What Constitutes Dismissal for Default?
Dismissal for default typically refers to the rejection or termination of a suit when the plaintiff fails to appear before the court on the date of hearing or does not prosecute the case with due diligence. It may also occur if the defendant fails to appear in certain situations. This dismissal is governed mainly under Order IX Rule 8 and Rule 9 of the Code of Civil Procedure.
- Order IX Rule 8: If the defendant appears and the plaintiff does not, the court is permitted to dismiss the suit.
- Order IX Rule 9: A bar is created for re-filing the same suit unless an application for restoration is successfully made.
Conditions Leading to Dismissal
A suit may be dismissed for default under the following conditions:
- Non-appearance of the Plaintiff: If the plaintiff fails to attend court without reasonable cause.
- Failure to Take Steps for Summons: When a party fails to comply with procedural steps like issuing summons.
- Failure to Pay Costs Ordered by Court: When previous conditional orders are not complied with.
- Lack of Prosecution: If a suit is delayed unnecessarily due to inaction.
These conditions are recognized in various provisions under the C.P.C., including Order IX Rules 2, 3, and 8.
Legal Remedy for the Aggrieved Party
A party aggrieved by a dismissal for default is not left without recourse. The Code of Civil Procedure provides a well-defined remedy. The key remedy lies in filing an application for restoration of the suit under Order IX Rule 9.
1. Order IX Rule 9 – Application for Restoration
Order IX Rule 9 allows a plaintiff whose suit has been dismissed under Rule 8 to apply for setting aside the dismissal. However, this application must be filed within the prescribed limitation period of 30 days under Article 122 of the Limitation Act, 1963.
Essentials of Rule 9:
- Application must show “sufficient cause” for non-appearance.
- The cause must be bonafide and not due to negligence.
- Affidavits and supporting documents must be filed to substantiate the claim.
If satisfied with the explanation, the court may restore the suit and proceed to adjudicate on merits.
Meaning of “Sufficient Cause”
The term “sufficient cause” is not defined under the C.P.C., but judicial precedents have clarified its meaning. It should be interpreted liberally to advance substantial justice. Some valid reasons include:
- Sudden illness of the party or counsel.
- Natural calamities or unexpected transportation issues.
- Wrong date or time recorded by the advocate.
- Delay caused by procedural confusion.
Case Reference:
In G. P. Srivastava v. R. K. Raizada, AIR 2000 SC 1221, the Supreme Court held that liberal interpretation must be given to the term “sufficient cause” to ensure justice is not denied on technical grounds.
Application Procedure for Restoration
To restore a suit dismissed for default, the following procedural steps are to be followed:
- Drafting of Application: The plaintiff must file an application under Order IX Rule 9, supported by an affidavit stating reasons for non-appearance.
- Filing Within Limitation: The application must be submitted within 30 days from the date of dismissal.
- Notice to Opposite Party: Upon admission, notice is issued to the defendant for hearing.
- Hearing of Application: Both parties are heard, and if the court finds merit, the dismissal is set aside.
Alternative Remedies under C.P.C.
In some situations, an aggrieved party may resort to the following alternate provisions:
A. Section 151 – Inherent Powers of the Court
If procedural rules under Order IX are not applicable, the court can invoke its inherent powers under Section 151 C.P.C. to prevent abuse of process and to secure ends of justice.
B. Review or Appeal
If the suit is dismissed and the order is adverse, the party may file a review under Section 114 or, if the order is appealable, an appeal under Section 96 C.P.C.
However, not all orders of dismissal are appealable. A restoration application is the more direct remedy.
Suit Dismissed for Default of Defendant: Ex Parte Decree
While the focus here is on plaintiff default, it is worth noting that if a defendant fails to appear, the court may pass an ex parte decree under Order IX Rule 6. The defendant can seek setting aside such decree under Order IX Rule 13 by proving:
- He was not duly served with the summons; or
- He was prevented by “sufficient cause” from appearing.
Judicial Approach: Favoring Adjudication on Merits
Courts have consistently leaned towards deciding cases on merits rather than on technical defaults. The judiciary favors restoration of suits where default was not deliberate.
Case Law Example:
In Sangram Singh v. Election Tribunal, AIR 1955 SC 425, the Supreme Court emphasized that procedural laws are handmaids of justice and should not defeat substantive rights due to technicalities.
Dismissal for Default vs. Dismissal on Merits
It is essential to distinguish between these two:
| Criteria | Dismissal for Default | Dismissal on Merits |
|---|---|---|
| Basis | Procedural lapse | Judicial decision after trial |
| Appeal | Not generally appealable | Appealable |
| Remedy | Restoration under Order IX | Appeal under Section 96 |
| Preclusion | No res judicata | Res judicata applies |
Restoration of Appeal Dismissed for Default
Appeals dismissed for default can also be restored under Order XLI Rule 19. The appellant must file an application for re-admission of appeal and establish sufficient cause for absence.
Important Limitations and Considerations
- Limitation Period: Application must be filed within 30 days (extendable under Section 5 of Limitation Act with sufficient cause).
- Bonafides: Courts examine intent and conduct of the party throughout the proceedings.
- Delay Condonation: If application is delayed, separate delay condonation petition must be filed.
Recent Judicial Trends
Courts in India are increasingly adopting a liberal and justice-oriented approach to restore dismissed suits. Technical grounds are avoided unless mala fide conduct is proven. However, chronic negligence or repeated defaults are not condoned.