A Plaintiff's Pathway to Reinstating a Dismissed Suit: Order IX, Rule 9A of the Code of Civil Procedure, 1908.

 

A Plaintiff's Pathway to Reinstating a Dismissed Suit:

Order IX, Rule 9A of the Code of Civil Procedure, 1908. 

Today we'll discuss Order 9, Rule 9A of the Code of Civil Procedure, 1908, a crucial provision for understanding the dismissal of a suit for non-appearance of the plaintiff. This rule was added by an amendment in 2006 to help expedite the disposal of cases.

Understanding Rule 9A

Rule 9A provides a mechanism for a plaintiff to set aside an order of dismissal passed under Rule 8 of the same Order. Previously, a plaintiff had to file a miscellaneous case under Rule 9 and provide evidence to show a "sufficient cause" for their non-appearance. However, this new rule provides a faster, more direct option.

Key Provisions of Rule 9A

• Application with Affidavit: A plaintiff must make an application to the court, supported by an affidavit, to set aside the dismissal.
• Time Limit: This application must be made within thirty days from the date the dismissal order was made.
• No Evidence Required: To avoid delay, the court can set aside the dismissal directly without requiring the plaintiff to provide evidence about the "sufficient causes" for their absence, which is a requirement under Rule 9.
• Payment of Costs: The court will require the plaintiff to pay a cost, which shall not exceed Taka one thousand. Although it's not explicitly stated in the rule whether this cost is paid to the other party or deposited in the court, it is understood that the cost may be paid to the defendant who appeared on the date of dismissal.
• Limitation on Use: This rule can only be used to set aside a dismissal once. This is a critical point; a second dismissal under Rule 8 cannot be set aside using Rule 9A.

Procedure After the Order

Once the court sets aside the ex-parte dismissal under sub-rule (1) of Rule 9A, it must serve a notice of this order to the defendant who appeared in the suit. The cost of serving this notice must be borne by the plaintiff.

Plaintiff's Options

With the introduction of Rule 9A, a plaintiff now has two distinct options if their suit is dismissed under Rule 8:

1. Application under Rule 9A: The plaintiff can apply to set aside the dismissal within thirty days without needing to adduce evidence to explain the cause of their non-appearance.
2. Regular Miscellaneous Case under Rule 9: The plaintiff can file a regular miscellaneous case under Rule 9. This approach would require the plaintiff to satisfy the court about the "sufficient cause" for their absence.

In my professional opinion as a judge, Rule 9A is a pragmatic addition to the Code of Civil Procedure. It strikes a balance between ensuring the plaintiff has an opportunity to continue their case and preventing unnecessary delays in the judicial process. It is a powerful tool, but its limitations—especially the "once only" provision—must be carefully considered by any practitioner. Always remember to attach an affidavit to your application; it's a procedural requirement that, if missed, can be fatal to your client's case.

About the Author

Nazmul Hasan

Senior Assistant Judge.

Professional Highlights

• Senior Assistant Judge / Senior Judicial Magistrate, 11^th  Bangladesh Judicial Service (BJS)
• Merit Position: 7^th  in the 11^th BJS

Academic Qualifications

• LL.B. (Hons.) – First Class First, University of Rajshahi
• LL.M. – First Class, University of Rajshahi

Honors & Achievements                                                                                             

• Prime Minister Gold Medalist – 2017
• Agrani Bank Gold Medalist for Academic Excellence –  2023