ORDER 5 (SUMMON)

The word ‘summon’ has not been defined anywhere in the code. The definition of summons as
given by the Oxford dictionary states that, “a document which is issued from the court of justice
and calls upon a person to whom it is directed, to be present before a judge or court for a specific
reason is called a summon.” Issue and service of summons are given under Order 5 of the Code.
The importance of summons lies in the fact that when a plaintiff files a suit, the defendant must
be informed about the suit that has been filed against him so that he can be heard and the
procedure of fair trial is followed. The document which is sent by the court to the defendant to
inform him about the suit filed against him is known as a summon.
Essentials of summons
The essentials of a summon are given under Order 5, Rules 1 and 2 of the code. These are:
 Every summon must be signed by the judge or any other officer whom he appoints to
do so on his behalf.
 It must be sealed properly.
 The court will not issue any summons to the defendant if he has appeared before the
court at the time of the institution of the plaint.
 After summons are issued, the defendant is required to file written statements within
30 days. If he fails to do so, he has to provide reasons, and if the court is satisfied, it
can extend the time period to file written statements to not more than 90 days.
 Another essential element of summons is that every summon must be accompanied by
a copy of the plaint.
 The format of a summons must be according to the prescribed form given in
Appendix B of the First Schedule under the code.
Contents of summons
Rule 5 to Rule 8 of Order 5 under the code gives the content of summons. A summon must
contain:
 Information, whether it is issued for settlement of issues or final disposal of the suit.
According to Rule 5, the court of small causes can only issue a summons for the final
disposal of a suit and nothing else.
  It must contain the date and day fixed for the appearance of the defendant, considering
the factors like the residence of the defendant, time, etc., so that he can get a
reasonable time and opportunity to appear before the court.
 It also contains the list of necessary documents that a defendant is required to produce
in court.
 If the summons is issued for final disposal, it must direct the defendant to produce
witnesses on his behalf to support his side.
Summons to defendants
According to Rule 1 of the Order, whenever a lawsuit is instituted by a plaintiff, the defendant
has to file a written statement within 30 days of the issuance of the summons to him. If he fails to
do so and furnishes an appropriate reason, the court, after consideration, may extend the time up
to 90 days. However, the court will not issue any summons if the defendant was present at the
time of the institution of the plaint and has admitted the claim of the plaintiff. Section 27 of the
Code further provides that a summons must be issued to the defendant when the suit is instituted
to appear before the court and answer the plaint in the form of written statements.
Appearance of defendant (Rule 3)
According to Rule 3, if summons has been issued to the defendant, he may appear before the
court in the following ways:
 He may appear himself in person or,
 Through his pleader, who will answer all the questions on his behalf or,
 by a pleader along with another person to answer all the questions.
The court, however, has the power to call defendants at any time to appear personally before the
court if there are reasons to do so.
Exemption from appearance (Section 132, 133, Rule 4 of Order 5)
The code provides certain provisions that mention the people who are exempted from appearance
in the court on the issuance of a summons and the necessary conditions. These are:
 Section 132 provides that any woman who cannot be compelled to appear in public
due to the customs and other manners followed, will not be asked to appear before the
court. This does not mean that she will not be arrested if required in civil proceedings.
This will only happen if the code provides for any such exemption provision.
  Section 133 further gives the list of particular people who are exempted from
appearing before the court personally. This includes:- The President of India, Vice-
President , Speaker of house, Union Ministers, Supreme Court judges, States’
Ministers, High Court judges
 According to Rule 4 of Order 5, a person will be exempt from appearing before the
court if:
o He does not reside within the local limits of the court’s jurisdiction or
o He lives in a place that is more than 50 miles or 200 miles away from the
court.
Mode of service of summons (Rule 9 -30)
This is one of the most fundamental and important rules of law that states that a party must be
given a fair chance to represent himself, and this is only possible if he has been served with fair
and reasonable notice of legal proceedings stating the legal action taken against him. This will
also give him the opportunity to defend himself and present his case.
One of the major causes of delay in justice or pendency in cases is the service of summons. The
defendants or people to whom the summons are issued may avoid it or ignore it, which results in
a delay in proceedings, leading to a delay in justice. The Law Commission and the makers of the
law felt a need to make certain amendments with respect to the service of summons and their
modes of service.
