[(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 three months 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 1
Subs. by the Code of Civil Procedure (Amdt.) Act, 1920 (24 of 1920), s.2, for the original subrule
(1).
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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 which 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.
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, then (
a) When summons duly served. if it is proved that the summons was duly served, the Court may
proceed ex parte 1[and pass decree without recording evidence;].
(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.
7. Procedure where defendant appears on day of adjourned hearing and assigns good cause
for previous nonapperance.
Where the Court has adjourned the hearing of the suit exparte,
and the
defendant, at or before such hearing, appears and assigns good cause for his previous nonappearance,
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.
8. Procedure where defendant only appears. 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.
9. Decree against plaintiff by default bars fresh suit.__ (1) Where a suit is wholly or partly
dismissed under rule 8, the plaintiff shall be pecluded from bringing a fresh suit in respect of the same
cause of action. But he may apply for an order to set the dismissal aside, and if he
1Ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.
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satisfies the Court that there was sufficient cause for his nonappearance
when the suit was called
on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or
otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the
opposite party.
1(3) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to
applications under subrule
(1).].
10. Procedure in case of nonattendance
of one or more of several plaintiffs. Where there are
more plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may,
at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if
all the plaintiffs had appeared, or make such order as it thinks fit.
11. Procedure in case of nonattendance
of one or more of several defendants. Where there are
more defendants than one, and one or more of them appear, and the others do not appear, the suit shall
proceed, 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.
12. Consequnece of nonattendance,
without sufficient cause shown, of party ordered to
appear in person. Where a plaintiff or defendant , who has been ordered to appear in person, does not
appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he
shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants,
respectively, who do not appear.
Setting aside Decree Ex Parte
2[13. Setting aside decree exparte
against defendant.__ (1)] In any case in which a decree is
passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an
order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was
prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court
shall make an order setting aside the decree as against him upon such terms as to costs, payment into
Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such
defendant only it may be set aside as against all or any of the other defendants also[:]3
4[Provided further that no decree passed ex parte shall be set aside merely on the ground of any
irregularity in the service of summons, if the Court is satisfied, for reason to be recorded, that the
defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer
the claim.]
1 New subrule
(3) added by the Code of Civil Procedure (Amdt.) Ordinance, 1980 (10 of 1980), s. 14.
2 Rule 13 renumbered
as subrule
(1) of that rule by the Code of Civil Procedure (Amdt.) Ordinance, 1980 (10 of 1980), s. 14.
3 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch., for fullstop.
4 Proviso added ibid.
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1[(2) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to
applications under subrule
(1).].
14. No decree to be set aside without notice to opposite party. No decree shall be set aside on
any such application as aforesaid unless notice thereof has been served on the opposite party.