In this case, the party, who was absent and
was proceeded ex parte was the "defendants" and
they had not led any evidence whereas it was the
plaintiff, who was present and had led his evidence.
26. In other words, if the plaintiff had remained
absent and was found to have led evidence, the
Court could have invoked its powers under
Explanation to Order 17 Rule 2 of the Code treating
the plaintiff as "present" for passing appropriate
orders. Such is, however, not the case here.
27. 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 17
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.
28. We are, therefore, of the view that 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 17 Rule 3 (b) read
with Order 17 Rule 2 of the Code for disposal of the
suit by taking recourse to one of the modes directed
in that behalf by Order 9 of the Code or could have
made any other order as it thinks fit.
29. As mentioned above, the Trial Court did
proceed to hear the suit ex parte by taking recourse
to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2
of the Code 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 the Trial Court passed
the preliminary decree. Such decree, in our opinion,
was an "ex parte decree" within the meaning of
Order 9 Rule 6 (a) read with Order 9 Rule 13 of the
Code and, therefore, could be set aside under Order
9 Rule 13 on making out a sufficient ground by the
defendants.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.25822583
OF 2011
G. Ratna Raj Vs Sri Muthukumarasamy Permanent
Fund Ltd.
Abhay Manohar Sapre, J.
Dated:February 01, 2019.
1. Application for substitution is allowed.
2. These appeals are directed against the final
judgment and order dated 11.01.2008 passed by
the High Court of Judicature at Madras in O.S.A.
Nos.299 & 300 of 2006 whereby the Division Bench
of the High Court allowed the appeals filed by
respondent No.1 herein.
3. The controversy involved in these appeals lies
in a narrow compass. However, in order to
appreciate the same, few relevant facts need
mention hereinbelow.
4. The original appellantG
Ratna Raj (since dead
and now represented by his legal representatives)
was the plaintiff whereas respondent No.1 was
defendant No.1 in the civil suit out of which these
appeals arise. Respondent No.2 is impleaded as
party respondent in this Court by order dated
06.02.2014.
5. The original plaintiff (appellant herein)G
Ratna Raj filed a Civil Suit No.131/1999 against
the defendants (Sri Muthukumaraswamy Fund Ltd.Respondent
No.1 herein and Balajee & Ors.) in the
High Court of Madras on its original side
jurisdiction for redemption of mortgage and for
permanent injunction in relation to the mortgaged
property.
6. The defendants on being served entered their
appearance and filed their written statement. The
Trial Court, on the basis of pleadings, framed the
issues. The plaintiff examined himself as PW1.
The
defendants crossexamined
the plaintiff. Thereafter,
the plaintiff closed his case. The case was
accordingly posted for recording defendants’
evidence.
7. At that stage of the proceedings, the
defendants did not appear in the suit and,
therefore, the Court proceeded ex parte against
them. The proceedings in the suit then continued as
ex parte against the defendants. The plaintiff then
got himself reexamined
in the proceedings. He,
however, could not be recrossexamined
by the
defendants because they were already proceeded ex
parte in the proceedings.
8. The Trial Court (Single Judge) by
judgment/decree dated 25.02.2003 passed a
preliminary decree against the defendants in
relation to the suit property. This led to filing of the
two applications (IA No.340/2006 and IA No.
341/2006) by defendant No.1 before the Trial
Court.
9. So far as IA No. 341/2006 is concerned, it was
filed under Order 9 Rule 13 of Code of Civil
Procedure, 1908 (hereinafter referred to as “the
Code”) for setting aside of the preliminary decree
dated 25.02.2003 and so far as IA No.340/2006 is
concerned, it was filed for condonation of delay in
filing the application under Order 9 Rule 13 of the
Code.
10. By order dated 14.03.2006, the Single Judge
dismissed both the applications and held that the
application filed by defendant No.1 under Order 9
Rule 13 of the Code was not maintainable because
the preliminary decree dated 25.02.2003 was not
an "ex parte decree". In other words, he was of the
view that since the preliminary decree dated
25.02.2003 was not an ex parte decree, an
application under Order 9 Rule 13 of the Code
could not be filed for its setting aside.
