Dismissal of Order 9, Rule 9 Applications

Navigating the Labyrinth: Remedies for the Dismissal of Order 9, Rule 9 Applications in Indian Civil Procedure

Introduction

The Code of Civil Procedure, 1908 (CPC) lays down the procedural framework for the conduct of civil litigation in India, aiming to secure the ends of justice through a fair and organised trial. Order IX of the CPC specifically addresses the consequences of the non-appearance of parties to a suit. A critical provision within this Order is Rule 8, which mandates that if the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order dismissing the suit, unless the defendant admits the claim, or part thereof.[9]

For a plaintiff whose suit has been dismissed under Order IX, Rule 8, Order IX, Rule 9(1) provides a remedy: the plaintiff may apply for an order to set the dismissal aside. If the plaintiff satisfies the court that there was "sufficient cause" for their non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal.[17], [18] Crucially, Rule 9(1) also imposes a bar, precluding the plaintiff from bringing a fresh suit in respect of the same cause of action. This makes the successful prosecution of an Order IX, Rule 9 application vital for the plaintiff.

A complex procedural predicament arises when an application filed under Order IX, Rule 9 is itself dismissed, often due to the plaintiff's (applicant's) default in appearing to prosecute this very application. This article delves into the legal avenues available to a plaintiff in such a scenario under Indian law, examining the applicability of further restoration applications, the invocation of the court's inherent powers, and the possibility of an appeal. The analysis draws upon statutory provisions and judicial pronouncements to chart the course for litigants facing this procedural cul-de-sac.

Statutory Framework

The primary provisions of the CPC relevant to this discussion are:

  • Order IX, Rule 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."

  • Order IX, Rule 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 the suit."[17]

    "(2) No order shall be made under this rule unless notice of the application has been served on the opposite party."[17]

  • Section 141: Miscellaneous proceedings.

    "The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction."

    Explanation.—In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution.

  • Section 151: Saving of inherent powers of Court.

    "Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

  • Order XLIII, Rule 1(c): Appeals from orders.

    "An appeal shall lie from the following orders under the provisions of section 104, namely:— ... (c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;"

Judicial Interpretation of Dismissal of Order 9, Rule 9 Applications

When an application preferred under Order IX, Rule 9 of the CPC is itself dismissed for default of appearance or non-prosecution by the plaintiff (applicant), the immediate concern is whether this signifies the absolute termination of the plaintiff's recourse regarding the original cause of action, given the bar on a fresh suit. Courts have grappled with this issue, leading to the evolution of remedial pathways.

Dismissal for Default versus Rejection on Merits

It is a foundational principle that a dismissal of an application for default of appearance or non-prosecution is not an adjudication on the merits of the application. Consequently, such a dismissal does not operate as res judicata. The Supreme Court in State Of Uttar Pradesh And Another v. Jagdish Sharan Agrawal And Others[10] reiterated that the dismissal of a suit for non-prosecution was not a decision on merit and could not operate as res judicata. This principle extends to applications dismissed for default, including those under Order IX, Rule 9. Similarly, in Arjun Singh v. Mohindra Kumar[7], it was noted that for res judicata to apply, the decision must be on merits.

Remedies Available

The judiciary has recognized primarily three avenues for a plaintiff whose Order IX, Rule 9 application has been dismissed for default:

1. Further Application for Restoration of the Dismissed Order IX, Rule 9 Application

The most debated and often utilized remedy is the filing of another application seeking the restoration of the dismissed Order IX, Rule 9 application.

  • Applicability of Order IX, Rule 9 read with Section 141 CPC:

    Section 141 CPC, particularly its Explanation, clarifies that the procedure applicable to suits shall, as far as possible, be applied to "all proceedings," including proceedings under Order IX. An application under Order IX, Rule 9 is undeniably a "proceeding." Therefore, if such a proceeding (the O9R9 application) is dismissed for default (analogous to a suit being dismissed under Order IX, Rule 8), the question arises whether another application, mirroring the principles of Order IX, Rule 9, can be filed to restore it.

