Holding

The Explanation to Order XVII Rule 2 confers a discretionary, permissive power to proceed as if an absent party were present only when a substantial portion of that party’s evidence has already been recorded; otherwise the case is ex parte and Order IX Rule 13 applies.

Summary

The appellant filed a suit for damages alleging police torture, and the respondents failed to appear at the final hearing where a decree was passed ex parte. The respondents sought relief under Order IX Rule 13, arguing that the decree was an ex parte adjudication, while the appellant contended that the Explanation to Order XVII Rule 2 applied, deeming the absent party present because a substantial portion of their evidence had already been recorded. The Supreme Court examined the scope of the Explanation, holding that it permits the court to proceed as if the party were present only when a substantial portion of that party’s evidence is on record, and that this discretion is permissive, not mandatory. The Court clarified the distinction between Order XVII Rule 2 (with its Explanation) and Order IX Rule 13, noting that when the Explanation does not apply, the case proceeds ex parte and the decree stands. Consequently, the Court found no infirmity in the lower court’s judgment and dismissed the appeals.

Issues considered

What is the scope and ambit of the Explanation to Order XVII Rule 2 of the CPC?
Does the Explanation to Order XVII Rule 2 preclude the application of Order IX Rule 13 when a substantial portion of the absent party's evidence is already recorded?
Is a decree passed in the absence of a party valid if the Explanation to Rule 2 is not satisfied?

Legislation cited

Code of Civil Procedure, 1908s. Order IX Rule 13, s. Order IX Rule 3, s. Order XVII Rule 2, s. Order XVII Rule 3, s. Rule 6, s. Rule 8

Subjects

Civil Procedure CodeOrder XVII Rule 2Explanation to Rule 2ex parte proceedingssubstantial portion of evidencecourt discretiondeeming provisionOrder IX Rule 13appeal dismissal

Judgment

B. JANAKIRAMAIAH CHETTY A
v.
A.K. PARTHASARTHI AND ORS.

APRIL 3, 2003

[SHIVARAJ V. PATIL AND ARIJIT PASA'YAT, JJ.] B

Civil Procedure Code, 1908:

Order JX and Order XVJJ, Rule 2 and Explanation thereunder:
c
Suit-Hearing of-Absence of Party/Parties-Effect of-Held, Court has
been conferred with discretionary power which is permissive and not mandatory
to be exercised in the circumstances mentioned therein-When evidence/
substantial portion of evidence has been recorded earlier, the Court may
dispose of the matter as if party was present/deemed to be present. D
Order XVJJ Rules 2 and 3:

Suit-Hearing of-Absence of Party/parties- Applicability of-
Distinction between-Rule 2 and Rule 3-Discussed.

Words & Phrases:
E

'Where the evidence or substantial portion of the evidence of a party'-
Meaning of in the context of Explanation to Rule 2 Order XVJJ C. P. C., 1908.

The main issue which arose in the instant case pertains to the scope F
and ambit of Explanation to Order XVII Rule 2 of the Civil Procedure
Code, 1908.

It was contended for the appellant that the High Court did not take
into consideration the situational distinction between Order XVII Rule 2
and the Explanation to Rule 2; and that in view of the explanation the G
case could not have been proceeded cx-parte.

Dismissing the appeals, the Court

- HELD: I. I. Explanation to Rule 2 Order XVII C. P. C. permits the

369
H
370 SUPREME COURT REPORTS [2003] 3 S.C.R.

A 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 provision itself shows, discretionary power given to the Court has to
be exercised in given circumstances. For application of the provision, the
B 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 IX or to make such order as it thinks fit when on any day to
which the hearing of the suit is adjourned, the parties or any of them fail
C 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 specified circumstance. The crucial words in the Explanation are
'proceed with the case'. Therefore, an the facts it has to be seen in each
case as to whether the Explanation was applied by the Court or not.
13-73-F-G; 374-BI
D
1.2. Under Order IX Ruic 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. (374-AI

1.3. Under Order XVII Rule 3(b), the only course open to the Court
E is to proceed under Ruic 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
F 2 and 3 operate in different and distinct sets of circumstances. Combined
effect of Explanation to Rule 2 and Rule 3 is that a discretion 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. 1374-C-D-E-FI

G 1.4. The crucial expression in the Explanation is "where the evidence
or a substantial portion of the evidence of a party". 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
H Explanation may proceed with the case if that prima facie is the position.
--.
B.J. Cl-IETTY v. A.K. PARTHASARTl-11 (ARIJ!T PASA YAT, J.] 371
The Court has to be satisfied on the facts of each case about this requisite A
aspect. It would also be 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 or 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 B
the decision. This clearly has imprints of an ex parte adjudication and not
of a decision on merits. There is not even any indication as to what
evidence was evaluated and/or whether the merits were tested. However,
in the absence of any indication as regards merits of the case, preferring
an appeal will be really inconsequential. It is more so when no definite
ground of appeal can be pressed into service, except making generalized C
challenges. It certainly cannot be the legislative intent.
1374-G-H; 375-A; 376-Af

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2690-2691 of
2003.
D
From the Judgment and Order dated 8.11.200 I of the Andhra Pradesh
High Court in C.R.P. No. 3277 and 3472 of 2001.

