# Opposite Party Not Appearing in Court: What to Do > When the opposite party is not appearing in court, a civil suit can stall for years. Here is what ex parte proceedings, costs and mediation rules allow. Source: https://sudhirrao.com/insights/opposite-party-not-appearing-in-court-what-to-do Author: Sudhir Rao — Advocate, Supreme Court of India Category: Property Published: 2026-09-17 --- #### One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do. **Note:** Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies. **TL;DR:** When the opposite party is not appearing in court and summons was properly served on them, the suit does not have to wait for them. The court can proceed ex parte, refuse further adjournments, and order the absent side to pay costs. A mediation request does not delay anything by itself. It delays the case only when the other side skips the mediation too. Rohan Kulkarni's mother had been going to the civil court in Indore for close to a year. The opposite party had not. The suit was a property dispute filed by her as plaintiff, and summons had been served long ago. Date after date, the other side stayed away, and each hearing rolled into the next. Last month, the opposite side's advocate proposed mediation. She agreed. On the date fixed, she reached the mediation centre and waited. Nobody from the other side came. A message followed instead: could the session be held online? Another date, another adjournment, and a mother who had not missed a single hearing of her own case. There is only one side of this on record. The other side has not been heard, and the full file tells its own story. But the pattern of absence was there in the orders. Rohan approached the Chamber of Advocate Sudhir Rao after the earlier approach had produced nothing but fresh dates. The Chamber put the repeated non-appearance on record, opposed the further adjournment, and pressed the court to proceed ex parte against the absent party and to impose costs for the wasted hearings. The court allowed it. Advocate Sudhir Rao's experience in civil property matters helped secure that order. # Key Facts of the Case - A property dispute was filed as a civil suit before the civil court at Indore. - The mother is the plaintiff and had attended every single hearing. - Summons was duly served on the opposite party. - The opposite party did not appear on multiple dates, and the suit kept getting adjourned. - The opposite side proposed court-annexed mediation in early 2025, and the plaintiff agreed. - On the mediated date, the opposite party did not turn up and instead asked for an online session. - The Chamber recorded the non-appearance in writing and sought ex parte proceedings with costs. - The court declined the further adjournment and allowed the matter to proceed ex parte. # The Direct Legal Answer #### What can be done when the opposite party is not appearing in court? Move a written application. If summons was served and the defendant stays away without sufficient cause, the court can hear the suit in their absence under Order 9 Rule 6 of the Code of Civil Procedure, 1908. An oral request from the bar rarely moves things. A memo listing every date on which the other side failed to appear, with a prayer for ex parte hearing and costs, does. #### Does asking for mediation add to the delay? No, not by itself. A court can refer a dispute to mediation under Section 89 CPC, and that reference is lawful. The delay comes from the other side failing to attend the mediation, not from the referral. If the mediation fails, the mediator sends a report and the suit resumes on the original track. Press for the next date to be used for the suit, not for a fresh mediation slot. #### Will the case really be decided without them? It can be. And here's the thing: an ex parte decree is not the end of the story. Under Order 9 Rule 13 CPC, the defendant can apply to set it aside by showing sufficient cause. Which is exactly why proof of service and a clean record of non-appearance matter so much. # Advice in Such Cases **Consult with Lawyer:** The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation to come out. He is expert in the domain and can help you explain the difference between an adjournment the court actually granted and one that was never asked for. Fees vary by forum and by how much of the order sheet has to be read, and a counsel taking over mid-suit will spend the first sitting simply reconstructing what has happened so far. Pay the fee. Ask questions with it. Ask why the last three dates went the way they did, and what the next application will say. **Don't Miss Your Own Dates:** The single worst thing a plaintiff can do in this situation is stop attending. The defendant's absence is a weapon only while the plaintiff's presence is clean. If you skip a hearing, the court has a reason to treat both sides the same way. **Keep a Date Chart:** One page, one line per hearing. Date, what was listed for, who appeared, what the court ordered. After eight or ten hearings this page is worth more than memory. It is also the page the application is built from. **Keep the Proof of Service Safe:** The postal acknowledgement, the tracking printout, the process server's report, the affidavit of service. Everything in the ex parte route rests on the court being satisfied that summons was duly served under Order 5 CPC. If that proof is thin, the application will not travel. **Do Not Treat Mediation as a Delay Tactic:** Agree to it if there is something to settle. But once the other side skips the mediation, do not sit quietly waiting for a second slot. Ask the mediator's report to be placed on record and ask the suit to be listed for hearing. ![Order sheet of an Indore civil suit recording repeated non-appearance of the opposite party is not appearing in court, with dates marked in the margin](/images/civil-suit-order-sheet-opposite-party-not-appearing-in-court.jpg) ## What can you do when the opposite party is not appearing in court? The sequence that works, in the order it usually works: - **Check the service record first.** If summons was never served or was served defectively, the court cannot go ex parte. It will order fresh service, and the clock resets. - **File a memo or application.** List every date the defendant was absent. Annex the order sheet or the certified copy of the relevant orders. - **Pray specifically.** Ask for the suit to be heard ex parte under Order 9 Rule 6 CPC, and ask for costs of the wasted hearings. Vague prayers get vague orders. - **Oppose the next adjournment in writing.