Personal or direct service (Rules 10 to 16 and Rule 18)
Rules 10 to 16 and Rule 18 of the order deal with personal or direct service. While serving
summons through this mode, the following principles must be taken into consideration:
 The service officer must try to serve the summons to the defendant or his agent. – R12
 If the defendant is not present at his place of residence and there is no agent, then it
must be served on any adult male or female member of the family living with him on
his behalf. –R15. A servant cannot be said to be a family member.
 If a suit is related to the business or work of a person who does not reside within the
territorial jurisdiction of the court, then it may be served to the manager or agent of
that business or work.- R13
  In the case of a suit on immovable property, if the defendant is not found, then the
summons may be served on any person or agent who is in charge of such property–
R14
 If a suit involves two or more defendants, then the summons must be issued to each of
them. –R11
In all the above cases, service of summons should be made by delivering or tendering a copy
thereof (R-10). Where the serving officer delivers or tenders a copy of summons to the
defendants personally or to his agent or other person on his behalf, the person to whom the copy
is delivered or tendered must make an acknowledgement of services of summons.(R-16). The
serving officer, thereafter must make an endorsement on the original summons stating the time
and manner of service thereof and the name and address of the person, if any identifying the
person served and witnessing the delivery or tender of summons. (R-16).
Service by the court (Rule 9)
Rule 9 of the Order deals with the service of summons by court. It provides that if a defendant
resides within the jurisdiction of the court, then the summons must be served to him by the court
officer. It can also be served by post, fax, message, email service, approved courier service, etc.,
but if the defendant does not live within the jurisdiction, then it must be served by the officer of
the court within whose jurisdiction he resides.
In the case, summons are served by Registered post acknowledgment due (RPAD), the court will
assume the valid service of summons is complete even if there is no acknowledgement slip. If a
person refuses to accept it, the court may treat it as a valid service.
Service by plaintiff (Rule 9A)
According to Rule 9A of the Order, the court may permit the plaintiff, on his application, to
serve summons to the defendants. He has to deliver the copy of the summons which is sealed and
signed by the judge or any other officer appointed by the judge to do so, and also make sure that
the defendant summons acknowledges the service. If the defendant refuses to acknowledge the
service or if it cannot be served personally, the court will re-issue the summons and serve it to
the defendant.
Substituted service (Rules 17, 19 and 20 of the Order)
Substituted service means a mode of service of summons that is adopted in place of ordinary
service of summons. There are two modes of substituted service as given under Rules 17, 19 and
20 of the Order. These are:
 If the defendant or his agent refuses to acknowledge or sign the receipt of the
summons, or if the officer serving the summons reasonably believes that the defendant
is not present at his residence and will not be found within a reasonable time, and
moreover if there is no agent to receive summons on his behalf, he may affix the copy
of the summons on the door or any conspicuous part of his house.
o In this case, the serving officer has to make a report stating the reasons for
affixing the summons, the circumstances, the name and address of the
person who helped him and the witnesses to affixing the summons.
o The court can declare that the summons has been issued if it is satisfied
with the report of the officer.
 If the defendant is deliberately avoiding service and the court has a reason to believe
so, it may affix the summons in some conspicuous place in the court and house of the
defendant where he used to reside, carry on business or work for somebody.
According to Rule 20, if a court orders to advertise the summons in the newspaper, then it must
be done in a local newspaper where the defendant lived, had a business, or worked.
Service by post (Rule 20A)
The Code earlier provided that the summons could be served through the post as well and was
given under Rule 20A of the Order, but this provision has been repealed by the Amendment Act
of 1976.
 ORDER 39 (TEMPORARY INJUNCTIONS)
Rooted in the principles of goodwill, equity, good conscience and the legal maxim, “Ubi jus, ibi
remedium” – where there is a right, there is a remedy – an injunction is an equitable remedy
where an individual is commanded by a court – having authority over that individual – to
perform or cease to perform a specific action, provided, if the court were not to intervene would
cause irreparable harm to the status quo of the individuals involved in the case.
Kinds of Injunction:
A temporary or interim injunction restrains a party temporarily from doing the specified act
and can be granted only until the disposal of the suit or until the further order of the court. It is
regulated under the provisions of Order -XXXIX of CPC and may be granted at any stage of the
suit.
