Code of Civil Procedure, 1908 – Or.XVII, r.2, Explanation – Applicability of – In order to attract Explanation to Or.XVII, r.2, the party which has led evidence and has led substantial part of the evidence if fails to appear on any day to which the hearing of the case is adjourned, the Court may treat “such party” as “present” on that day and is accordingly empowered to proceed in the suit – In the instant case, the defendants were proceeded ex parte – It was defendant who did not lead the evidence and therefore, Explanation to Or.XVII, r.2 would not apply – Therefore, since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Or.XVII, r.3 (b) r/w Or.XVII, r.2 for disposal of the suit by taking recourse to one of the modes directed in that behalf by Or.IX of the Code – Trial court (Single Judge) had proceeded to hear the suit ex parte by taking recourse to Or.IX, r.6 (a) in terms of Or.XVII, r.2 because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and, accordingly, trial court passed the preliminary decree – Such decree was an “ex parte decree” within the meaning of Or.IX, r.6 (a) r/w Or.IX, r.13 of the Code and, therefore, could only be set aside under Or.IX, r.13 on making out a sufficient ground by the defendants – Division Bench of High Court was justified in allowing the applications filed by defendant no.1 under Or.IX, r.13 and in consequence was justified in setting aside the preliminary decree treating the said decree as ‘ex parte decree’ – Interference with the said order is not called for – Trial court is directed to decide the suit on merits in accordance with law – Ex parte decree – Party, appearance of.
Dismissing the appeals, the Court
HELD: In the instant case, the plaintiff’s evidence was recorded and his case was also closed. The defendants were placed ex parte on the date when the case was fixed for recording defendants’ evidence but the same was not recorded due to the defendants’ absence on the said date. In such a situation arising in the case, the case at hand would not fall under Explanation to Order XVII Rule 2 because in order to attract the Explanation, “such party” which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treat “such party” as “present” on that day and is accordingly empowered to proceed in the suit. If the plaintiff had remained absent and was found to have led evidence, the Court could have invoked its powers under Explanation to Order XVII Rule 2 treating the plaintiff as “present” for passing appropriate orders. Such is, however, not the case here. Similarly, in converse situation, if the defendants had remained absent (as has happened in this case) on that date and if it would have noticed that they had adduced the evidence either fully or substantially prior to the date on which they were proceeded ex parte, the Court could have invoked its powers under Explanation to Order XVII Rule 2 of the Code treating the defendants as “present” on that day for passing appropriate orders in the suit. Such is, however, again not the case here. Since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Order XVII Rule 3 (b) read with Order XVII Rule 2 for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order IX or could have made any other order as it thinks fit. The Trial Court (Single Judge) is directed to decide the Original Suit on merits in accordance with law. [Paras 23-24, 26-28, 33][853-A-C, D-F; 854-F]
B. Janakiramaiah Chetty v. A.K. Parthasarthi & Ors. (2003) 5 SCC 641 : [2003] 3 SCR 369 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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