Ms. Sanjana Rao is a 3rd Year B.A., LL.B. (Hons.) student at National Law School of India University, Bangalore.
The appearance of parties in civil litigation is a fundamental procedural requirement essential for the effective administration of justice. The Code of Civil Procedure, 1908 (hereinafter referred to as CPC), delineates the procedure for the appearance of parties, under Order IX.[1]
This blog seeks to examine the practical effects of the operation of these rules through first, a socio-economic lens; and second, from the perspective of efficiency. I propose that the issues posed by the current procedure under Order IX can be abated through the successful implementation of virtual appearance. To this end, I have divided this blog post into three sections. The first section provides a broad overview of the scheme of Order IX by laying out the consequences of non-appearance of parties and how the remedies to such consequences operate. The second section brings out the challenges faced by this procedure through firstly, an analysis through a socio-economic lens; and secondly, from the perspective of efficiency. In the final section, I argue that virtual appearance should be made a right in India and I propose a means to that end by first, examining the role that virtual appearance would play in abating the socio-economic and efficiency issues highlighted in the previous section; second, analysing the existing provisions and position of law with regards to the virtual appearance of parties in India; and lastly, proposing measures that must be undertaken to ensure virtual appearance becomes a right in India with reference to other jurisdictions.
A Broad Overview of the Appearance of Parties under Order IX
The rules governing the appearance of parties is outlined in Order IX of the CPC.[2] Rule 1 requires the parties to the suit to appear in person or through their pleaders on the day fixed in the summons.[3]
In cases where only the defendant appears and the plaintiff fails to appear, Rule 8 provides that the Court shall dismiss the suit unless the defendant admits the whole or part of the claim.[4] If the court is satisfied that there was sufficient cause for non-appearance, it may set aside the order of dismissal and fix a day for proceeding with the suit.[5] This is based on the principle that a cause of action should never be dismissed without hearing the aggrieved party.[6]
Conversely, when the plaintiff appears and the defendant fails to appear, the Court may make an order to hear the suit ex-parte in cases where the service of summons is proved.[7] However, as reflected in Arjun Singh v Mohindra Kumar, even if the defendant is unable to prove sufficient cause for their previous non-appearance, they are permitted to participate in further proceedings from the date of their appearance.[8] The underlying principle is that the defendant has the right to defend themself up until the suit is finally decided.[9]
A defendant has many concurrent remedies if an ex-parte decree is passed against them. The defendant may file for the setting aside of the decree under Rule 13.[10] They may concurrently appeal the decree in an appellate court under Section 96 (2) of the CPC.[11] They can also file for review of the decision under Order 47 Rule 1,[12] or file a suit to set aside the decree on the grounds of fraud,[13] as the remedies provided under the CPC can be pursued simultaneously.[14]
The Practical Implications of the procedure under Order IX
This section examines firstly, the socio-economic effect of Order IX, and secondly, its efficiency. These perspectives bring out the challenges faced on the ground today with respect to the civil procedure of appearance of parties.
The Socio-economic Impact of Order IX of the CPC
It is known that the process of litigation itself has a disproportionate impact on socio-economically weaker sections of society.[15] The procedure under Order IX of the CPC further exacerbates this impact. Rule 1 mandates that parties appear in person or through their pleaders.[16] Those from socio-economically weaker sections of society may struggle to appear in person as they are likely to reside far away from the Court complex, which is usually located in popular cities.[17] Further, such sections of society do not have easy access to pleaders. Order XXXIII Rule 9A allows for the Court to appoint pleaders for suits brought by indigent persons. However, not all socio-economically weaker individuals may be able to file a suit as an indigent.[18] Order XXXIII Rule 1 explains that an indigent person is categorized through the economic value of their property.[19] This excludes several marginalized sections of society as firstly, Rule 1 provides for a very high threshold of only owning property of value lesser than a thousand rupees for a person to be considered indigent. This has a disproportionate impact on litigation costs for individuals that closely fail in fulfilling the criteria under Rule 1. Secondly, Rule 1 only accounts for economic backwardness and ignores the role of social backwardness in pursuing litigation. Those belonging to depressed castes and communities face greater barriers in litigation due to discrimination.[20] Thus, many socio-economically backward individuals remain excluded from the provisions made for indigents and thus lack access to pleaders for appearance under Order IX Rule 1.