Permanent Injunction restrains a party forever from doing the specified act and can be granted
only on the merits at the conclusions of the trial after hearing both the parties to the suit. It is
governed by Section-38 to Sec-42 of Specific Relief Act,1963.
Conditions for granting Temporary Injunction:
Injunction is discretionary remedy and thus, before granting of the temporary injunction, the
following conditions are required to be satisfied:
1. Prima Facie Case is in the favour of the plaintiff and against the defendant.
2. Irreparable injury is likely to be caused to the plaintiff, which cannot be compensated for in
terms of money.
3. Balance of convenience is in favor of the plaintiff and against the defendant.
Rules under Order XXXIX of the Code of Civil Procedure, 1908
Order 39, Rule 1 talks about the cases in which the court may grant a temporary injunction as a
statutory relief, they are:
 In the case of property dispute, if the property in question is under a risk of being wasted,
damaged or alienated or wrongfully sold by an individual involved in the suit.
 If an individual threatened or displayed intention of removing or disposing off of his property
with a motive to defraud his creditors. This is specific to the defendant only.
 If the plaintiff is threatened – by the defendant – to be dispossessed or injured in the context of
the property dispute under question.
 Order 39, Rule 2 If the defendant were to commit a breach of peace or contract or other injury
of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time
after the commencement of the suit, and either before or after judgment, apply to the Court for a
temporary injunction to restrain the defendant from committing the breach of contract or injury
complained, of, or any breach of contract or injury of a like kind arising out of the same contract
or relating to the same property or right. The Court may by order grant such injunction, on such
terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as
the Court thinks fit.
 Lastly, the court may issue an injunction if it is of the opinion that it would be an act in the
interest of justice.
Order 39, Rule 2-A talks about the non-compliance of an individual with regards to an
injunction, they are:
 It mandates the detainment of that individual in civil prison for not more than three months.
 Furthermore, it warrants the attachment of property of that guilty individual for not more than a
year. However, if the delinquency were to continue, the property may be sold.
 In the case of Ram Prasad Singh v. Subodh Prasad Singh (1983), it was highlighted that it is
not necessary for an individual to be a party to the concerned suit, to be liable under Order 39,
Rule 2-A of the CPC, 1908, provided it is known that he was an agent of the defendant and
violated the injunction despite being aware of the same.
Order 39, Rule 3 Usually, the court is required to issue a notice to the opposite party regarding
the application of injunction, but through Order 39, Rule 3, requires that the applicant to issue a
notice to the opposite party before an injunction is granted. Though the court has the power to
grant an ex-parte injunction without issuing a notice the Court shall record the reasons for its
opinion that the object of granting the injunction would be defeated by delay, and require the
applicant—
(a) to deliver to the opposite party, or to send to him by registered post, immediately after the
order granting the injunction has been made, a copy of the application for injunction together
with—
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant, relies, and
 (b) to file, on the day on which such injunction is granted or on the day immediately following
that day, an affidavit stating that the copies aforesaid have been so delivered or sent.
Order 39, Rule 4 lays down that an injunction may be discharged, varied or set aside, if any
dissatisfied party makes an appeal against it, provided that:
 The application for injunction or documents advocating the same included knowingly false or
misleading statements and the injunction was granted without listening to the other party. Thus,
the court will vacate the injunction. However, it can also stick with the injunction if it considers
– the reason is to be recorded – the same not be necessary in the discourse of injustice.
 Furthermore, the court may also set aside the injunction if, due to a change of circumstances, the
party against whom the injunction is granted, has suffered unnecessary hardships.
Order 39, Rule 5 makes an important point that, if an injunction is granted against a corporation
or a firm, the authority of the is not limited to the corporation as an entity alone, members and
officers of the corporation whose personal action it seeks to restrain are also included under its
ambit.
 SECOND APPEAL
Section 100 to 103, 107-108 and Order 42 of the code deals with second appeal.