11. Defendant No.1 felt aggrieved and filed
appeals before the Division Bench of the High
Court. By impugned order, the Division Bench
allowed the appeals and set aside the order of the
Single Judge. The Division Bench held that the
preliminary decree dated 25.02.2003 was an ex
parte decree passed in the civil suit by the Trial
Court (Single Judge) and, therefore, the application
5
filed by defendant No.1 under Order 9 Rule 13 of
the Code was maintainable with a view to find out
as to whether such decree could be set aside under
Order 9 Rule 13 of the Code or not.
12. The Division Bench, therefore, allowed the
application filed by defendant No.1 under Order 9
Rule 13 of the Code subject to their paying a cost of
Rs.10,000/to
the plaintiff. The civil suit was
accordingly restored to its original file for its
disposal on merits in accordance with law. It is
against this order, the plaintiff has felt aggrieved
and filed the present appeals by way of special leave
in this Court.
13. The short question, which arises for
consideration in these appeals, is whether the
Division Bench was justified in setting aside the
preliminary decree dated 25.02.2003 by holding the
same to be an "ex parte decree" for the purpose of
Order 9 Rule 13 of the Code.
14. Heard learned counsel for the parties.
15. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no merit in these appeals.
16. In our opinion, the question involved in these
appeals is required to be decided keeping in view
the provisions of Order 9 Rule 6 (a) and Order 17
Rules 2 and 3 of the Code.
“ Order 9 Rule 6 (1)(a)
6. Procedure when only plaintiff appears(
1)
Where the plaintiff appears and the
defendant does not appear when the suit is
called on for hearing, then(
a) When summons duly served – If it is
proved that the summons was duly served,
the Court may make an order that the suit be
heard ex parte;”
17. Rule 6(1)(a) provides that where the plaintiff
appears and the defendant does not appear when
the suit is called on for hearing, then if the
7
summons is held duly served on the defendant, the
Court may make an order that the suit be heard ex
parte.
18. Order 17 Rules 2 and 3 read as under :
“ Order 17 Rules 2 & 3
2. Procedure if parties fail to appear on day
fixed.—Where, on any day to which the
hearing of the suit is adjourned, the parties
or any of them fail to appear, the court may
proceed to dispose of the suit in one of the
modes directed in that behalf by Order IX or
make such other order as it thinks fit.
Explanation.—Where the evidence or a
substantial portion of the evidence of any
party has already been recorded and such
party fails to appear on any day to which the
hearing of the suit is adjourned, the court
may, in its discretion, proceed with the case
as if such party were present.
3. Court may proceed notwithstanding
either party fails to produce evidence, etc.—
Where any party to a suit to whom time has
been granted fails to produce his evidence, or
to cause the attendance of his witnesses, or
to perform any other act necessary to the
further progress of the suit, for which time
has been allowed, the court may,
notwithstanding such default,—
(a) if the parties are present, proceed to
decide the suit forthwith; or
8
(b) if the parties are, or any of them is,
absent, proceed under Rule 2.”
19. Order 17 Rule 2 of the Code provides that
where, on any day to which the hearing of the suit
is adjourned, the parties or any of them fail to
appear, the Court may proceed to dispose of the suit
in one of the modes directed in that behalf by order
IX or make such other order as it thinks fit.
20. The Explanation appended to Order 17 Rule 2
of the Code provides that where the evidence or a
substantial portion of the evidence of any party has
already been recorded and such party fails to
appear on any day to which the hearing of the suit
is adjourned, the court may, in its discretion,
proceed with the case as if such party was present.
21. Order 17 Rule 3 of the Code, however,
provides that where any party to a suit to whom
time has been granted fails to produce his evidence,
or to cause the attendance of his witnesses, or to
9
perform any other act necessary to the further
progress of the suit, for which time has been
allowed, the Court may, notwithstanding such
default, (a) if the parties are present, proceed to
decide the suit forthwith, or (b) if the parties are, or
any of them is, absent, proceed under Rule 2.
22. The scope of Order 17 Rule 2 and Order 17
Rule 3 of the Code came up for consideration before
this Court in the case of B. Janakiramaiah Chetty
vs. A.K. Parthasarthi & Ors., (2003) 5 SCC 641
wherein Justice Arijit Pasayat speaking for the
Bench held in paras 7 to 10 as under:
“7. In order to determine whether the
remedy under Order 9 is lost or not what is
necessary to be seen is whether in the first
instance the Court had resorted to the
Explanation of Rule 2.
