Order IX Rule 3 CPC - Dismissal of Suit When Neither Party Appears
Order IX Rule 3 of the Code of Civil Procedure, 1908 (CPC), empowers a civil court to dismiss a suit when neither the plaintiff nor the defendant appears when the case is called for hearing. The plaintiff may seek restoration under Order IX Rule 4 or institute a fresh suit, subject to limitation.
Order IX Rule 3 CPC - Statutory provision
Heading: 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.
The provision appears in Order IX: Appearance of Parties and Consequence of Non-Appearance, in the First Schedule to the CPC. The word "may" indicates that dismissal is discretionary rather than automatic in every case.
When does Order IX Rule 3 apply?
The rule concerns a suit called for hearing where both sides are absent. Appearance may be through a duly authorised pleader where permitted by law. If neither side appears, the court has power to dismiss the suit for default of appearance.
Essential elements
- A civil suit is before the court and is called for hearing.
- Neither the plaintiff nor the defendant appears as required.
- The court considers whether to exercise its discretion to dismiss the suit.
A dismissal under Rule 3 is generally a dismissal for default, not a determination of the substantive merits of the plaintiff's claim. The exact remedy depends on the order actually passed and the procedural circumstances.
Restoration under Order IX Rule 4 CPC
Order IX Rule 4 governs the remedies following dismissal under Rule 2 or Rule 3. The plaintiff may apply to the court to set aside the dismissal. If the plaintiff satisfies the court that there was sufficient cause for non-appearance, the court shall set aside the dismissal and appoint a day for proceeding with the suit.
The application should explain the absence and be supported by relevant material. The applicable limitation period must also be considered. Under Article 122 of the Limitation Act, 1963, the general period for an application to restore a suit dismissed for default of appearance is 30 days from the date of dismissal, subject to applicable legal provisions on computation and condonation of delay.
Can the plaintiff file a fresh suit?
Yes. Order IX Rule 4 expressly permits a fresh suit after dismissal under Rule 3, subject to the law of limitation. A fresh suit is not automatically within time merely because the earlier suit was filed in time. Restoration and institution of a fresh suit are distinct remedies.
How Rule 3 differs from other provisions
Order IX Rule 2
Concerns non-service of summons due to the plaintiff's failure to pay service charges or provide required copies. Rule 4 also provides a remedy for a dismissal under Rule 2.
Order IX Rule 8 and Rule 9
Rule 8 generally addresses the situation where the defendant appears but the plaintiff does not. Rule 9 governs the consequences and restoration of dismissal under Rule 8, including the restriction on bringing a fresh suit on the same cause of action. This differs from the express fresh-suit option under Rule 4 following dismissal under Rule 3.
Order IX Rule 5
Deals with failure to apply for fresh summons after summons have been returned unserved. The current central text refers to seven days, rather than the outdated one-month wording still found in some older reproductions. Applicable local amendments and court rules should also be checked.
Frequently asked questions
Is dismissal under Order IX Rule 3 mandatory?
No. The provision uses "may", giving the court discretion to dismiss when neither party appears.
Which rule permits restoration of a suit dismissed under Rule 3?
Order IX Rule 4 CPC. The plaintiff must establish sufficient cause for non-appearance.
Does a dismissal under Rule 3 prevent a fresh suit?
No. Rule 4 permits a fresh suit, subject to the law of limitation.
What if only the plaintiff is absent?
If the defendant appears and the plaintiff is absent, Order IX Rule 8 may apply, with remedies governed by Rule 9 rather than Rule 4.
Official legislation and further reading
Read the Code of Civil Procedure, 1908 (India Code, official PDF), especially Order IX Rules 1 to 9. For the limitation provision, consult the India Code official legislation portal and search for the Limitation Act, 1963, Article 122.
This article explains the central statutory framework. State amendments, High Court rules and case-specific facts may affect the procedure.