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Appearance Of Parties And Failure To Appear

CHAPTER 4. APPEARANCE OF PARTIES AND FAILURE TO APPEAR

Art. 65- Appearance need not be in person

(1)    Any appearance, application or act in or to any court need not be made or done by the party in person but may be made or done in accordance with the provisions of the preceding Chapter. Provided that any such appearance, application or act shall, if the court so directs, be made by the party in person, and provided further that the court shall not so direct unless it is essential for the proper determination of the suit that the party should apply or act in person.
(2)    The absence of any party in the course of the performance of duties assigned by the court to any person, such as a commissioner, local investigator, expert or any officer executing an order of court shall not  preclude such person from performing his duties and shall not constitute good cause for objecting to the findings of such person.

Art. 66- Appearance of one of several plaintiffs or defendants

(1)    Any one of two or more plaintiffs or defendants may be authorized by any other of them to appear or act for such other in any proceeding.
(2)    The authority shall be in writing signed by the party giving it and shall be filed in the case.
Art. 67- Appearance of partners
(1)    Where persons are sued as partners in the name of their firms they shall appear individually in their own names, but all subsequent proceedings shall continue in the name of the firm.
(2)    Where a summons is served in the manner provided by Art. 98 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued.
(3)    Any person so served may appear under protest, denying that he is a partner, but such an appearance shall not preclude the plaintiff from otherwise serving a summons on the firm and obtaining decree against the firm in default of appearance where no partner has appeared.

Art. 68- Power to require appearance of certain persons

(1)    The court may, at any stage of the suit, require the personal appearance of the secretary or of any director, or other  principal officer of a body corporate who may be able to answer material questions relating to the suit.
(2)    The court may also, in any case in which the government pleader is not accompanied by any person on the part of the Government who may be able to answer any material questions relating to the suit, direct the attendance of such a person.

 Art. 69 – Person to appear at hearing

(1)    On the day fixed for the hearing of the suit, the parties shall be in attendance in the court in person or by their respective agent or pleaders and the suit shall then be heard.
(2)    Where neither party appears when the suit is called on for hearing, the court shall make an order that the suit be struck out, or in cases of appeal, that the appeal be dismissed.
(3)    The provisions of sub-art. 2) shall  not apply where a party who has not been required to appear in person fails to appear but his agent or pleader appears.

Art. 70- Defendant failing to appear

Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing:
(a)    if it is proved that the summons was duly served, the suit shall be heard ex-parte:
(b)    if it  is not proved that the summons was duly served, the court shall direct a second summons to be served on the defendant,
(c)    If it is proved that the summons was not served on the defendant but not in sufficient time to enable him to appear on the day fixed therein, the court may adjourn the hearing:
(d)    If it is proved that the summons was not served on the defendant or any one of several defendants through the plaintiff’s negligence or default, the coat may adjourn the hearing  or order that the suit be struck out as against any defendant not served nor, in case of appeal, that the appeal be dismissed as against any respondent not served:
Provided that no order for striking out of the suit or the dismissal of the appeal under sub-art. (d) shall be made where, although the summons has not been served on the defendant  or respondent, the defendant or respondent appears in person or by agent or pleader when the suit or appeal is called on for hearing.

Art. 71- Effects of striking out

(1)    Where a suit is struck out under Art. 69 (2) or 70 (d), the plaintiff may bring a fresh suit on payment of full court fees.
(2)    Where he satisfies the court that there was sufficient cause for his non-appearance, the court may make an order dispensing from payment of court fees and shall appoint a day for proceeding with the suit.

Art. 72- Subsequent appearance

Where the court has adjourned the hearing of the suit ex-parte, and the defendant at or before such hearing, appears and shows good cause for his previous non-appearance, he may, up on such terms as to costs of otherwise as the  court may direct, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

Art. 73- Plaintiff failing to appear

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 up on such admission and, where party only of the claim has been admitted, shall dismiss the suit as it relates to the remainder

Art. 74- Effect of  dismissal

(1)    Where a suit is wholly or partly dismissed under Art. 73, or an appeal is dismissed under Art, 69 (2), 70 (d) or 73 the plaintiff shall be precluded from brining a fresh suit in respect of the same cause of action.
(2)    Nothing in sub-art. (1) shall prevent the plaintiff from applying for an order to set the dismissal aside within one month of such dismissal, and if he satisfies the court that there was sufficient cause for his non-appearance, 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.
(3)    No order shall be made under sub-art. (2) unless notice of the application has been served on the opposite party.

Art.75- Several parties failing to appear

(1)    Where one or more of several plaintiffs fail to appear, the court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks fit.
(2)    Where one or more of several defendants, although duly served fail to appear, the suit shall proceed, and the court shall, at the time or pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear.

Art. 76- Third party failing to appear

(1)    Where a third party duly summoned to appear under Art. 43
(2)    Fails without good cause to appear for the purpose of disputing the plaintiff’s claim as against the defendant on whose be half the summons was issued, or his own liability to the defendant he shall be deemed to admit the validity of the decree passed against such defendant and his own liability to contribute or indemnify, as the case may be, to the extent claimed by the defendant.
(2) Were judgment is given against the defendant, the defendants shall be entitled, after satisfying such judgment or, on the granting of an application to this effect, before satisfying such judgment, to judgment against the third party to the extent of the contribution or indemnity claimed by the defendant.

Art.77. – Party failing to appear in person

 A plaintiff or defendant who has been ordered to appear in person and fails with out good cause so to appear Shall be subject to all the provisions of the preceding articles applicable to plaintiffs and defendants , respectively, who do not appear.

Art.78.- Setting aside decree ex-parte against defendant

(1)    Any defendant against whom a decree is passed or order made ex-parte or in default of pleading may, within one month of the day when he became aware of such decree or order, apply to the court by which the decree was passed or order made for an order to set it aside.
(2)    If the defendant satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing or from filling his defense or reply, the court shall, after notice of the application has been served on the opposite party, make on order setting aside the decree or order as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit or re-hearing the appeal, as the case may be:
Provided that where the decree or order in such that it can not be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also.
(3) No decree or order shall be set aside under this Article on the sole ground that the applicants was absent at the time when the decree was passed or order made.