8. The Explanation permits the court in its
discretion to proceed with a case where
substantial portion of evidence of any party
has already been recorded and such party
fails to appear on any day to which the
hearing of the suit is adjourned. As the
10
provision itself shows, discretionary power
given to the court is to be exercised in a
given circumstance. For application of the
provision, the court has to satisfy itself that:
(a) substantial portion of the evidence of any
party has been already recorded; (b) such
party has failed to appear on any day; and (c)
the day is one to which the hearing of the
suit is adjourned. Rule 2 permits the court to
adopt any of the modes provided in Order 9
or to make such order as he thinks fit when
on any day to which the hearing of the suit is
adjourned, the parties or any of them fail to
appear. The Explanation is in the nature of
an exception to the general power given
under the rule, conferring discretion on the
court to act under the specified circumstance
i.e. where evidence or a substantial portion of
evidence of any party has been already
recorded and such party fails to appear on
the date to which hearing of the suit has
been adjourned. If such is the factual
situation, the court may in its discretion
deem as if such party was present. Under
Order 9 Rule 3 the court may make an order
directing that the suit be dismissed when
neither party appears when the suit is called
on for hearing. There are other provisions for
dismissal of the suit contained in Rules 2, 6
and 8. We are primarily concerned with a
situation covered by Rule 6. The crucial
words in the Explanation are “proceed with
the case”. Therefore, on the facts it has to be
seen in each case as to whether the
Explanation was applied by the court or not.
9. In Rule 2, the expression used is “make
such order as it thinks fit”, as an alternative
11
to adopting one of the modes directed in that
behalf by Order 9. Under Order 17 Rule 3(b),
the only course open to the court is to
proceed under Rule 2, when a party is absent.
Explanation thereto gives a discretion to the
court to proceed under Rule 3 even if a party
is absent. But such a course can be adopted
only when the absentee party has already led
evidence or a substantial part thereof. If the
position is not so, the court has no option
but to proceed as provided in Rule 2. Rules 2
and 3 operate in different and distinct sets of
circumstances. Rule 2 applies when an
adjournment has been generally granted and
not for any special purpose. On the other
hand, Rule 3 operates where the adjournment
has been given for one of the purposes
mentioned in the rule. While Rule 2 speaks of
disposal of the suit in one of the specified
modes, Rule 3 empowers the court to decide
the suit forthwith. The basic distinction
between the two rules, however, is that in the
former, any party has failed to appear at the
hearing, while in the latter the party though
present has committed any one or more of
the enumerated defaults. Combined effect of
the Explanation to Rule 2 and Rule 3 is that
a discretion has been conferred on the court.
The power conferred is permissive and not
mandatory. The Explanation is in the nature
of a deeming provision, when under given
circumstances, the absentee party is deemed
to be present.
10. The crucial expression in the Explanation
is “where the evidence or a substantial
portion of the evidence of a party”. There is a
positive purpose in this legislative
12
expression. It obviously means that the
evidence on record is sufficient to
substantiate the absentee party’s stand and
for disposal of the suit. The absentee party is
deemed to be present for this obvious
purpose. The court while acting under the
Explanation may proceed with the case if
that prima facie is the position. The court
has to be satisfied on the facts of each case
about this requisite aspect. It would be also
imperative for the court to record its
satisfaction in that perspective. It cannot be
said that the requirement of substantial
portion of the evidence or the evidence
having been led for applying the Explanation
is without any purpose. If the evidence on
record is sufficient for disposal of the suit,
there is no need for adjourning the suit or
deferring the decision.”
23. Now when we examine the facts of the case at
hand keeping in view the law laid down in the case
of B Janakiramaiah Chetty (supra), we find that
the plaintiff’s evidence was recorded and his case
was also closed. It is not in dispute that 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
13
defendants’ absence on the said date. In other
words, it was a case where the defendants did not
lead any evidence.
24. In such a situation arising in the case, in our
view, the case at hand would not fall under
Explanation to Order 17 Rule 2 of the Code 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.
25. In this case, the party, who was absent and
was proceeded ex parte was the "defendants" and
they had not led any evidence whereas it was the
plaintiff, who was present and had led his evidence.
26. In other words, if the plaintiff had remained
absent and was found to have led evidence, the
Court could have invoked its powers under
Explanation to Order 17 Rule 2 of the Code treating
the plaintiff as "present" for passing appropriate
orders. Such is, however, not the case here.