** If the other side asks for time, say on record that the request is being made only to delay, and press the proviso to Order 17 Rule 1 CPC for costs. - **Ask for a date, not a direction.** An order that "the matter is adjourned" is not the same as an order that the suit will proceed ex parte on the next date. Get the second one. Expect the court to give the defendant a last chance before it goes ex parte. That is normal and it is not the same as the court ignoring your application. Courts prefer to decide a matter on merits, and they will usually say so once. What you are doing is making sure the record shows that the indulgence was asked for and granted, and that the next absence has a consequence attached. ### What happens after an ex parte order The suit proceeds. Evidence is led. The defendant is not cross-examining your witnesses, and a decree follows on the material before the court. That decree can then be executed like any other. The defendant still has a door. Under Order 9 Rule 13 CPC, an application to set aside an ex parte decree can be filed within thirty days of the decree under Article 123 of the Limitation Act, 1963, or from the date of knowledge where summons was not duly served. The defendant has to show sufficient cause for the absence. In practice this means courts are careful about ex parte orders, and courts are also careful not to reward a defendant who simply stopped showing up. If the defendant appears before the decree is passed, Order 9 Rule 7 CPC lets the court allow them to be heard on sufficient cause shown. So an ex parte order is a stage, not a trophy. It changes the burden on the other side. It does not close the case for good. ## Documents to Keep Ready - A copy of the plaint and the order sheet to date. - The proof of service — postal acknowledgement, tracking record, or the process server's report. - A certified copy of the orders showing non-appearance. - The mediation referral order and the mediator's report, if a reference was made. - Receipts for whatever the plaintiff has already paid in costs and travel, if costs are being claimed. - A short typed chronology — half a page, not an affidavit. The court reads it in one minute and it frames the application. Fees for this kind of application depend on how many hearings the order sheet runs to, and whether a certified copy has to be applied for. Bring what you have. Missing papers can be collected later; a date lost to non-appearance cannot be undone. ## Frequently Asked Questions ### Can the other side reopen the case after an ex parte decree? Yes. Order 9 Rule 13 CPC allows it, within the limitation period, on sufficient cause. The application is judged on whether the absence was explained, not on whether the defendant has a good defence. This is why the proof of service matters so much — a defendant who was never served has a much easier time. ### Does the court always go ex parte on the first absence? Almost never. Most courts give one or two chances, sometimes more where the defendant appeared at an earlier stage and then stopped. The application is worth filing on the first clear pattern, but do not expect the order the same day. ### Does a mediation request stop the suit? No. A reference under Section 89 CPC may cause a short pause while the mediation is attempted. If the other side does not attend, or attends and nothing settles, the mediator reports back and the suit resumes. Treat the mediation as a detour and keep the suit ready to move. ### What if the summons was never served on the other side? Then there is nothing to press for yet. The court will order fresh service, and depending on the address situation it may allow substituted service by publication. On these facts, the honest position is that the delay is not the defendant's conduct — it is the service. That has to be fixed first. ### Can the plaintiff recover costs for the wasted hearings? Costs are discretionary under Section 35 CPC and courts do impose them for adjournments sought without cause. Claim them with figures, not with adjectives. What is actually awarded is often modest, and it rarely covers the real cost of attending court. It is still worth asking — it puts the delay on the record in money. ### Is this the same law in a criminal case? No. This article deals with civil suits under the Code of Civil Procedure, 1908. Where an accused does not appear before a criminal court, the route is different and comes under the criminal procedure law now in force, the BNSS, 2023. Do not carry over the CPC steps to a criminal matter. ### Does any of this apply outside Indore or outside Madhya Pradesh? The CPC is central legislation and applies across India, so the provisions are the same. What varies is courtroom practice — how many chances a particular court gives before going ex parte, and how it handles mediation references. Local practice is learned by appearing, not by reading. ## If This Is Your Case Write to the Chamber with three things: the order sheet or the certified copies of the last few orders, the proof of service, and a two-line note on what the suit is about. Do not send the whole file. The last three hearings usually tell the story. You can reach Advocate Sudhir Rao at the Lawyers' Chamber, Chamber No. 86, Supreme Court of India, New Delhi - 110001, on +91 97295 06771, or by email at me@sudhirrao.com. Criminal defence, cyber crime and economic offences are the areas the Chamber works in. Adv. Jyoti Rao, Bar Council of Delhi D/891/2023, handles family and matrimonial matters. One honest note before you write. If the other side was never properly served, there is very little to argue on the ex parte point and the effort goes into service instead. If the absences are genuine but there is a reasonable explanation sitting somewhere in the record, a court may still grant one more chance. Those are the two situations where the application may not get you far, and you will hear that on the first call rather than after a fee. Use the contact form at [/contact-us](/contact-us) or book a consultation slot at [/book](/book). *This article is general information about Indian law and is not legal advice on your own situation. Every suit turns on its own record and its own court.* *Advocate Sudhir Rao, Supreme Court of India* --- _This is the AI-readable Markdown version of an article published by the Chambers of Sudhir Rao. It is general legal information, not legal advice. Canonical page: https://sudhirrao.com/insights/opposite-party-not-appearing-in-court-what-to-do_