Section 100:- second appeal
(1) An appeal shall lie to the High Court from every decree passed in appeal by any Court
subordinate to the High Court, if the High Court is satisfied that the case involves a substantial
question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it
shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that the case does not involve such question:
Substantial question of law:
The legislature has not defined the term substantial question of law, although the expression has
been used in the constitution as well as in other statutes. The expression substantial question of
law cannot be confined into straight jacket. The existence of substantial question of law is a sine
quo non for exercise of jurisdiction u/s 100 of cpc.
Section 100A. No further appeal in certain cases.
where any appeal from an original or appellate decree or order is heard and decided by a Single
Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single
Judge
Section 101:- No appeal shall lie except on the grounds mentioned in section 100.
Section 102. No second appeal in certain cases.—
No second appeal shall lie from any decree, when the subject matter of the original suit is for
recovery of money not exceeding twenty-five thousand rupees.
Section 103. Power of High Court to determine issue of fact.—
In any second appeal, the High Court may determine any issue necessary for the disposal of the
appeal,—
(a) which has not been determined either by trial court or appellate court or both,or
(b) which has been wrongly determined by such Court or courts.
Sec 107 This provision provides a systematic arrangement of the powers of an appellate court
which includes final determination of a case, remanding a case, framing issues and addressing
the same during the trial, and taking additional evidence whenever required. All these four
powers need to exercise judiciously without any scope for creases in the administration of
justice.
Section 108 specifies two parameters in which it will apply to the appeals concerning those
grounds only. They are appeals from appellate decrees that are the rights of the parties laid down
by an appellate court while considering an appeal by one of the parties in the suit, and to those
Orders under the Code of 1908, or any other special, or local law which have not been provided
with a proper procedure to be followed for its execution.
Order 42 CPC
1.Procedure
The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees.
2. Power of Court to direct that the appeal be heard on the question formulated by it
At the time of making an Order under rule 11 or Order XLI for the hearing of a second appeal,
the Court shall formulate the substantial question of law as required by section 100 and in doing
so, the Court may direct that the second appeal be heard on the question so formulated and it
shall not be open to the appelant to urge any other ground in the appeal without the leave of the
Court, given in accordance with the provision of section 100.
3. Application of rule 14 of Order XLI
Reference in sub-rule (4) of rule 14 of Order XLI to the Court of first instance shall, in the case
of an appeal from an appellate decree or Order, be construed as a reference to the Court to which
the appeal was preferred from the original decree or Order.
 RECEIVER (ORDER 40)
Under order 40 of CPC, The Receiver is an independent and impartial person who is appointed
by the court to administer/manage, that is, to protect and preserve a disputed property involved in
a suit.
For example, in a dispute between A and B for an immovable property, if the court thinks that it
is in the best interest of both the parties that possession should be taken from B and given to an
independent person, the court may appoint a receiver who can manage the property till the time
the suit is being decided. Such a receiver appointed by the court would be responsible for the
maintenance of the property. He can collect the income accruing like rent or any other profits
and utilize it to maintain the property. After deducting the expenses incurred in maintenance
from the income received from the property, the receiver will have to submit the remaining
income, if any, in the court.
Order 40, Rule 1 Where it appears to the Court to be just and convenient, the Court may by
order— (a) appoint a receiver of any property, whether before or after decree; (b) remove any
person from the possession or custody of the property; (c) commit the same to the possession,
custody or management of the receiver;
Order 40, Rule 1(d) of the CPC outlines the powers of a receiver, including: Bringing and
defending suit and for the realization, mgt., protection, preservation and improvement of
property and
1. Collection of Rents and Profits: The receiver is authorised to collect rents and profits arising
from the property.
2. Application and Disposal of Rents and Profits: They can apply and dispose of these rents and
profits.
3. Execution of Documents: The receiver has the power to execute documents as if they were the
owner.
4. Legal Actions: They can institute and defend suits related to the property.
5. Additional Powers: The court may grant additional powers as deemed necessary.
The receiver enjoys indirect powers as an extension of the court. For example, interference with
the receiver’s possession can be treated as contempt of court. Additionally, property in the hands
of the receiver cannot be attached without the court’s permission.
 Receivers are entitled to remuneration for their services, as fixed by the court. Order 40,
Rule 2 allows the court to fix the remuneration for the receiver’s services through general or
specific orders.