27. 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 17
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.
28. We are, therefore, of the view that 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 17 Rule 3 (b) read
with Order 17 Rule 2 of the Code for disposal of the
suit by taking recourse to one of the modes directed
in that behalf by Order 9 of the Code or could have
made any other order as it thinks fit.
29. As mentioned above, the Trial Court did
proceed to hear the suit ex parte by taking recourse
to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2
of the Code 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 the Trial Court passed
the preliminary decree. Such decree, in our opinion,
was an "ex parte decree" within the meaning of
Order 9 Rule 6 (a) read with Order 9 Rule 13 of the
Code and, therefore, could be set aside under Order
9 Rule 13 on making out a sufficient ground by the
defendants.
30. In view of the foregoing discussion, we are of
the view that the Division Bench was justified in
allowing the applications filed by defendant No.1
under Order 9 Rule 13 of the Code and, in
consequence, was justified in setting aside the
preliminary decree dated 25.02.2003 passed in
O.S. No.131/1999 treating the said decree as "ex
parte decree".
31. So far as the finding on the question of
sufficient ground for setting aside of the ex parte
decree is concerned, suffice it to say, it being a pure
question of fact, the same does not call for any
interference by this Court. A finding on such
question is binding on this Court. Moreover, we find
that the Division Bench imposed a cost of
Rs.10,000/on
defendant No.1 payable to the
plaintiff as condition for setting aside the ex parte
decree. Defendant No.1, therefore, must pay the
cost to the plaintiff.
32. As a result of the foregoing discussion, we find
no merit in these appeals, which are accordingly
dismissed.
33. The Trial Court (Single Judge) is now directed
to decide the Original Suit No. 131/1999 on merits
in accordance with law preferably within a period of
one year as an outer limit. Since the original
plaintiff has died and his legal representatives are
already brought on record in these appeals, the
Trial Court will permit the plaintiff to amend the
cause title in the plaint and bring on record the
legal representatives(appellants herein) to enable
them to prosecute the suit on merits in accordance
with law.
………...................................J.
[ABHAY MANOHAR SAPRE]
....……..................................J.
[DINESH MAHESHWARI]
New Delhi;
February 01, 2019.
was proceeded ex parte was the "defendants" and
they had not led any evidence whereas it was the
plaintiff, who was present and had led his evidence.
26. In other words, if the plaintiff had remained
absent and was found to have led evidence, the
Court could have invoked its powers under
Explanation to Order 17 Rule 2 of the Code treating
the plaintiff as "present" for passing appropriate
orders. Such is, however, not the case here.
27. 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 17
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.
28. We are, therefore, of the view that 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 17 Rule 3 (b) read
with Order 17 Rule 2 of the Code for disposal of the
suit by taking recourse to one of the modes directed
in that behalf by Order 9 of the Code or could have
made any other order as it thinks fit.
29. As mentioned above, the Trial Court did
proceed to hear the suit ex parte by taking recourse
to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2
of the Code 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 the Trial Court passed
the preliminary decree. Such decree, in our opinion,
was an "ex parte decree" within the meaning of
Order 9 Rule 6 (a) read with Order 9 Rule 13 of the
Code and, therefore, could be set aside under Order
9 Rule 13 on making out a sufficient ground by the
defendants.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.25822583
OF 2011
G. Ratna Raj Vs Sri Muthukumarasamy Permanent
Fund Ltd.
Abhay Manohar Sapre, J.
Dated:February 01, 2019.
1. Application for substitution is allowed.
2. These appeals are directed against the final
judgment and order dated 11.01.2008 passed by
the High Court of Judicature at Madras in O.S.A.
Nos.299 & 300 of 2006 whereby the Division Bench
of the High Court allowed the appeals filed by
respondent No.1 herein.
3. The controversy involved in these appeals lies
in a narrow compass. However, in order to
appreciate the same, few relevant facts need
mention hereinbelow.
4. The original appellantG
Ratna Raj (since dead
and now represented by his legal representatives)
was the plaintiff whereas respondent No.1 was
defendant No.1 in the civil suit out of which these
appeals arise. Respondent No.2 is impleaded as
party respondent in this Court by order dated
06.02.2014.