    The Madras High Court in Kara Chinnappa Naidu v. B.K Deenadayalu Naidu[19], dealing with an analogous situation of an Order IX, Rule 13 application dismissed for default, held that an application under Order IX, Rule 9 would lie to set aside such a dismissal. This reasoning supports the filing of a subsequent application to restore an Order IX, Rule 9 application that was itself dismissed for default.

    The Bombay High Court in Laxmi Investment Co. Pvt. Ltd. Akola (In Liq.) v. Tarachand Harbildas[20] squarely posed the question: "Where an application to restore a suit to file under Order 9 rule 9 is itself dismissed for default, whether a further application to restore the application under Order 9 rule 9 to the file will at all lie?", acknowledging the existence of conflicting authorities at the time.

    A more definitive stance has emerged from various High Courts, often relying on Full Bench decisions. For instance, the Madhya Pradesh High Court in Vijay Kumar Gupta v. Yugal Kishore Shrivastav[27], citing its Full Bench ruling in Nathu Prasad v. Singhai Kapurchand[22], affirmed that an application under Order IX, Rule 9 CPC is indeed tenable for the restoration of an earlier Order IX, Rule 9 application that had been dismissed for want of prosecution. This view aligns with the principle that procedural law should facilitate justice rather than obstruct it.

  • Invoking Inherent Powers under Section 151 CPC:

    Where the applicability of Order IX, Rule 9 via Section 141 CPC is doubted or considered unclear, Section 151 CPC provides a reservoir of inherent power for the court to make orders necessary for the ends of justice. Some judicial opinions have favored this route.

    In C. Chenchanna Naidu v. Praja Seva Transports Ltd.[26], the Madras High Court suggested that if a second application under Order IX, Rule 9 was not competent to restore a prior Order IX, Rule 9 application dismissed for default, the court's inherent jurisdiction under Section 151 CPC could be invoked in appropriate cases to restore the suit (implicitly, by restoring the application).

    The Jammu and Kashmir High Court in Bula Dabloo v. Sri Kanth Handoo[24] expressed a preference for invoking Section 151 CPC to restore an Order IX, Rule 9 application dismissed for default, emphasizing that courts should be armed with wider powers to remedy defects and meet the demands of justice, especially when specific provisions are silent or ambiguous. The court cited with approval the Full Bench decision of the Assam High Court in Madan Lal Agarwala v. Tripura Modern Bank Ltd. (AIR 1954 Assam 1 (FB)).

    However, it is a general principle that inherent powers should not be exercised when a specific remedy is provided by the Code. If Order IX, Rule 9 read with Section 141 is held applicable, recourse to Section 151 might be considered secondary or supplementary.

2. Appeal against the Order Dismissing the Order IX, Rule 9 Application

The availability of an appeal is governed by Order XLIII, Rule 1(c) CPC, which permits an appeal from an order under Rule 9 of Order IX "rejecting an application ... for an order to set aside the dismissal of a suit."

A significant point of contention has been whether the term "rejecting an application" encompasses dismissal for default of the Order IX, Rule 9 application itself, or if it is confined to a rejection on the merits (i.e., after hearing, the court finds no "sufficient cause").

The Allahabad High Court in Gaja v. Mohd. Farukh[21], [25] held that no appeal was maintainable against an order dismissing an application for restoration of an application (which was for setting aside an ex parte decree, analogous to an O9R9 scenario). This view suggests a restrictive interpretation of "rejecting."

Conversely, the Full Bench of the Madhya Pradesh High Court in Nathu Prasad v. Singhai Kapurchand[22] was constituted, inter alia, to answer: "(1) Whether an appeal lies under Order 43, Rule 1 (c), rejecting/dismissing for default an application under Order 17, Rule 2, read with Order 9, B. 9, Civil P. C.?" While the full text of the conclusions is not provided in the reference material, such Full Bench pronouncements are pivotal. The trend in many High Courts, supported by such authoritative decisions, is to interpret "rejecting" broadly to include dismissal for default. This interpretation ensures that a party aggrieved by the dismissal of their restoration application, even if for default, has a right to appellate review, preventing a potential foreclosure of their case without scrutiny by a higher forum.

