What remedy is available to the plaintiff whose suit has been dismissed for default of his appearance or for default of appearance of both the parties?

Question: What remedy is available to the plaintiff whose suit has been dismissed for default of his appearance or for default of appearance of both the parties?

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Answer

Any order of dismissal for default is not a decree under section 2(2) of the CPC. An order disposing of a suit deciding the question of maintainability, hearing only the defendant in absence of the plaintiff is to be treated as dismissal for default and is not a decree. An order of dismissal for default of appearance is no determination of the rights of the parties and, therefore, is not a decree. A suit may be dismissed for default of appearance under O 9, r 8. Such a dismissal is not a decree and is not appealable.

The provisions laid down to deal with the appearance of only the defendant has been laid down from rule 7-11 of Order IX. When the defendant appears but there is non-appearance of the plaintiff, then there can be two situations:

1. The defendant does not admit the claim of the plaintiff, either wholly or any part of it.
2. The defendant admits the plaintiff’s claim.

If the defendant does not admit the claim of the plaintiff, then the court shall order for dismissal of the suit. However, as cited by Beaumont, C.J. in the case of Shamdasani v. Central Bank of India [(1938) 40 BOMLR 238]: the dismissal of the suit of the plaintiff without hearing him is a serious matter and it should not be adopted unless the court gets satisfied that in the interest of justice such dismissal is required.

There may also be a dismissal for default under O 9, r 3, if neither party appears when the suit is called on for hearing. This is also excluded from the definition of the decree. It has been held that the expression dismissal for default includes not only dismissal for default of appearance but also for default in the prosecution of a suit or appeal.

As against the dismissal of the restoration application under rr 2 and 3 of O 9 read with s 141, a two-fold remedy is provided under r 4 of O 9 read with s 141, wherein it is provided that where the suit is dismissed under r 2 or r 3, CPC, 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 r 2, or for his non-appearance, as the case may be, the court shall make an order setting aside the dismissal.

Further, rule 3 and Rule 4 of Order 9 deals with the cases where neither of the parties in a case appears before the court of law on the date fixed by the court of law. In such a case, the suit shall be dismissed by the court and according to Rule 4, the plaintiff can file a new suit in the court of law if he is able to satisfy the court that there was sufficient cause for his non-appearance in court.

Thus, from a plain reading of rr. 2, 3, 4 and 5 read with s 141, it is clear that the plaintiff-appellant had two remedies either to bring a fresh suit or may apply for setting aside the dismissal under r 4 of O 9 with the aid of s 141, Code of Civil Procedure or may bring fresh suit (subject to the law of limitation) under r 5(2) of O 9. Both these remedies are simultaneous and would not exclude either of them.

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