5. The original plaintiff (appellant herein)G
Ratna Raj filed a Civil Suit No.131/1999 against
the defendants (Sri Muthukumaraswamy Fund Ltd.Respondent
No.1 herein and Balajee & Ors.) in the
High Court of Madras on its original side
jurisdiction for redemption of mortgage and for
permanent injunction in relation to the mortgaged
property.
6. The defendants on being served entered their
appearance and filed their written statement. The
Trial Court, on the basis of pleadings, framed the
issues. The plaintiff examined himself as PW1.
The
defendants crossexamined
the plaintiff. Thereafter,
the plaintiff closed his case. The case was
accordingly posted for recording defendants’
evidence.
7. At that stage of the proceedings, the
defendants did not appear in the suit and,
therefore, the Court proceeded ex parte against
them. The proceedings in the suit then continued as
ex parte against the defendants. The plaintiff then
got himself reexamined
in the proceedings. He,
however, could not be recrossexamined
by the
defendants because they were already proceeded ex
parte in the proceedings.
8. The Trial Court (Single Judge) by
judgment/decree dated 25.02.2003 passed a
preliminary decree against the defendants in
relation to the suit property. This led to filing of the
two applications (IA No.340/2006 and IA No.
341/2006) by defendant No.1 before the Trial
Court.
9. So far as IA No. 341/2006 is concerned, it was
filed under Order 9 Rule 13 of Code of Civil
Procedure, 1908 (hereinafter referred to as “the
Code”) for setting aside of the preliminary decree
dated 25.02.2003 and so far as IA No.340/2006 is
concerned, it was filed for condonation of delay in
filing the application under Order 9 Rule 13 of the
Code.
10. By order dated 14.03.2006, the Single Judge
dismissed both the applications and held that the
application filed by defendant No.1 under Order 9
Rule 13 of the Code was not maintainable because
the preliminary decree dated 25.02.2003 was not
an "ex parte decree". In other words, he was of the
view that since the preliminary decree dated
25.02.2003 was not an ex parte decree, an
application under Order 9 Rule 13 of the Code
could not be filed for its setting aside.
11. Defendant No.1 felt aggrieved and filed
appeals before the Division Bench of the High
Court. By impugned order, the Division Bench
allowed the appeals and set aside the order of the
Single Judge. The Division Bench held that the
preliminary decree dated 25.02.2003 was an ex
parte decree passed in the civil suit by the Trial
Court (Single Judge) and, therefore, the application
5
filed by defendant No.1 under Order 9 Rule 13 of
the Code was maintainable with a view to find out
as to whether such decree could be set aside under
Order 9 Rule 13 of the Code or not.
12. The Division Bench, therefore, allowed the
application filed by defendant No.1 under Order 9
Rule 13 of the Code subject to their paying a cost of
Rs.10,000/to
the plaintiff. The civil suit was
accordingly restored to its original file for its
disposal on merits in accordance with law. It is
against this order, the plaintiff has felt aggrieved
and filed the present appeals by way of special leave
in this Court.
13. The short question, which arises for
consideration in these appeals, is whether the
Division Bench was justified in setting aside the
preliminary decree dated 25.02.2003 by holding the
same to be an "ex parte decree" for the purpose of
Order 9 Rule 13 of the Code.
14. Heard learned counsel for the parties.
15. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no merit in these appeals.
16. In our opinion, the question involved in these
appeals is required to be decided keeping in view
the provisions of Order 9 Rule 6 (a) and Order 17
Rules 2 and 3 of the Code.
“ Order 9 Rule 6 (1)(a)
6. Procedure when only plaintiff appears(
1)
Where the plaintiff appears and the
defendant does not appear when the suit is
called on for hearing, then(
a) When summons duly served – If it is
proved that the summons was duly served,
the Court may make an order that the suit be
heard ex parte;”
17. Rule 6(1)(a) provides that where the plaintiff
appears and the defendant does not appear when
the suit is called on for hearing, then if the
7
summons is held duly served on the defendant, the
Court may make an order that the suit be heard ex
parte.
18. Order 17 Rules 2 and 3 read as under :
“ Order 17 Rules 2 & 3
2. Procedure if parties fail to appear on day
fixed.—Where, on any day to which the
hearing of the suit is adjourned, the parties
or any of them fail to appear, the court may
proceed to dispose of the suit in one of the
modes directed in that behalf by Order IX or
make such other order as it thinks fit.