Further, the CPC attempts to balance the rights of parties with the prejudice caused to the other party through the imposition of costs. Order IX Rule 7 provides for turning back the clock upon the defendant’s payment of costs. Further, an ex-parte decree against the defendant can be set aside upon payment of costs. Similarly, an order of dismissal of the suit due to the plaintiff’s non-appearance can be set aside if costs are paid. This is based upon the principle that any prejudice to the other party can be compensated with costs, based on Section 35B of the CPC.[21] It allows courts to impose costs as a condition precedent on a party causing delay.[22] This has a disproportionate impact on socio-economically weaker sections of society, who may fail to appear in Court on the specified date due to existing barriers. The imposition of costs on such delays potentially denies them the opportunity to plead their suit due to circumstances beyond their control.
The Efficiency of the Procedure under Order IX
One of the main objectives of the CPC is the expeditious disposal of cases and the quick resolution of disputes.[23] Measures undertaken to promote efficiency are reflected in the amendments that have been made to Order IX over the years. The time available to the plaintiff under Order IX Rule 5 (1) to apply for a fresh summons after initial summons was returned unserved has reduced progressively over the years from one year in 1908 to seven days today.[24]
However, the procedure for the consequences of non-appearance of parties and the remedies thereof is not in its most efficient form. Order IX Rule 7 allows the defendant to turn back the clock and start proceedings afresh.[25] Rule 13 also provides for a defendant to set aside an ex-parte decree.[26] Similarly, Rule 9 allows a plaintiff to set aside a dismissal.[27] Orders and decrees can be set aside for ‘sufficient cause’. As reflected in Shamdasani v Central Bank of India Ltd, Courts have liberally construed this definition of ‘sufficient cause’.[28] The Supreme Court has held that ‘sufficient cause’ would include anything other than misconduct or gross negligence.[29] This has caused scores of decrees that were passed using the time and resources of the Court to be set aside, and fresh proceedings on the same matter to be reinitiated. This causes significant delay and backlog in the court system.
Virtual Appearance: A Revolutionary Solution or a Mere Ideal?
The appearance of parties or their pleaders on the date fixed for appearance in the summons through video conferencing or other digital communication platforms is referred to as virtual appearance.[30] This section firstly, examines the role that virtual appearance plays in abating the socio-economic and efficiency issues highlighted in the previous section; secondly, analysesthe existing provisions and position of law with regards to the virtual appearance of parties in India; and lastly, proposes measures that must be undertaken to secure virtual appearance as a right in India.
The Role of Virtual Appearance in Abating Order IX’s Socio-Economic and Efficiency Issues
In the previous section, I highlighted how the procedure for appearance of parties under Order IX of the CPC has a disproportionate impact on socio-economically backward sections of society. I also argued that the setting aside of orders of dismissal and ex-parte decrees negatively impacts the efficiency of the court process. These issues however can be abated through virtual appearance. Socio-economically backward sections of society often reside far from the court complex and find it unfeasible to appear in Court for every hearing of their case.[31] The cost and time taken to travel to Court increases the likelihood of parties failing to appear.[32] The right to virtual appearance bridges this gap by making it easier for a party to be present during their hearing.
Additionally, litigants have wider access to pleaders to represent them if the pleader can appear virtually. Lawyers often sit in Court for hours to appear for minutes while charging fees to their clients the whole time.[33] Virtual appearance of pleaders on behalf of the parties saves huge costs for the party, thus benefitting socio-economically weaker sections of society.
Virtual appearances are also more efficient. As argued previously, the right of virtual appearance reduces the likelihood of parties failing to appear. Therefore, the incidents of decrees and dismissals being set aside due to non-appearance are reduced, thus saving the resources of the Court, both in terms of costs and time.
