CPC Order 9

ORDER - IX

APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE

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 Court-house 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 cost —

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 court-fee or postal charges (if any) chargeable for such service, or failure to present copies of the plaint, as required by rule 9 of order VII, the Court may make an order that the suit be dismissed:

Provided that no such order shall be made, if notwithstanding such failure the defendant attends in person or by an agent on the day fixed for him to appear and answer.

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.

What the court can do when neither party appears when it is called for hearing?

(a) Ex parte order

(b) Refer for arbitration

(d) Dismissal of suit

Ans. (d)

Dismissal of the suit under Rule 3 of Order 9 of the Code of Civil Procedure

(a) bar a fresh suit in respect of the same cause of action

(b) does not bar a fresh suit in respect of the same cause of action

(d) may bring a fresh suit with the leave of District Judge

Ans. (b)

Which of the following order a court may pass under Order IX, Rule 3 CPC in a suit where neither plaintiff nor defendant appears on fixed day of hearing?

(a) Simple adjournment

(b) Dismissal of suit

(d) Adjournment sine-die

(e) None of these

Ans. (b)

A fresh suit in respect of the same cause of action is permissible

(a) where a suit is dismissed under Order 9, Rule 8.

(b) where a suit is dismissed under Order 9, Rule 3.

(d) where the plaintiff abandons the suit under Order 23, Rule 1(1)

Ans. (b)

4. 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 he satisfies the Court that there was sufficient cause for such failure as is referred to in rule 2, 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.

Where the suit is dismissed under rule 2 or 3 of order 9 C.P.C., the plaintiff?

(a) May bring a fresh suit subject to Law of Limitation

(b) Cannot bring a fresh suit

(d) May bring a fresh suit with the leave of District Judge

Ans. (a)

5. Dismissal of suit where plaintiff after summons returned unserved, fails for seven days to apply for fresh summons—

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 seven days 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—

(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.

A suit may be dismissed where

(a) summons are not served on the defendant in consequence of the failure of the plaintiff to take proper steps like filing of court fee, postal charges or requisite number of copies of plaint.

(b) neither party appears when the suit is called on for hearing.

(d) All these

Ans. (d)

A Suit may be dismissed where, after a summons has been issued to the defendant and returned unserved, plaintiff fails the apply for fresh summons for the period of—

(a) Seven days

(b) Sixty days

(d) Two months when the plaintiff fails to apply for fresh summons from the court

Ans. (a)

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 make an order that the suit shall be heard ex parte

(b) When summons not duly served—if it is not proved that the summons was duly serve, 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 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 plaintiffs' 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.

A suit may be dismissed where, after a summons has been issued to the defendant and returned unserved, plaintiff fails to apply for fresh summons for the period of—

(a) Thirty days

(b) Sixty days

(d) Two months from the date of such return.

Ans. (c)

7. 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.

An application under Order IX, Rule 7 of CPC can be made

(a) within 60 days of the Order

(b) within 30 days of the Order

(d) any time during the pendency of the suit

Ans. (c)

Application under Order 9, Rule 7 of CPC to set aside the order of ex parte proceeding may be filed

(a) within 30 days

(b) within 60 days

(d) At or before the date fixed for hearing

Ans. (d)

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.

A suit can be dismissed in default

(a) under Order IX, Rule 2 of CPC

(b) under Order IX, Rule 3 of CPC

(d) both (b) & (c)

Ans. (d)

Where the defendant appears and the plaintiff does not appear when the suit is called for hearing and where a part of the claim is admitted the court shall:

(a) Dismiss the whole suit

(b) Dismiss the suit so far as it relates to the remainder

(d) Proceed ex parte (proceedings) against defendant

Ans. (b)

A suit may be dismissed under Order 9 of Code of Civil Procedure, 1908:

I. Where the summons is not served upon the defendant in consequence of the plaintiff’s failure to pay costs for service of summons.

II, Where neither the plaintiff nor the defendant appears.

III. Where plaintiff, after summons returned unserved, fails for 7 days to apply for fresh summons.

IV. Where on the date fixed for hearing in a suit only defendant appears and he does not admit the plaintiffs claim.

Codes:

(a) I, II and III

(b) I, III and IV

(d) All of the above

Ans. (d)

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 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 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 suit.

2. No order shall be made under this rule unless notice of the application has been served on the opposite party.

A suit dismissed under Order IX, Rule 8 of C.P.C. for non-appearance of the plaintiff can be restored under: —

(a) Order IX, Rule 9

(b) Order IX, Rule 10

(d) None of the above

Ans. (a)

After dismissal of suit under Order 9, Rule 8 of CP.C, a fresh suit on the same cause of action, under Order 9 Rule.9 of C.P.C

(a) Is barred

(b) Is not barred under any circumstances

(d) None of the above

Ans. (a)

10. Procedure in case of non-attendance 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 non-attendance 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. 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.

SETTING ASIDE DECREES EX PARTE

13. SETTING ASIDE DECREE EX PARTE AGAINST DEFENDANT —

In any case in which a decree is passed exparte 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:

Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim

Explanation —

Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal,no application shall lie under this rule for setting aside that ex parte decree.

In the Code of Civil Procedure, an ex parte decree can be set aside:

(a) Under Order IX Rule 5

(b) Under Order IX Rule 10

(d) Under Order IX Rule 11

Ans. (c)

An ex-parte decree can be set aside on the ground of

(a) summons not duly served

(b) being prevented by any sufficient cause from appearance

(d) both (a) and (b)

Ans. (d)

In a suit for partition three defendants were set ex parte. Preliminary decree was passed. On the application of one of the three defendants the Court set aside the decree as against all the defendants. The order of the court is

(a) legal

(b) irregular

(d) illegal

Ans. (a)

Where the appellant has withdrawn the appeal preferred against a decree passed ex parte, the application under Order 9 Rule 13 of CPC, shall be

(a) Rejected

(b) Returned

(d) Referred for opinion to the Appellate Court

Ans. (c)

When an ex-parte decree is passed the defendant:

(a) Can file an appeal under Section 96 of the Code of Civil Procedure

(b) Can file an application under Order 9 Rule 13 of the Code of-Civil Procedure

(d) If an application (b) above is dismissed can file appeal to dispute the correctness of order passed

Ans. (c)

Under which of the following provisions of the Code of Civil Procedure, 1908 an ex parte order and ex-parte decree may be set aside?

(a) Order 9, Rule 7 and Order 9, Rule 10

(b) Order 9, Rule 4 and Order 9, Rule 5

(d) Order 9, Rule 11 and Order 9, Rule 12

Ans. (c)

In a suit for recovery instituted by A against B, despite the summons of suit having been duly served upon B, he did not appear on the date fixed in the summons on 1.3.1993. The court consequently on 1.3.93 passed an ex-parte order against B and listed the case for 3.4.93 for ex parte evidence of A.

(a) B can participate in further proceedings of the case.

(b) B can seek setting aside of the ex-parte order if he is able to show good cause for his non-appearance.

(d) Both (a) and (b) are incorrect.

Ans. (c)

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.

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