Explanation.—Where the evidence or a
substantial portion of the evidence of any
party has already been recorded and such
party fails to appear on any day to which the
hearing of the suit is adjourned, the court
may, in its discretion, proceed with the case
as if such party were present.
3. Court may proceed notwithstanding
either party fails to produce evidence, etc.—
Where any party to a suit to whom time has
been granted fails to produce his evidence, or
to cause the attendance of his witnesses, or
to perform any other act necessary to the
further progress of the suit, for which time
has been allowed, the court may,
notwithstanding such default,—
(a) if the parties are present, proceed to
decide the suit forthwith; or
8
(b) if the parties are, or any of them is,
absent, proceed under Rule 2.”
19. Order 17 Rule 2 of the Code provides that
where, on any day to which the hearing of the suit
is adjourned, the parties or any of them fail to
appear, the Court may proceed to dispose of the suit
in one of the modes directed in that behalf by order
IX or make such other order as it thinks fit.
20. The Explanation appended to Order 17 Rule 2
of the Code provides that where the evidence or a
substantial portion of the evidence of any party has
already been recorded and such party fails to
appear on any day to which the hearing of the suit
is adjourned, the court may, in its discretion,
proceed with the case as if such party was present.
21. Order 17 Rule 3 of the Code, however,
provides that where any party to a suit to whom
time has been granted fails to produce his evidence,
or to cause the attendance of his witnesses, or to
9
perform any other act necessary to the further
progress of the suit, for which time has been
allowed, the Court may, notwithstanding such
default, (a) if the parties are present, proceed to
decide the suit forthwith, or (b) if the parties are, or
any of them is, absent, proceed under Rule 2.
22. The scope of Order 17 Rule 2 and Order 17
Rule 3 of the Code came up for consideration before
this Court in the case of B. Janakiramaiah Chetty
vs. A.K. Parthasarthi & Ors., (2003) 5 SCC 641
wherein Justice Arijit Pasayat speaking for the
Bench held in paras 7 to 10 as under:
“7. In order to determine whether the
remedy under Order 9 is lost or not what is
necessary to be seen is whether in the first
instance the Court had resorted to the
Explanation of Rule 2.
8. The Explanation permits the court in its
discretion to proceed with a case where
substantial portion of evidence of any party
has already been recorded and such party
fails to appear on any day to which the
hearing of the suit is adjourned. As the
10
provision itself shows, discretionary power
given to the court is to be exercised in a
given circumstance. For application of the
provision, the court has to satisfy itself that:
(a) substantial portion of the evidence of any
party has been already recorded; (b) such
party has failed to appear on any day; and (c)
the day is one to which the hearing of the
suit is adjourned. Rule 2 permits the court to
adopt any of the modes provided in Order 9
or to make such order as he thinks fit when
on any day to which the hearing of the suit is
adjourned, the parties or any of them fail to
appear. The Explanation is in the nature of
an exception to the general power given
under the rule, conferring discretion on the
court to act under the specified circumstance
i.e. where evidence or a substantial portion of
evidence of any party has been already
recorded and such party fails to appear on
the date to which hearing of the suit has
been adjourned. If such is the factual
situation, the court may in its discretion
deem as if such party was present. Under
Order 9 Rule 3 the court may make an order
directing that the suit be dismissed when
neither party appears when the suit is called
on for hearing. There are other provisions for
dismissal of the suit contained in Rules 2, 6
and 8. We are primarily concerned with a
situation covered by Rule 6. The crucial
words in the Explanation are “proceed with
the case”. Therefore, on the facts it has to be
seen in each case as to whether the
Explanation was applied by the court or not.
9. In Rule 2, the expression used is “make
such order as it thinks fit”, as an alternative
11
to adopting one of the modes directed in that
behalf by Order 9. Under Order 17 Rule 3(b),
the only course open to the court is to
proceed under Rule 2, when a party is absent.
Explanation thereto gives a discretion to the
court to proceed under Rule 3 even if a party
is absent. But such a course can be adopted
only when the absentee party has already led
evidence or a substantial part thereof. If the
position is not so, the court has no option
but to proceed as provided in Rule 2. Rules 2
and 3 operate in different and distinct sets of
circumstances. Rule 2 applies when an
adjournment has been generally granted and
not for any special purpose. On the other
hand, Rule 3 operates where the adjournment
has been given for one of the purposes
mentioned in the rule. While Rule 2 speaks of
disposal of the suit in one of the specified
modes, Rule 3 empowers the court to decide
the suit forthwith. The basic distinction
between the two rules, however, is that in the
former, any party has failed to appear at the
hearing, while in the latter the party though
present has committed any one or more of
the enumerated defaults. Combined effect of
the Explanation to Rule 2 and Rule 3 is that
a discretion has been conferred on the court.