Duties of the Receiver under the Civil Procedure Code
Order 40, Rule 3 of the CPC stipulates the duties of a receiver, which include:
1. Furnishing Security: The receiver must provide security to account for the income received
from the property.
2. Submitting Accounts: They must submit half-yearly accounts as directed by the court, detailing
income received and expenses incurred for the property’s maintenance.
3. Paying Amounts Due: The receiver is responsible for paying any amounts due to the court.
4. Preventing Value Reduction: The receiver must prevent any reduction in the property’s value
due to willful negligence.
5. Personal Discharge of Duties: The receiver must personally discharge their duties without
delegating or assigning their responsibilities.
Failure to fulfill these duties can result in the court taking action against the receiver, holding
them personally liable for any losses incurred due to negligence or failure to protect and preserve
the property.
Liabilities of the Receiver under the Civil Procedure Code
Order 40, Rule 4 of the CPC outlines the liabilities of a receiver, which arise if they fail to:
1. Submit Reports: Failure to submit the specified reports.
2. Pay Due Amounts: Failure to pay amounts due as directed by the court.
3. Prevent Property Loss: Causing loss to the property due to gross negligence.
4. Perform Directed Duties: Failing to perform any other court-directed duties.
In such cases, the court may order the attachment of the receiver’s property to recover losses
caused by willful default or negligence. The proceeds from the sale of the receiver’s property
will be used to cover the losses, with any remaining balance paid to the receiver
Appointment of a Collector as Receiver under the Civil Procedure Code
According to Order 40, Rule 5, a collector can be appointed as a receiver if the property
generates revenue for the government. The court may appoint a collector as a receiver, with their
consent, if it believes that the collector’s management will promote the interests of those
concerned.
 REVIEW( SECTIONN 114, ORDER 47)
Review is covered under S. 114 of CPC. Review means nothing but to reconsider/rethink or re
examine/re-evaluate something. The term "review" refers to a court's re-examination of a
previous decision. The very same judge and the very same court conduct the review. Any
individual who is dissatisfied by an order or decree from which no appeal exists or wherein an
appeal exists but is not chosen may request a review of verdict.
Any person who has been aggrieved by a court of small causes decision on a referral may request
a review of the judgement. The petition for review must be fled with the court that issued the
decree or order. The court to which a petition for review should be addressed is the court that
issued the judgement or order.
An application for review can be filed by anyone who is affected by a decree /order or by the
ruling of court of small causes on a reference. The provisions governing the form of preferred
appeals apply to the application form for review also with few necessary alterations which is also
known as "mutatis mutandis".(RULE 2 OF ORDER 47)
When the term “Functus Officio” is used in relation to the court, it means that ‘once the court
passed any judgment after the lawful hearing, then the case cannot reopen and the judgment is
binding on the parties’. A lawful hearing and trial are the essential conditions for the “Functus
Officio”.
Right to review judgment is the exception to this Latin term “Functus Officio”. On the
application of an aggrieved party or person, the proceeding for review of Judgment will be
initiated.
Grounds of review (Rule 1)
“(1) Any person considering himself aggrieved
by a decree or order from which an appeal is allowed, but from no appeal has been preferred,
by a decree or order from which no appeal is allowed, or
by a decision on a reference from a Court of Small Causes,
AND who
 Discovery of new evidence: – When something new is discovered which was not filed by the
deceased person at the time of decree or was not within the knowledge of the deceases person at
the time of decree, then a review petition can be filed.
 Mistake or error :- When any mistake or error can be seen which is apparent on record and
didn’t require any extra evidence to establish it, then review petition can be filed.
 No right to Appeal:– When no right to appeal is allowed as per the decree of the order, then the
deceased can file for a review petition.
 Appealable Decree:- When appeal is allowed for the decree against the deceased person and he
did not appeal, then review petition can be filed.
 Any other ground:- Party may file review petition, if the Court agrees to it that it has sufficient
ground to file.
(2) A party who is not appealing from a decree or order may apply for a review of judgment
notwithstanding the pendency of an appeal by some other party except where the ground of such
appeal is common to the applicant and the appellant, or when, being respondent, he can present to
the Appellate Court the case on which he applies for the review.”
