Order 9 of The Civil Procedure Code 1908: The Quick review

Order 9 of The CPC 1908 is one of the most used Oder in the Civil Procedure. It is also a mature Order in terms of case law. The Heading Tag for Order 9 is “Appearance of Parties and Consequence of No-Appearance.” The word “Consequences” id directing to the word Dismissal of a Case. I am not giving full review but only to remember what is order 9 of CPC is? I will make a full review of this order later.

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Snapshot Order 9 of CPC:

1. The Defendants who have been received Summons must appear before the court on the day of fixed.
2. When Plaintiff fails to pay costs for summons and due to costs summons not duly served that will dismiss the suit.
3. Where neither party appears before the court, suit to be dismissed.
4. When a suit is dismissed under rule 2 and 3, the plaintiff may bring a fresh suit or court may restore the suit to the original file.
5. When Summons returned unserved, fails for three months to apply for a fresh summons, the suit dismissed.
6. when the plaintiff only appears on for hearing three things can happen (i) Summon duly served: the court may proceed ex parte (ii) Summons not duly served: The shall direct a second summons to be issues and server on the defendant. (iii) Summons served but not due time: the court shall postpone the hearing.
7. The Court adjourned the hearing of the suit ex parte before such hearing defendant appears and assigns good cause for non-appearing court can impose cost or direct to answer the suit.
8. Where the defendant only appears, the plaintiff does not appear: the court shall dismiss the suit.
9. Where a suit is wholly or partly dismissed under rule 8, the plaintiff may apply for set the dismissal aside. 9(A): Plaintiff may apply within 30 days for set the dismissal aside and the court imposes a cost not exceeding 1000 tk and restore the suit.
10. Procedure in case of non-attendance of one or more of several plaintiffs.
11. Procedure in case of non-attendance of one or more of several defendants.
12. Consequences of non-attendance, without sufficient cause shown, the court may order appear in person.
13. Setting aside decree ex parte against defendants. 13(A): Directly setting aside ex parte decree within 30 days may impose cost not exceeding 1000 tk.
14. No decree to be set aside without notice to the opposite party.
15. Restoration of a suit where the dismissal is setaside

Case Law On Order 9 Of The Civil Procedure Code 1908:

Those are some most important Case Law About Order 9 Of the CPC. I am sharing with you for the Education purpose Learn Law, Learn Order 9 Become more Dynamic About Your Case. Enjoy Those Case Laws.