The "Sufficient Cause" Doctrine

Regardless of the procedural route taken to seek restoration of a dismissed Order IX, Rule 9 application, the cornerstone for success remains the demonstration of "sufficient cause." This applies both to the non-appearance when the original suit was dismissed and to the non-appearance when the Order IX, Rule 9 application itself was dismissed.

The Supreme Court has consistently advocated for a liberal, pragmatic, and justice-oriented approach when interpreting "sufficient cause." In G.P Srivastava v. R.K Raizada And Others[3], the Court emphasized that unless "sufficient cause" is shown, an ex parte decree cannot be set aside, but also cautioned against an unrealistic and technical approach that prolongs litigation. The Court allowed the appeal, setting aside the ex parte decree on payment of costs, thereby underscoring a practical approach.

The principle that a party should not unduly suffer for the bona fide mistake or negligence of their counsel, provided the party themselves has been diligent, was highlighted in Malkiat Singh And Another v. Joginder Singh And Others[1]. The Court found that the appellants were not careless or negligent and should not suffer due to their counsel reporting "no instructions" in their absence.

In Parimal v. Veena Alias Bharti[8], while dealing with Order IX, Rule 13, the Supreme Court elaborated that "sufficient cause" means an adequate and elastic reason that prevented a party from appearing, which was beyond their control. The burden of proof lies on the applicant.[8]

The Delhi High Court in S.S. Builders v. Sita Rani Ahuja[16], applying Supreme Court precedents, held that if the explanation for non-appearance, read as a whole, makes out sufficient cause, the court should adopt a pragmatic approach and not shut out a party by adopting a hypertechnical view, though costs can be imposed to compensate the other side.

Procedural Law in Service of Substantive Justice

The overarching judicial philosophy is that procedural laws are handmaidens of justice, designed to advance, not thwart, the cause of substantive justice. The dismissal of an Order IX, Rule 9 application, particularly for default, carries severe repercussions for the plaintiff, as it effectively bars them from agitating the same cause of action afresh.

The poignant words of Krishna Iyer, J. (concurring) in Sushil Kumar Sen v. State Of Bihar[2] resonate deeply: "The wages of procedural sin should never be the death of rights." This sentiment underpins the judiciary's inclination to provide avenues for restoration, ensuring that meritorious cases are, as far as possible, decided on their merits rather than being extinguished by procedural defaults.

As observed in Kanailal Khan v. Anil Kumar Khan[9], Order IX, Rule 9 applies only if the suit is dismissed under Rule 8, which in turn is attracted when the defendant appears and the plaintiff does not appear when the suit is called on for hearing. If these foundational conditions are not met for the original suit's dismissal, the entire premise of the O9R9 application might be questionable, though this relates more to the validity of the initial O9R8 dismissal than the remedies for a dismissed O9R9 application.

Conclusion

The dismissal of an application under Order IX, Rule 9 of the CPC for default of appearance or non-prosecution does not necessarily spell the end of the road for a diligent plaintiff. Indian jurisprudence, while emphasizing procedural compliance, has carved out pathways to ensure that substantive justice is not sacrificed at the altar of procedural rigidity. The primary remedies available include:

  1. Filing a further application for the restoration of the dismissed Order IX, Rule 9 application, typically by invoking Order IX, Rule 9 itself read in conjunction with Section 141 CPC.
  2. Seeking recourse under the inherent powers of the court as enshrined in Section 151 CPC, particularly if the applicability of Order IX, Rule 9 read with Section 141 is considered doubtful in a specific jurisdiction or context.
  3. Preferring an appeal under Order XLIII, Rule 1(c) CPC, contingent upon the interpretation that "rejecting an application" includes dismissal for default – a view that has gained considerable traction.

In all such proceedings, the demonstration of "sufficient cause" for the non-appearance(s) remains the critical determinant. The courts, guided by principles of equity and the imperative to adjudicate disputes on their merits, generally adopt a liberal and pragmatic approach, often balancing the litigant's right to be heard with the need to prevent undue delay and compensate the opposing party through costs. The evolution of law, significantly shaped by authoritative Full Bench decisions of various High Courts, continues to refine these remedial avenues, striving to uphold the ultimate objective of the judicial process: the delivery of justice.

