Order IX Rule 8 CPC - Procedure Where Only the Defendant Appears
Order IX Rule 8 of the Code of Civil Procedure, 1908 explains what a civil court must do when the defendant appears for the hearing but the plaintiff does not. It also protects an admitted claim from being lost solely because of the plaintiff's absence.
Text of Order IX Rule 8 CPC
Heading: 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.
Source: Code of Civil Procedure, 1908 - official India Code PDF, First Schedule, Order IX.
Meaning and scope of Order IX Rule 8
The rule addresses default by the plaintiff on a date when the suit is called for hearing and the defendant is present. The word shall indicates that dismissal is the prescribed consequence in the absence of an admission by the defendant. The court must nevertheless consider whether the procedural conditions for applying the rule are met, including the nature of the hearing and whether the plaintiff has legally appeared through counsel.
When can a suit be dismissed under Rule 8?
- The suit is called for hearing before the civil court.
- The defendant appears in person or through an authorised pleader, as permitted by law.
- The plaintiff fails to appear in the manner recognised by the CPC.
- The defendant does not admit the claim, or the portion of the claim for which dismissal is contemplated.
Appearance and the purpose for which the matter is listed are assessed from the record. Non-attendance on a date fixed solely for an administrative step may raise a different procedural question.
What if the defendant admits the claim?
Rule 8 expressly distinguishes absence of the plaintiff from the defendant's admission. If the defendant admits the entire claim, the court passes a decree upon that admission. If only part is admitted, the court passes a decree for that admitted part and dismisses the remainder of the suit. A decree on admission has a different legal character from an order dismissing a suit for default.
Illustration
A plaintiff sues for Rs. 2,00,000 but is absent when the matter is called. The defendant appears and admits liability for Rs. 75,000. Under Rule 8, the court may not simply dismiss the entire suit for default: it must pass a decree on the admitted Rs. 75,000 and dismiss the balance of the claim, subject to the legal validity and scope of the admission.
Restoration of a suit dismissed under Order IX Rule 8
Order IX Rule 9(1) bars a fresh suit on the same cause of action where a suit has been wholly or partly dismissed under Rule 8. Instead, the plaintiff may apply to have the dismissal set aside by establishing sufficient cause for non-appearance when the suit was called for hearing. If satisfied, the court sets aside the dismissal on such terms as to costs or otherwise as it considers fit and fixes a date for proceeding with the suit.
Order IX Rule 9(2) requires notice of the restoration application to be served on the opposite party before the court makes an order under that rule.
Limitation period
Article 122 of the Limitation Act, 1963 ordinarily prescribes 30 days from the date of dismissal for an application to restore a suit dismissed for default. Section 5 of that Act may permit condonation of delay in an eligible application on proof of sufficient cause. Applicable local amendments and special procedural rules should also be checked.
Difference between Order IX Rules 3, 4, 8 and 9
| Provision | Situation | Principal consequence |
|---|---|---|
| Rule 3 | Neither party appears | Court may dismiss the suit. |
| Rule 4 | Suit dismissed under Rule 2 or 3 | Fresh suit subject to limitation, or application to set aside dismissal. |
| Rule 8 | Only defendant appears | Dismissal, except decree to extent of defendant's admission. |
| Rule 9 | Suit dismissed under Rule 8 | Fresh suit on same cause barred; restoration possible on sufficient cause. |
Practical steps after dismissal
- Obtain the dismissal order and confirm whether it was passed under Order IX Rule 8.
- Identify and document the reason for the plaintiff's absence.
- Prepare an application under Order IX Rule 9 supported by an affidavit and relevant records.
- Check Article 122 limitation and, if necessary, whether an application for condonation of delay under Section 5 is maintainable.
- Arrange service of notice on the opposite party and comply with court directions.
These are general procedural steps, not a substitute for advice on the facts of a particular case.
Frequently asked questions
What happens if only the defendant appears in a civil suit?
Under Order IX Rule 8 CPC, the court ordinarily dismisses the suit when the plaintiff is absent and the defendant appears, subject to the exception for an admitted claim.
Can a suit dismissed under Order IX Rule 8 be restored?
Yes. Under Order IX Rule 9, the plaintiff may apply to set aside the dismissal by showing sufficient cause for non-appearance. Notice must be served on the opposite party.
Can the plaintiff file a fresh suit on the same cause of action?
No. Order IX Rule 9 generally bars a fresh suit on the same cause of action following dismissal under Rule 8.
What is the limitation period for restoration?
Article 122 of the Limitation Act, 1963 generally prescribes 30 days from the date of dismissal for an application to restore a suit dismissed for default, subject to applicable law.
Official statutory references
- Code of Civil Procedure, 1908 - India Code (official PDF): Order IX Rules 3, 4, 8 and 9.
- India Code official legislation portal: Limitation Act, 1963, Article 122 and Section 5.
Updated: 12 October 2026. General discussion of the central provisions; state amendments, High Court rules and case-specific orders may affect the procedure.