(Rule 4 of Order 47)
Rejection of Application of Review
 As per Sub rule 1 of Rule 4 of Order 47 of CPC, where it appears to the Court that there is not
sufficient ground for a review, it shall reject the application.
Acceptance of Application of Review
 As per Sub rule 2 of Rule 4 of Order 47 of CPC, where the Court is of opinion that the
application for review should be granted, it shall grant the same.
Provided that—
(a) no such application shall be granted without previous notice to the opposite party, to enable
him to appear and be heard in support of the decree or order, a review of which is applied for;
and
(b) no such application shall be granted on the ground of discovery of new matter or
evidence which the applicant alleges was not within his knowledge or could not be adduced by
him when the decree or order was passed or made, without strict proof of such allegation.
Rule 6 of Order 47
“Application where rejected-
Where the application for a review is heard by more than one Judge and the Court is equally divided,
the application shall be rejected.
Where there is a majority, the decision shall be according to the opinion of the majority.”
As per Rule 7 of Order 47, An order of rejection of review application is not appealable. The party
filing the application of review cannot appeal again if their review application is rejected by the
Judges or court. However, the accepted application is appealable.
Where the rejection of application is due to the failure of appearance of the applicant on the date
fixed for the hearing, the applicant can apply for an order to restore his application and court will
restore his appeal is it is proved that there was a sufficient cause for non-appearance.
The opposite party must be notified of the status of the review application.
Rule 8 of Order 47 of CPC:
When the court accepts the application for review judgment, the court will proceed with the
procedure of rehearing of the case. And the after review judgment will be binding on the parties.
Rule 9 of Order 47, mentioned that there will be no further review of any order or
judgment passed on the review order.
Reference and Review
S.No. Reference Review
The case is referred to the High Court by the
For review, the application is made by the
1. subordinate court and not by the party for
aggrieved party.
reference.

The matter of reference can be decided by the A review is done by the court which has
2.
High Courts only. passed the decree or made the order.

Reference can be made only when the suit, A review can be done only after the decree or
3.
appeal or execution proceeding is pending. order is passed.

4. Grounds of reference is different than a review. Grounds for review are different.
Reference and Revision
S.No. Reference Revision
For revision, the application is made to the High
For reference, a case is transferred by a
1. Court either by the aggrieved party of by High
subordinate court to the High Court.
Court suo moto.
The grounds for reference is when there is
The ground for revision is jurisdictional errors
2. reasonable doubt on the question of law by
by the subordinate court.
the subordinate court.

Review and Revision

S.No. Revision Review

Revisional jurisdiction can be exercised only A review is done by the court who has passed the
1.
by the High Court. order or decree itself.

Revisional power is exercised when no Review of an order or decree can be done even if
2.
appeal lies to the High Court. an appeal lies to the High Court.

The High Court can exercise the revisional For review, an application is required to be filed
3.
power even suo moto(by its own motion). by the aggrieved party.

The grounds for revision is mainly on

4. The grounds for revision are different
jurisdiction errors.

The order passed on exercising revisional

5. The order granting the review is appealable.
jurisdiction is not appealable.
 ORDER 9
In the Code of Civil Procedure (CPC), “appearance” and “non-appearance” refer to the
participation or absence of the parties involved in a legal case during court proceedings.
Appearance: When a party “appears,” it means they actively engage in the legal proceedings by
being present in court or by being represented by their legal representative (pleader). This can
include attending hearings, presenting arguments, submitting evidence, and responding to the
court’s directions or questions.
Non-appearance: On the other hand, “non-appearance” signifies the absence of a party from the
court proceedings. If a party is required to be present in court but fails to attend or be represented
by their legal representative, it is considered a “non-appearance.” This can have consequences
depending on the stage of the case and the rules set forth in the CPC.
The Appearance of Parties to the Suit (Rule 1 )
According to the provisions of Rule 1 within Order IX of the Code of Civil Procedure, the
involved parties in the lawsuit must make their presence felt in court, either through personal
appearance or by means of their legal representatives, on the designated date mentioned in the
summons.
In the event that the plaintiff or defendant, upon being directed to attend the proceedings
personally, fails to do so without furnishing a satisfactory reason for their non-appearance, Rule
12 of Order IX confers upon the court the following powers:
 In case of the plaintiff’s non-appearance, the suit will be dismissed.