1. Rule-13: As the suit has been restored on payment on the compensatory cost to petitioners, it is not a fit case for interference. | 49 DLR(AD) 150
2. Rule-13: With Sec.-5 of the Limitation Act: That the application under Order 9 rule-13 of the code of the Civil Procedure was not barred by limitation in the facts of this case as the limitation is to be counted from the date of knowledge of defendant No:-8 under Article-164 of the Limitation Act as the summons was not duly server upon her. … …. ….. …. .. .. . | 2 ADC 486, 1931 Pat 204, 10 Pat 516, 12 Pat(LT)493, 13 MLR 360, 10 MLR(AD) 350, 10 MLR 117, 9 MLR(AD) 158, 57 DLR 234, 36 BLD 476
3. Rule-13: Ex-pate Decree by Subpressing of Summons: Decree fraudulently obtained is nullity .. … … … .. .. the decree was obtained and when such fraud and deceit is established a decree has no existence in the eye of law and it must be set aside. | 32 DLR(AD) 167, 10 BLD(AD) 44
4. Exparte proceeding can be ordered only when there is absence on the day fixed. | 16 DLR(SC) 115
5. Rule-9: In Execution: It is now settled law that the provision of Order 9 R-9 does not apply to execution proceedings. | 13 DLR 713
6. Rule-13: Defendant not entitled to a notice of the date of next hearing when the decree had been set aside at his instance. | 17 DLR 310, 2 ADC 143
7. Rule-13: Plaintiff not to suffer for his pleader’s default: Pleader or pleader’s clerk not informed the client in time– Dismissal of the suit- Client not being timely informed constitutes sufficient cause, Under this order and rule. | 18 DLR 481, 30 DLR 331, 58 DLR 277, 6 BLD(HCD) 152, 28 DLR(SC) 57, 28 DLR(AD) 158, 17 DLR(SC) 487, PLD 1963 56
8. Rule-13: In Pre-emption: No application for setting aside an ex parte order under Order 9 rule -13 will lie in the pre-emption case unless the application is a co-sharer in respect of the property. | 26 DLR 359, 8 BLC 155Contradictory: 8 BLC 144
9. Rule-13: With Sec- 151 of C.P.C.: Lawyer engaged in HC — Sufficient cause for setting aside ex parte decree. | 34 DLR 142
10. Rule-13 : Service summons not duly served — good ground for setting aside ex parte decree. | 35 DLR(AD) 163, 6 DLR 153, 13 MLR 48, 9 BLC 411, 10 BLC(AD) 153, 47 DLR 307, 4 BLD(AD) 83, 5 BLD(HCD) 126, 10 BLD(HCD) 151, 3 XP 12, 4 XP(AD) 21
11. Rule-1-14: After the preliminary decree, a suit cannot be dismissed for default. | 1924 PC 198, 29 CWN 391
12. The plaintiff must prove his case though ex parte. | 39 CLJ 279, 1924 Cal 806, 81 IC 867, 48 DLR 208
13. Rule-2: When the processing fee is timely filed, the suit cannot be dismissed for non-service. | 4 Lah.L.J. 71, 1922 Lah 63, 67 IC 945
14. Rule-4: Plaintiff may bring a fresh suit of applying for restoration. | 96 IC 187, 1926 ALL 678
15. Rule-8: When the sole plaintiff dies: Suit dismissed for non-appearance of plaintiff owing to the fact of death not being known to the court, the court has inherent power U/S-151 of C.P.C. to rectify the mistake. | 25 ALL 331, 41 IC 151 PC
16. Rule-9: On dismissal of the suit under Order 9 rule-8, the plaintiff’s remedy is — (i) to apply review U/S-114 of the C.P.C. (ii) to apply under order 9 rule-9 within 30 days. | 2 CWN 318, 13 DLR 115 — Contradictory: 1 PAT LJ 547, 46 Bom 839
17. Rule-9: Application Under Order 9 R-9 must be disposed of on evidence. | 22 CWN 671, 42 IC 649, 1925 Mad 774
18. Rule-13 : Court may set aside exparte decree under inherent power. | 1950 Pat 497, 1951 Nag 216, 1953 Bom 109 –>–>: Contradictory: Court cannot set aside exparte decree U/S-151. | 2 LNJ 548, 62 CLJ 268, 34 CWN 222, 54 CWN 110, 48 CWN 415, 39 CWN 894
19. Rule-13: As against an ex parte decree aggrieved party has three remedies — (i) he makes either makes an application under Order 9 R-9 or R-13, (ii) he may appeal from the decree, (iii) or apply for a review of the judgment. | 1929 Cal 322, 8 BLC 411, 12 BLD(AD) 1
20. Rule-9 :Pre-emption: The Rule-9 of Order 9 will applicable to restoration of pre-emption case dismissed for default. | 13 MLR(AD) 19, 59 DLR(AD) 212
21. Rule-13: Illness of Petitioner: Suit dismissed– The examination of Doctor and M.C. must be needed to restore the main case. | 8 BLC(AD) 160, 10 BLD(AD) 242
22. Rule-13: The petitioner must have proof that he was prevented by sufficient cause from appearing when suit was hearing — Not restored. | 9 BLC(AD) 254, 9 BLC 411, 50 DLR 174, 1 ADC 107
23. Rule-13: When negligence occurred by the defendant, the defendant is not entitled to the relief prayed for .. … …. …. . | 62 DLR 449
24. Rule-6: In order to succeed in his case, contested or otherwise, the plaintiff must prove his own case — the weakness of the defendant’s case is no ground for passing a decree in favor of the plaintiff. | 48 DLR 208
25. Rule-2,3,4: After the restoration of a suit to its original file and number a fresh notice upon the defendant is absolutely necessary inequity and as of right for preventing injustice. | 49 DLR 402
26. Rule-13: When an ex parte decree is challenged on the ground of being obtained by fraud, and some element of fraud and collusion is found on record, the court is not to sustain such fraudulent decree even if an application seeking the setting aside of the separate decree is barred by the limitation. | 50 DLR(AD) 205, 36 BLD(AD) 1