The power conferred is permissive and not
mandatory. The Explanation is in the nature
of a deeming provision, when under given
circumstances, the absentee party is deemed
to be present.
10. The crucial expression in the Explanation
is “where the evidence or a substantial
portion of the evidence of a party”. There is a
positive purpose in this legislative
12
expression. It obviously means that the
evidence on record is sufficient to
substantiate the absentee party’s stand and
for disposal of the suit. The absentee party is
deemed to be present for this obvious
purpose. The court while acting under the
Explanation may proceed with the case if
that prima facie is the position. The court
has to be satisfied on the facts of each case
about this requisite aspect. It would be also
imperative for the court to record its
satisfaction in that perspective. It cannot be
said that the requirement of substantial
portion of the evidence or the evidence
having been led for applying the Explanation
is without any purpose. If the evidence on
record is sufficient for disposal of the suit,
there is no need for adjourning the suit or
deferring the decision.”
23. Now when we examine the facts of the case at
hand keeping in view the law laid down in the case
of B Janakiramaiah Chetty (supra), we find that
the plaintiff’s evidence was recorded and his case
was also closed. It is not in dispute that 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
13
defendants’ absence on the said date. In other
words, it was a case where the defendants did not
lead any evidence.
24. In such a situation arising in the case, in our
view, the case at hand would not fall under
Explanation to Order 17 Rule 2 of the Code 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.
25. In this case, the party, who was absent and
was proceeded ex parte was the "defendants" and
they had not led any evidence whereas it was the
plaintiff, who was present and had led his evidence.
26. In other words, if the plaintiff had remained
absent and was found to have led evidence, the
Court could have invoked its powers under
Explanation to Order 17 Rule 2 of the Code treating
the plaintiff as "present" for passing appropriate
orders. Such is, however, not the case here.
27. 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 17
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.
28. We are, therefore, of the view that 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 17 Rule 3 (b) read
with Order 17 Rule 2 of the Code for disposal of the
suit by taking recourse to one of the modes directed
in that behalf by Order 9 of the Code or could have
made any other order as it thinks fit.
29. As mentioned above, the Trial Court did
proceed to hear the suit ex parte by taking recourse
to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2
of the Code 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 the Trial Court passed
the preliminary decree. Such decree, in our opinion,
was an "ex parte decree" within the meaning of
Order 9 Rule 6 (a) read with Order 9 Rule 13 of the
Code and, therefore, could be set aside under Order
9 Rule 13 on making out a sufficient ground by the
defendants.
30. In view of the foregoing discussion, we are of
the view that the Division Bench was justified in
allowing the applications filed by defendant No.1
under Order 9 Rule 13 of the Code and, in
consequence, was justified in setting aside the
preliminary decree dated 25.02.2003 passed in
O.S. No.131/1999 treating the said decree as "ex
parte decree".
31. So far as the finding on the question of
sufficient ground for setting aside of the ex parte
decree is concerned, suffice it to say, it being a pure
question of fact, the same does not call for any
interference by this Court. A finding on such
question is binding on this Court. Moreover, we find
that the Division Bench imposed a cost of
Rs.10,000/on
defendant No.1 payable to the
plaintiff as condition for setting aside the ex parte
decree. Defendant No.1, therefore, must pay the
cost to the plaintiff.
32. As a result of the foregoing discussion, we find
no merit in these appeals, which are accordingly
dismissed.
33. The Trial Court (Single Judge) is now directed
to decide the Original Suit No. 131/1999 on merits
in accordance with law preferably within a period of
one year as an outer limit. Since the original
plaintiff has died and his legal representatives are
already brought on record in these appeals, the
Trial Court will permit the plaintiff to amend the
cause title in the plaint and bring on record the
legal representatives(appellants herein) to enable
them to prosecute the suit on merits in accordance
with law.
………...................................J.
[ABHAY MANOHAR SAPRE]
....……..................................J.
[DINESH MAHESHWARI]
New Delhi;
February 01, 2019.
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