 If the defendant does not make an appearance, an ex-parte order will be issued.
Non-Appearance of Both Parties to the Suit (Rule 3 &4)
In situations where both the plaintiff and the defendant do not appear before the court during the
hearing of the suit, the court is granted the authority to dismiss the suit per Rule 3 of Order IX.
It’s important to note that the dismissal of the suit under this provision does not prevent the
initiation of a fresh suit based on the same cause of action, as outlined in Rule 4.
Furthermore, the plaintiff has the option to request the court to reconsider the dismissal if they
can sufficiently demonstrate that valid reasons existed for their non-appearance it has the
discretion to overturn the dismissal order and establish a new hearing date for the suit.
The Appearance of the Plaintiff (Rule 6,10)
In instances where only the plaintiff makes an appearance while the defendant does not, the court
has the authority to issue an ex-parte order against the absent defendant. However, it is
imperative for the plaintiff to substantiate that the summons was properly served to the
defendant.
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 plaintiff’s appearing, permit the suit to
proceed in the same way as if all the plaintiff’s had appeared, or make such order as it thinks fit.
Appearance of Defendant (Rule 7-11 of Order IX)
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.
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 dis-
missed 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 the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the
opposite party.
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.
Where summons is duly served (Rule 6)
Where the plaintiff appears and 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 make an order
that the suit shall be heard ex parte.
Where summon is not duly served (Rule 2, 5, 6)
Rule 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 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 agent when he is allowed to appear by agent on the day fixed for him to appear
and answer
Rule 5 (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 1[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.
Rule 6:- 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.
 EX-PARTE DECREE (ORDER 9 RULE 13 & 14)
Ex-parte Decree
When the defendant is absent on the day of the hearing as fixed in the summon an ex-parte
decree can be passed. The ex-parte order is passed when the plaintiff appears before the court on
the day of the hearing but the defendant does not even after the summon has been duly served.
The court can hear the suit ex-parte and give ex-parte decree against the defendant.
An ex-parte decree is a valid one and it is not null and void but can be merely voidable unless it
is annulled on a legal and valid ground. An ex-parte can be enforced like a bi-parte decree and it
has all the forces as a valid decree as held in the case of Panduranga Ramchandra v. Shantibai
Ramchandra.
Remedies against an ex-parte decree
When an ex-parte decree has been passed against a defendant, the following remedies are
available to him.
1. He can apply to the court under rule 13 of Order IX for setting aside the ex-parte
decree passed by the court.
2. He can appeal against that decree under section 96(2) of the Code or, prefer revision
under section 115 of the code when no appeal lies.
3. He can apply for a review under Order 47 Rule 1.
4. A suit on the ground of fraud can be filed.
Setting aside an ex-parte decree (Rule 13)
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:
[Provided further than 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.
The primary object of Rule 13 is to ensure that the aggrieved defendant be placed, as far as
possible in the same position in which he would have been had no decree been passed against
him.
For setting aside an ex-parte decree an application may be made by the defendant. An application
to set aside decree can be made to the court passing that decree. There are certain rules to be
followed for setting aside an ex-parte decree and if the defendant satisfies the court with
sufficient reason, then only the ex-parte decree which has been passed can be set aside.
The limitation period for making an application for setting aside an ex-parte decree is of 30
days.
The grounds on which an ex-parte decree can be set aside are:
1. When the summons has not been duly served.
2. Due to any “sufficient cause”, he could not appear on the day of the hearing.
Sufficient cause cases:- late arrival of train, sickness, fraud of opposite party, death of relatives
of a party, imprisonment of party etc. No Sufficient cause cases:- bald statement of noting
wrong date in diary, negligence of party, suit of high valuation, hardship of defendant, absence to
get undue advantages etc.
An appeal lies against an order rejecting an application to set aside ex parte decree. [O43 R1(d)]
Rule 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.
 REVISION(Section 115)
Section 115 of the Code of Civil Procedure, 1908 (CPC) empowers the High Court to entertain a
revision in any case decided by any subordinate court in certain circumstances.