The Current Indian Position on Virtual Appearance
The text of the CPC does not explicitly provide for the appearance of parties through video-conferencing or other virtual means. However, as reflected in Sangita Sharma v Rohit Kalia,[34] virtual appearances have been allowed and conducted in civil litigation in certain cases. Its legitimacy can be derived from Section 151 of the CPC. Section 151 saves the inherent powers of Courts to make any orders in the interest of justice.[35]
The Indian judiciary underwent a nation-wide transition into virtual courtrooms during the Covid-19 pandemic, through which new procedures and courtroom modalities were developed.[36] The Supreme Court released guidelines under Article 142 of the Constitution[37] for the functioning of virtual courtrooms during the pandemic through In Re: Guidelines for Court Functioning through video conferencing during Covid-19 Pandemic.[38] The SC noted that although the pandemic was temporary, technology was here to stay, and video conferencing could not be seen as a temporary measure.[39] In pursuance of this, 28 High Courts implemented their own videoconferencing guidelines.[40] According to these guidelines, a litigant can apply for online appearance, the granting of which is subject to the discretion of the Court.[41]
Infrastructural changes to courts have been made to allow for easier virtual hearings, such as providing videoconferencing equipment to court complexes, sanctioning funds for further equipment, and setting up videoconferencing cabins and acquiring licenses.[42] The Uttarakhand HC launched mobile e-courts vans equipped with Wi-Fi and videoconferencing equipment to provide access to justice to remote hill areas that are not physically proximate to courts.[43]
However, the Supreme Court stated that virtual hearings were a mere temporary measure and rejected a petition demanding virtual hearings as a fundamental right.[44] Despite the progressive measures that have been taken, the virtual appearance of parties in civil disputes continues to be a mere exception subject to the Court’s discretion. It needs to become a right for it to become a reality in Indian civil procedure.
Measures that must be Implemented for the Successful Implementation of Virtual Appearance in India
While India boasts of the infrastructural developments that aim to bolster virtual hearings, these changes have only been made from one end. The provision for videoconferencing equipment and allocation of funds for providing such equipment has only been directed towards courtrooms. I argue that virtual appearance can never become an actual alternative to physical appearance unless measures are undertaken to provide virtual access to courts to litigants who do not have access to such systems.
Only 52% of India’s population even has access to an internet connection.[45] Virtual appearance cannot become a reality unless provisions are made to provide easy and free access to videoconferencing services. The US State of Missouri for example, has provided a phone-in option to facilitate virtual hearings for parties without access to the internet, while simultaneously initiating a program to provide low-income families with mobile phones.[46] Turkey has UYAP, a national e-judiciary system linked to an advanced video-conferencing platform that has been made available and easily accessible to all citizens.[47] Similarly, Italy has an online civil trial facility that provides for virtual appearance for all civil cases throughout the country.[48]
While India has shortlisted Bharat VC as its uniform videoconferencing platform,[49] measures need to be implemented to ensure nationwide access to this platform. This can be achieved through the establishment of videoconferencing kiosks across remote regions of the country while simultaneously enacting a scheme to increase digital literacy amongst both litigants and court officials. Other long-term measures that can be implemented include increasing nation-wide access to internet services through easy availability and cost reduction.
The enactment of these measures, although long-term, will make virtual appearances an actual alternative and not merely an exception in civil procedure.
Conclusion
While Order IX of the CPC aims to maintain a balance between the rights of parties and the efficiency of the judicial process, it places a disproportionate burden on socio-economically weaker sections of society. The requirement for appearance in court either personally or through pleaders and the imposition of costs for delays or non-appearance poses a barrier to justice and exacerbates existing inequalities. Moreover, they contribute to inefficiencies within the legal system, leading to delays and increased costs.
Virtual appearance provides a promising solution to these challenges by allowing more accessible and cost-effective means for parties to appear in legal proceedings. It benefits socio-economically backward sections of society and reduces inefficiencies by saving time and costs. However, for virtual appearance to be truly effective, comprehensive measures must be implemented to ensure widespread access to digital infrastructure and services. Only then can virtual appearance be transformed from an exception to a right.
[1] The Code of Civil Procedure 1908, Order IX.
[2] ibid.
[3] The Code of Civil Procedure 1908, Order IX, Rule 1.
[4] ibid, Rule 8.
[5] CK Thakkar, Civil Procedure (first published 1983, Eastern Book Company 2011) 270.
[6] Shamdasani v. Central Bank of India Ltd, AIR 1938 Bom 199, 202, (Beaumont CJ).
[7] The Code of Civil Procedure 1908, Order IX, Rule 6.
