Consequences of non-appearance and setting aside of ex-parte proceedings/decree .pptx

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1. Consequences of non-appearance and setting aside of ex-parte proceedings/decree

2. Table of contents 01 Introduction 05 Conclusion 03 Consequences of Non-Appearance 04 02 Meaning and Significance of Appearance Setting aside decree ex-parte

3. It is an essential requirement for both plaintiffs and defendants. Appearance in legal proceedings refers to the act of presenting oneself before the court or tribunal. Failure to appear can have severe consequences. 01 Introduction Following are some Main topics covered in this Guide. Meaning and significance of appearance. Explore case law examples. Factors influencing appearance. The legal procedures and remedies for non-appearance

4. 4 Meaning and Significance of Appearance 02 Chapter Parties to appear on day fixed in summons for defendant to appear and answer. Where neither party appears, suit to be dismissed. Plaintiff may bring fresh suit or Court may restore suit to file. Procedure when only plaintiff appears. Procedure where defendant appears on day of adjourned hearing and assign good cause for previous non-appearance. Procedure where defendant only appears. Decree against plaintiff by default bars fresh suit. Procedure in case of non-attendance of one or more of several plaintiffs. Procedure in case of non-attendance of one or more of several defendants. Consequence of non-attendance without sufficient cause shown, of party ordered to appear in person.

5. 5 Meaning and Significance of Appearance 02 Chapter It is crucial for the proper administration of justice. It ensures that all parties have an opportunity to present their arguments, evidence, and defenses, enabling a fair and balanced hearing. Appearance can be made in person or through legal representation. The primary purpose of appearance is to establish the presence and active participation of the parties.

6. Consequences of Non-Appearance 03 it can have significant consequences on the outcome of the case. Non-appearance may result in the dismissal of the case, the issuance of an ex-parte judgment, or the imposition of penalties and costs. Following are some consequences which highlight the importance of timely and active participation in legal proceedings to safeguard one's rights and interests

7. Consequences of Non-Appearance 03 Parties to appear on day fixed in summons for defendant to appear and answer. The parties shall be in attendance at the Court-house in person or by their respective pleaders. If the defendant does not appear in spite of service, he can be proceeded under O IX, Rule 6, [1982 CLC 1528] and if the plaintiff fails to appear, there is no bar to the Court to exercise his power under Rule 8, O IX of the Code”. [PLD 1981 Pesh 151].

8. Consequences of Non-Appearance 03 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. “Rule 3 of O IX provides that where neither party appears when the suit is called for hearing the Court may make n order that the suit be dismissed”. [ 1993 CLC 378].

9. Consequences of Non-Appearance 03 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. The provision of section 5 of the Limitation Act, 1908 ( IX of 1908) shall apply to application under sub-rule (1)”].

10. Consequences of Non-Appearance 03 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, and if the satisfies the Court that there was sufficient case for his not paying the court-fee and postal charges (if any) required within the time fixed before the issue of the summons, 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. Lahore High Court, Lahore. [(2) The provision of section 5 of the Limitation Act, 1908 ( IX of 1908) shall apply to application under sub-rule (1)”]

11. Consequences of Non-Appearance 03 Procedure when only plaintiff appears: Order IX Rule 6, C.P.C provides that where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then if it is proved that Summons is duly served the court may proceed ex- parte and pass decree without recording evidence. If it is not proved that Summons is duly served or served in sufficient time, the court shall direct a second summons to be issued and served on the defendant.

12. Consequences of Non-Appearance 03 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. Order IX, Rule 7 C.P.C. had provided remedy against ex- parte proceedings as the defendant, who had been proceeded against ex- parte , no doubt remained a party to the proceedings, as he could not be relegated to the position , he would have occupied, had he appeared. On cause being shown, ex- parte proceedings could be set aside on nominal costs. [2009 CLC 1039]

13. Consequences of Non-Appearance 03 Procedure where defendant only appears: Rule 8 order IX postulates that 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. [1991 MLD 71] 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 par only of the claim has been admitted, shall dismiss the suit so far as it related to the remainder. A suit cannot be dismissed when either plaintiffs claim wholly or partly admitted by defendant or when plaintiffs presence is not required. [PLD 2013 AJ&K 27]

14. Consequences of Non-Appearance 03 Procedure where defendant only appears: Rule 8 order IX postulates that 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. [1991 MLD 71] 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 par only of the claim has been admitted, shall dismiss the suit so far as it related to the remainder. A suit cannot be dismissed when either plaintiffs claim wholly or partly admitted by defendant or when plaintiffs presence is not required. [PLD 2013 AJ&K 27] High Court Amendments Lahore to sub-rule (1), add the following provision: “ Provided that the plaintiff shall not be precluded from bringing another suit for redemption of a mortgage, although former suit may have been dismissed for default.” According to O. IX, Rule 9 of the Code if a suit dismissed in default, fresh suit on the same cause of action does not lie. [ PLD 1987 Lah. 574] But where cause of action is distinct or independent, [PLD 1959 S.C. (Pak) 356] or where cause of action is recurring dismissal of earlier suit would not bar fresh suit. [1993 MLD 1050; PLD 1983 S.C 243]

15. Consequences of Non-Appearance 03 Procedure in case of non-attendance of one or more of several plaintiffs:: Order IX, Rule 10, C.P.C. provides that there are more plaintiffs than one, and one or more of them appear, Court has discretion to proceed at the instance of plaintiff present in Court. Where plaintiff is present along with his counsel insisting that suit should be proceed in terms of O.IX, R.10 C.P.C., it would be illegal on the part of Court to dismiss suit for non-prosecution to the extent of said plaintiff. [2007 CLC 553]

16. Consequences of Non-Appearance 03 Procedure in case of non-attendance of one or more of several defendants: Under O IX, Rule 11 of the Code 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 think fit with respect to the defendant who do not appear. Trial Court is not competent to order ex- parte decree against non-appearing defendant on admission of co-defendant. [1991 CLC Note 71 (p.55)

17. Consequences of Non-Appearance 03 Consequence of non-attendance 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. Rule 12 relates to personal appearance of parties; it is attracted where the parties are specifically ordered to appear in person. [PLS 1976 Kar. 526] Although it is the discretion of the Court to call personal attendance but such order should predetermine the necessity of personal attendance.

18. Consequences of Non-Appearance 03 Decree against plaintiff by default bars fresh suit: Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded 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 satisfies the Court that there was sufficient cause for his non-appearance hen the suit was called on for hearing the Court shall make an order setting aside the dismissal upon such terms as to cost. No order shall be under this rule unless notice of the application has been served on the opposite-party.

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