References

  1. [1] Malkiat Singh And Another v. Joginder Singh And Others (1998 SCC 2 206, Supreme Court Of India, 1997)
  2. [2] Sushil Kumar Sen v. State Of Bihar . (1975 SCC 1 774, Supreme Court Of India, 1975)
  3. [3] G.P Srivastava v. R.K Raizada And Others (2000 SCC 3 54, Supreme Court Of India, 2000)
  4. [4] Robin Thapa v. Rohit Dora . (2019 SCC 7 359, Supreme Court Of India, 2019)
  5. [5] Ganga Bai v. Vijay Kumar And Others (1974 SCC 2 393, Supreme Court Of India, 1974)
  6. [6] Panna Lal And Another, Judgment-Debtors-, v. Mussammat Naraini (Decree-Holder) And Mussammat Basso, (Judgment-Debtor), (1948 SCC ONLINE P&H 10, Punjab & Haryana High Court, 1948)
  7. [7] Arjun Singh v. Mohindra Kumar (Company Law Board, 2011) [Note: While cited as Company Law Board, the principles of res judicata discussed are general.]
  8. [8] Parimal v. Veena Alias Bharti . (2011 SCC 3 545, Supreme Court Of India, 2011)
  9. [9] Kanailal Khan v. Anil Kumar Khan (Calcutta High Court, 1973)
  10. [10] State Of Uttar Pradesh And Another v. Jagdish Sharan Agrawal And Others (Supreme Court Of India, 2008)
  11. [11] M.S Ramiah And Others v. The Special Land Acquisition Officer, Bangalore (Karnataka High Court, 1973)
  12. [12] Ramesh Chandra Chatterjee v. Director General Of Observatories And Another Opposite Parties. (Calcutta High Court, 1953)
  13. [13] Promode Ranjan Banerjee v. Nirapada Mondal Opposite Party. (Calcutta High Court, 1979)
  14. [14] Rambati Bai v. Govind Narayan Sharma (Madhya Pradesh High Court, 2024)
  15. [15] Sudha Chandrashekaran K. v. Sasikala & Ors. (Kerala High Court, 2012)
  16. [16] S.S. Builders v. Sita Rani Ahuja (Delhi High Court, 2003)
  17. [17] AMRUDDIN ANSARI (DEAD)THROUGH LRS v. AFAJAL ALI (Supreme Court Of India, 2025)
  18. [18] P.k. Abdul Rahim v. Ummerechindavide Abdul Rahim And Others (Kerala High Court, 2021)
  19. [19] Kara Chinnappa Naidu v. B.K Deenadayalu Naidu. (1948 SCC ONLINE MAD 53, Madras High Court, 1948)
  20. [20] Laxmi Investment Co. Pvt. Ltd. Akola (In Liq.) v. Tarachand Harbildas (1967 SCC ONLINE BOM 42, Bombay High Court, 1967)
  21. [21] Gaja v. Mohd. Farukh (1961 SCC ONLINE ALL 233, Allahabad High Court, 1961)
  22. [22] Nathu Prasad v. Singhai Kapurchand (1976 SCC ONLINE MP 15, Madhya Pradesh High Court, 1976)
  23. [23] Yagammal v. Arulayee Ammal (1929 SCC ONLINE MAD 192, Madras High Court, 1929)
  24. [24] Bula Dabloo… v. Sri Kanth Handoo…. (Jammu and Kashmir High Court, 1962)
  25. [25] Gaja…Applicant; v. Mohd. Farukh And Others…Opposite Party. (Allahabad High Court, 1961)
  26. [26] C. Chenchanna Naidu v. Praja Seva Transports Ltd., Cuddappah And Anr. (Madras High Court, 1951)
  27. [27] Vijay Kumar Gupta v. Yugal Kishore Shrivastav (Madhya Pradesh High Court, 2016)