Section 115 of CPC
(1) The High Court, in cases arising out of original suits or other proceedings of the value
exceeding five lakhs rupees and the District Court, in any other cases, including a case arising
out of an original suit or other proceedings instituted before the commencement of the Code of
Civil Procedure ( Orissa Amendment) Act, 2010, may call for the record of any case which has
been decided by any Court subordinate to the High Court or the District Court, as the case may
be, and in which no appeal lies thereto, and if such subordinate Court appears—
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the
High Court or the District Court, as the case may be, may make such order in the case as it thinks
fit.
Provided that in respect of cases arising out of original suits or other proceedings of any
valuation decided by the District Court, the High Court alone shall be competent to make an
order under this section.
(2) The High Court or the District Court, as the case may be, shall not under this section, vary or
reverse any order, including an order deciding an issue, made in the course of a suit or other
proceedings, except where the order, if it had been made in favor of the party applying for
revision, would have finally disposed of the suit or other proceedings.
(3) A revision shall not operate as a stay of suit or other proceeding before the Court except
where such suit or other proceeding is stayed by the High Court or District Court, as the case
may be.
Explanation—In this section, the expression, “any case which has been decided” includes any
order deciding an issue in the course of a suit or other proceeding.
Case Laws In the case of Welcome Hotel v. State of A.P (1983), the Supreme Court held that
where a court having jurisdiction exercises it in an irregular manner due to a mistake of the
parties, there is no ground for interference in revision.
 LIMITATION ACT
[ACKNOWLEDGEMENT (Section 18,19,20)]
Section 18 of the Limitation Act
The Limitation Act provides for the bar of limitation on the institution of legal proceedings in
India. No suit, appeal or application filed after the expiration of the period prescribed in the
Schedule to the Limitation Act may be entertained. However, such expiration is subject to certain
exceptions, one of them being contained in Section 18, which provides for extension of the
limitation period.
The essential ingredients for invocation of this provision are: (i) there must be an
acknowledgement of liability in respect of a property or a right; (ii) the acknowledgement must
be in writing, signed by the party against whom such right or property is claimed (or by any
person through whom he derives his title or liability); and (iii) the acknowledgement must be
made before the expiration of the prescribed limitation period.
(2) Where the writing containing the acknowledgement is undated, oral evidence may be given
of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872
(1 of 1872), oral evidence of its contents shall not be received.
Section 19 of Limitation Act, 1963:
Effect of payment on account of debt or of interest on legacy-
 Where payment on account of a debt or of interest on a legacy is made before
the expiration of the prescribed period by the person liable to pay the debt or legacy or by his
agent duly authorized in this behalf, a fresh period of limitation shall be computed from the time
when the payment was made:
 Provided that, save in the case of payment of interest made before the 1st day of January,
1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed
by, the person making the payment.
Section 20 Effect of acknowledgement or payment by another person-
This section is an explanatory as well as supplementary section to Section 18 and 19 and does
not constitute an exception in the case of either of these section. Section 20 deals with the
question as to who can keep alive a right which is not time- barred. It does not deal with the
question as to who can revive a time-barred debt.
According to sub-section (1), the expression “agent duly authorized in this behalf” in Section
18 and 19 shall, in the case of a person under disability, include his lawful guardian,
committee or manager or an agent duly authorized by such guardian, committee or manager
to sign the acknowledgment or make the payment.
Sub-section (2) declares that one of several joint contractors, partners,
executors, mortgagees, will not render the other joint contractors, partners, executors or
mortgagees chargeable under an acknowledgment or payment made by him or his duly
authorized agent.
Sub- section (3)(a) provides that an acknowledgment signed by or a payment made, in respect of
any liability, by any limited owner of property (e.g., widow) governed by the Hindu law, shall
be a valid acknowledgment or payment, against a reversioner succeeding to such liability.
Sub-section (3)(b) provides that the manager of a Hindu joint family can make
acknowledgment and payment so as to save limitation in regard to liabilities which are binding
on the family. Such payment or acknowledgment must be deemed to be made on behalf of the
family
Case laws:
Bhagwan v. Madhav (1922):
The Bombay High Court held that an acknowledgment or liability need not be expressed; it may
be by implication.
Kishori Engineering Works v. Bank of India (1991):
The Patna High Court held that where the debtor was making part-payment the limitation would
run from the last made part-payment.