[8] Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993.
[9] East India Cotton Mfg. Co. Ltd. y. S.P. Gupta. 1985 DLT 22.
[10] The Code of Civil Procedure 1908, Order IX, Rule 13.
[11] ibid, s 96 (2).
[12] ibid, Order 47, Rule 1.
[13] Mulla, Civil Procedure Code (2007) Vol. II, pp. 588-89; See also Rupchand Gupta v. Raghuvanshi (P)Ltd., AIR 1964 SC 1889.
[14] Rani Choudhury v. Suraj Jit Choudhury, AIR 1981 SC 1393.
[15] Jessica K Steinberg, ‘Demand Side Reform in the Poor People’s Court’ [2015] 47 CLR 3.
[16] The Code of Civil Procedure 1908, Order IX, Rule 1.
[17] ibid.
[18] The Code of Civil Procedure 1908, Order XXXIII, Rule 9A.
[19] ibid, Rule 1.
[20] GC Pal, ‘Caste and Consequences: Looking through the lens of Violence’ [2020] Global Journal on Social Exclusion Vol. 1 (1), pp 95-110.
[21] The Code of Civil Procedure 1908, s 35B.
[22] Hakmi v. Pitamber, AIR 1978 P&H 145 at 146; See also Vernekar Industries v. Starit Engg. Co. (P) Ltd., AIR 1985 Bom 253.
[23] Law Commission, The Code of Civil Procedure 1908 (Law Com No 27, 1964), p 5.
[24] Law Commission, The Code of Civil Procedure 1908 (Law Com No 54, 1973), p 136.
[25] The Code of Civil Procedure 1908, Order IX, Rule 7.
[26] ibid, Rule 13.
[27] ibid, Rule 9.
[28] ibid (n 6).
[29] Sudha Devi v. M.P. Narayanan, (1988) 3 SCC 366.
[30] David Tait & Martha McCurdy, ‘Justice reimagined: challenges and opportunities with implementing virtual courts’ (2021) 33 (1) Current Issues in Criminal Justice <https://www.tandfonline.com/doi/full/10.1080/10345329.2020.1859968?needAccess=true>.
[31] ibid (n 15).
[32] ibid.
[33] Bannon AL & Keith D, ‘Remote Court: Principles for Virtual Proceedings during Covid and Beyond’ [2021] NWULR 115 (6).
[34] Sangita Sharma v Rohit Kalia 2021 SCC OnLine HP 4621.
[35] The Code of Civil Procedure 1908, s 151.
[36] Chad Flanders & Stephen Galoob, ‘Progressive Prosecution in a Pandemic’ [2020] Journal of Criminal Law and Criminology 110 (4) 685-706.
[37] Constitution of India 1950, art. 142.
[38] In Re: Guidelines for Court Functioning through video conferencing during Covid-19 Pandemic 2020 SCC OnLine SC 355.
[39] ‘Supreme Court frames guidelines for hearing of cases via video conferencing’ India Legal (Delhi, 6 April 2020).
[40] Department of Justice, ‘e Courts MPP> Videoconferencing’ <https://doj.gov.in/video-conferencing/> accessed 15 August 2024.
[41] See Videoconferencing Rules Notification 2021 (No. 348/Rules/DHC).
[42] ibid (n 40).
[43] Prashant Jha, ‘Wheels of Justice: ‘E-court vans to reach remote Uttarakhand hills’ The Times of India (Dehradun, 11 August 2021).
[44] Abraham Thomas, ‘Virtual Court can’t be the norm, says Supreme Court; explains its reservations’ Hindustan Times (Delhi, 8 October 2021).
[45] World Bank, Individuals Using the Internet: in % (ITU/ ICT Indicators Database).
[46] Tony Romm, ‘Lacking a Lifeline: How a Federal Effort to Help Low-Income Americans Pay Their Phone Bills Failed Amid the Pandemic’ Washington Post (Missouri, 9 February 2021).
[47] Rajya Sabha Standing Committee on Personnel, Public Grievances, Law and Justice, Functioning of Virtual Courts/ Court Proceedings through Videoconferencing (103rd Report) para 1.16.
[48] ibid, para 1.18.
[49] ibid (n 40).
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