27. Rule-6, 6(1)(a) : When the defendant does not appear when the suit is called on for hearing, then if it is proved that the summons was duly served, the court may proceed ex parte. | 39 DLR 11, 67 DLR(AD) 266
28. Rule-13: Absence of a witness can be no ground for non-appearance of a party– setting aside ex parte decree and restoration of the suit. | 7BLD(HCD) 398, AIR 1943(Mad) 38, AIR 1961(All) 96
29. Rule-13: Condonation of Delay: Separate Application: When the separate application for condonation of delay is necessary to set aside ex parte decree– Mere absence of a formal application is no bar to grant the relief shout for when in the application for restoration of the relevant suit all the facts leading to the delay are duly stated as are required to state in an application for condonation of delay. | 8 BLD(HCD) 331, 9 BLD(HCD) 331
30. Rule-13: With section-151 of C.P.C.: The Civil court no so powerless that in the exercise of its inherent powers it cannot entertain an application for setting aside ex parte decree which is alleged to have been obtained practicing fraud upon the court itself. An application under Sec-151 of C.P.C in such circumstances is clearly maintainable in law. | 12 BLD(AD) 245
31. Rule-13: Setting aside an ex parte decree after the transfer of the suit from the original court to the transferee court — not informed about the proceedings — Sufficient cause. | 12 BLD(HCD) 221
32. Rule-13: Irregularity of Service of Summons:  No court shall set aside ex parte decree merely on the ground that there has been an irregularity in the service of the summons if it is satisfied that the defendant had notice of the date of hearing and have sufficient time to appear and answer the plaintiff’s claim. | 18 MLR(HCD) 1
33. Rule-13: Third-party has no locus standi to set aside ex parte decree. | 2 LNJ(HCD) 237
34. Rule-13: It is a Cardinal Principle of administration of justice that no result of any judicial proceeding should be allowed to received judicial approval from any court of law whenever it is obtained by practicing fraud upon the court. | 2 ADC 761
35. Rule-13: Defendant refused to accept summon, summon served by hanging on the fence of the hut, it is good service — no ground to setting aside ex parte decree. | 1 XP(AD) 22
36. Rule-13: sec-6 of the Arthorin Adalat Ain furnishing set aside ex parte decree. | 2 XP(AD) 124
37. Rule-13: Summon duly served upon the non-contesting defendant, summon on upon the heirs of the deceased non-contesting defendant are not at all necessary — the petition is barred by limitation. | 1 ALR 135
38. Rule-13: When an ex parte order is passed and if the defendant exercises his liberty to file an application for setting aside the ex parte decree, the court is duty-bound to set aside the same subject to the court’s satisfaction on any of the two factors namely, (i) no-receipt of the summons and (ii) the circumstances or factors which prevented the defendant to appear to the court. | 5 ALR(HCD) 326
39. Rule-13(A): civil courts have been empowered to directly restore an ex pate suit fulfill three conditions namely: (i) approaching the court by filing an application upon swearing affidavit, (ii) within a time limit of thirty days, (iii) with a payment of a cost of maximum three thousand taka. | 5 ALR(HCD) 326
40. Rule-9(A): It is mandatory to inform the defendant about the court’s order of restoration of the suit. | 5 ALR(HCD) 326
41. Rule-13: Onus of Proof: Summon was Duly Served: The whole onus is upon the plaintiff to prove that summons was duly served. If he cannot, the ex parte decree will be set aside. | 23 BLT(HCD) 201
42. Rule-9: If a party has a reasonable claim for restoring the suit and he has sufficient cause for non-appearance in the suit and as well as he was ready to pay the cost then it an incumbent duty upon the court to give his chance. | 35 BLD(HCD) 69
43. Rule-13 with Sec-5 of Limitation Act. : When fraud and deceit are established, a decree has no existence in the eye of Law and must be set aside. Such inquiry is permissible within the scope of the rule. | 9 ALR 107
44. Rule-4 with Sec-5 of Limitation Act: Limitation is allowed in under Order 9 Rule-4 …… ….. … .. . | AIR 2001 DEL 79
45. Rule-4: Special court such as Labor Court not being a civil court cannot take recourse to and apply the provision under Order 9 R-4 of this code for the restoration of any proceeding it in term of the said order and rule if the proceeding before it is dismissed for default. But it can certainly, in a just and appropriate case, interfere with its own order of dismissal for default is following provisions of the said law is substance to prevent any miscarriage of justice. | 4 LM(AD) 101
46. Rule-4: Where the court requires the personal appearance of the party… … . The non-appearance of a party on the date of fixed, the court can fix appropriate order for the interest of justice. If fails to appear in person without lawful authority the court may also pronounce judgment against such part. The court may also make such order in relation to the suit as it thinks fit. | 23 BLC(AD) 89, AIR 1931PC 175, AIR 1959 102

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