Code of Civil Procedure, 1908 – Explanation to Or. XVII, r.2 and Or. IX, r.13:
Held : At the stage when plaintiff’s evidence was being led, counsel for defendants withdrew his vakalatnama – Trial Court directed to proceed u/Or. XVII, r.2 CPC against defendants and decreed suit ex parte – Trial Court allowed application of defendants u/Or. IX, r.13 – However, High Court held application u/Or. IX Rule 13 CPC would not be maintainable and applied explanation u/Or.XVII, r.2 CPC – The explanation to Or. XVII, r.2 in the instant case could have been invoked only if the plaintiff, after adducing his evidence or substantial evidence, failed to appear, the Court could have recorded his presence while disposing of the suit – But, once the defendant had not led any evidence at all, the explanation could not be invoked as against the defendant/appellant – The High Court committed an error in applying the explanation to Or. XVII, r. 2 CPC and based upon it holding that an application u/Or. IX, r.13 CPC would not be maintainable as the presence of the defendant would be deemed to be recorded at the time of disposal of the suit – Thus, the impugned order of the High Court is set aside – Trial Court to proceed and decide the Special Civil Suit on its own merits, after giving due opportunities to the parties. [Paras 4, 5, 6, 7 and 20] Code of Civil Procedure, 1908 – Or. XVII, r.2 – At the stage when plaintiff’s evidence was being led,counsel for defendants withdrew his vakalatnama – Trial Court directed to proceed u/Or. XVII, r.2 CPC against defendants and decreed suit ex parte – Propriety of: Held : As a matter of fact, once the counsel had withdrawn his Vakalatnama, in normal course, the Trial Court ought to have issued notice to the defendants to engage another counsel, which it did not do and proceeded ex parte – The Trial Court committed an error in doing so. [Para 21] Code of Civil Procedure, 1908 – Or. XVII, r.2 – Discernible under: Held : What is discernible is that u/Or. XVII, r.2, the Court would proceed to pass orders with respect to any of the parties being absent or both the parties being absent – Whereas the explanation is confined to record the presence of that party and that party alone, which has led evidence or substantial evidence and has thereafter failed to appear. [Para 19] LIST OF CITATIONS AND OTHER REFERENCES
Maharashtra State Electricity Board vs. Miraj Electric Supply Co. Ltd. Ors. Civil Writ Petition No. 1488 of 2015 – referred to. OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
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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