Restoration under CPC order 9

rule 9

Restoration of dismissal of suit

When the Defendant only Appears

Restoration of appeal happens when the plaintiff fails to appear on the date fixed and only the
defendant appears, the court may pass an order of dismissal of the suit and the plaintiff with
reasonable grounds wants to restore the same suit.
Only the defendant appears and the plaintiff fails to appear, on the time and date fixed, then
according to CPC Order 9 Rule 8 which says that if the plaintiff is absent and the defendant is
present then suit can be dismissed by the court order.

Oeder 9 Rule 8 of CPC states that, “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.”

The court will detect that whether the defendant has admitted the claim or rejected the same
where the defendant may admit whole or a part of the claim or reject whole or a part of the
claim.
If the defendant admits the whole claim then the suit will not dismiss but the suit will decree
against defendant similarly in the admission of the portion of the claim will become decree
against the defendant. Whereas the rejected claim will get dismissed.
Consequences when the Plaintiff does not appear
● The plaintiff cannot file a fresh suit on the same cause of action.
● The plaintiff can apply to set aside or restoration of the dismissal order by the court.
● The plaintiff can file restoration application under Section 151 of CPC.
● The plaintiff has to satisfy the court for restoration of appeal and only if the court gets
satisfied with the grounds for restoration by the plaintiff then the court can impose a cost
or otherwise fix the date.
● When the plaintiff applies for restoration of appeal by default to set aside dismissal order
by the court, he is supposed to give a copy to opposite party ie., the Defendant
● At the time of hearing for the restoration of appeal by default, the plaintiff and the
defendant’s presence is compulsory
● The court will not pass any order without hearing the defendant’s side, the opposite party
has to give notice in compulsion.

According to Order IX Rule 9 of CPC, “Decree against plaintiff by default bars fresh suit. -
(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from
bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set
the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-
appearance when the suit was called on for hearing, 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.
(2) No order shall be made under this rule unless notice of the application has been served on
the opposite party.”
 The format of application for restoration of suit
dismissed for default
Below is the sample affidavit format to be filed with an application under Order 9 Rule 9 of CPC
for the restoration of suit dismissed in default.

AFFIDAVIT: UNDER ORDER IX, RULE 9 OF THE CODE OF CIVIL PROCEDURE, 1908 –
RESTORATION OF SUIT DISMISSED FOR DEFAULT

In the Court of ________________, New Delhi

SUITE NO.________/2015

Application No………………..of 20…………. In

ABC______________________Plaintiff/Applicant:

Vs.

XYZ_______________________Defendant/Respondent:

AFFIDAVIT

I, NAME OF PERSON, Aged About ____ S/oD/oW/o _________ R/o ______________, do

solemnly affirm and declare as under:—

1. That I am the Power-of-Attorney holder on behalf of the Plaintiff to contest the present suit
before this Hon’ble Court.
2. That I am acquainted with the facts deposed to below and being so, I am fully competent and
duly authorized to swear to this affidavit.

3. That the suit was listed for final hearing on………20……………

4. That, unfortunately, in the morning of the aforesaid day, the plaintiff, who is an old and is
suffering from various old age ailments, fell ill suddenly.

5. That I had to take the Plaintiff to the hospital immediately, and by the time the deponent
arrived before this Hon’ble Court, the case had already been called out.

6. That the delay in the arrival of the deponent before this Hon’ble Court was not owing to any
negligence on my part, but entirely due to reasons beyond my control.

7. That the Plaintiff will suffer irreparable loss if the dismissal is not set aside and the suit
restored.

8. that this is my true statement.

DEPONENT

Verification

Verified at……………on this the………………day of…………., 20…………., that the contents of

the above affidavit are true and correct to the best of my knowledge, belief, and information
received by me from experts, and nothing material has been concealed therefrom.

Sd./

Deponent.
Solemnly affirmed and signed before me by the deponent, who is personally known to me, on
this the……………….day of……….., 20…………..
Counsel for the Deponent.

Note.—Affidavit to be attested by the appropriate authority prescribed under law.

Please note that this is just a sample affidavit format, the actual facts may differ. please talk to
your lawyer for legal advice before filling the same.

Grounds under which restoration is possible

● The provision for restoration of suit dismissed in default as per Order IX Rule 8,9 of
CPC, if the plaintiff satisfies the court with sufficient reasons as to why the plaintiff was
not able to appear before the court, then the suit was called for hearing. There should
be some “sufficient cause” for the restoration of the suit dismissed by default that the
court should agree to the same after hearing both of the parties (the plaintiff and the
defendant) in their presence.

What is “Sufficient Cause”?

The “sufficient cause” defined here is not a jacket formula or a defined term for reasons
for non-appearance of the party. It is all left to the court to decide, consider and test the
context of the facts of a particular case. Keeping in mind the object of all rules of
procedure.and the basic principle of justice, equity, and good conscience, the court is
supposed to conclude whether the application for restoration of suit dismissed in default
and grounds mentioned for same fall into the ambit of “sufficient cause” or not.

All the rules of procedure are made and do exist to substantiate the cause and course of
justice and not to hamper or obstruct its flow, so sufficient cause has to be judged and
 determined in each case with a justice-oriented concept in the light of the facts of each
case.1

● The other ground in which restoration of the suit by default is when the period of 30 days
from the date of dismissal order is not dissolved.
According to Section 122 of Limitation Act, 1963, the limitation period for filing
restoration of suit dismissed in default application is thirty days from the date of
dismissal additionally on failure to pay costs of service of process or to furnish security
for costs the person will not be able to file the application for restoration of suit dismissed
in default.2

Appeal against rejection of an application for

restoration of the suit

According to Order XLIII Rule 1 CPC, “ Appeal from orders:

An appeal shall be from the following orders under the provisions of section 104, namely:-
(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an
order to set aside the dismissal of a suit;”

1
http://www.shareyouressays.com/knowledge/legal-provisions-of-order-ix-of-code-of-civil-procedure-1908-
c-p-c-india-procedure-in-suits-during-hearing/114329
2
Limitation Act, 1963, Section 122.