L. Nageshwara Rao, G. Ramakrishna Prasad, K.C. Sudarshan, Jayanth
Muth Raj and Md. Wasay Khan, for the Appellant.
E
S. Nanda Kumar, Sivaraj for Rakesh K. Sharma, for the Respondents.

The Judgment of the Court -was delivered by

ARIJIT PASAYAT, J. Leave granted.
F
The scope and ambit of Explanation to Order XVII Rule 2 of the Code
of Civil Procedure, 1908 (in short 'the Code') falls for determination in these
appeals.

As the issues are primarily legal, detailed reference to the factual aspects G
would be unnecessary. Factual background in a nutshell is as follows:

Alleging that the appellant, a leading businessman, was subject to torture
by various police officials (the respondent herein), a writ petition was filed
before the Andhra Pradesh High Court by appellant's son who alleged that
he had no knowledge about the whereabouts of his father; who was tortured H
372 SUPREME COURT REPORTS [2003] 3 S.C.R.

A by police officials. The writ petition was disposed of by the High Court
granting Iiberty to the petitioner to take such legal steps against the respondents
for his alleged wrongful confinement. The suit O.S. No. 117/1992 was filed
before the subordinate Judge, Chittoor claiming damages, on 15.4.1992.
Written statement was filed on 12.4.1993. On 8.7.1997 the evidence on the
B petitioner's side was closed. On 15.11.1998 the evidence on behalf of the
respondents was also closed and the matter was posted for arguments. In the
meantime, applications were filed by respondents for adducing additional
evidence. Those were posted for filing counter affidavits and hearing. On
23. 6.1999 the original suit was called for final hearing. As the respondents

C
were not represented, a decree was passed. Applications were filed under
Order IX Rule 13 of the Code by the respondents for setting aside the decree
and order dated 23.6.1999. Their stand was that they were engaged in official
duty and were unable to attend the Court. Petitioner took the stand about
-
non-applicability of Order IX Rule 13 of the Code to the facts of the case.
On the ground that the matter was decided on merits and not ex parte. The
stand was rejected and the application were allowed. Aggrieved by the order
D passed by the Senior Civil Judge (as the Subordinate Judge is now presently
described), two revision petitions were filed before the Andhra Pradesh High
Court and by the impugned order it dismissed the two civil revision petitions.

In support of the appeals, learned counsel for the appellant submitted
E that the situational distinction between Order XVII Rule 2 and the Explanation
to Rule 2 has not been kept in view by the high Court. It was highlighted that
the Explanation applies to a case where the Court proceeds to deal with a
matter as if the parties are present. Order IX Rule 13 is applicable to a case
where it has proceeded ex-parte. If the Explanation is applied, then, the case
cannot be treated to be one which has proceeded ex-parte and, therefore,
F application of Order IX Rule 13 is ruled out.

Per contra, learned counsel for the respondents has submitted that the
Subordinate Judge and the High Court have rightly taken note of the fact that
the matter was proceeded ex-parte in the absence of the respondents and,
G therefore, order IX Rule 13 is clearly applicable.

Since the controversy revolves round Order XVII Rule 2 including its
Explanation, the same is quoted below, along with Rule 3 thereof, since it has
re.levance:

"Order XVII Rule 2: Procedure ifparties fail to appear on day fixed- •
H
B.J. CHETTY v. A.K. PARTllASARTHI [ARl.llT PASAYAT, J.] 373
Where, on any day to which the hearing of the suit is adjourned, the A
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 order as it thinks fit.

Explanation: Where the evidence of a substantial portion of the
evidence of any party has already been recorded and such party fails B
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.

Rule 3: Court may proceed notwithstanding either party fails to produce
evidence etc. Where any party to a suit to whom time has been C
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) ifthe parties are present, proceed to decide the suit forthwith: or
D

(b) if the parties are, or any of them is, absent, proceed under Rule
2."

In order to determine whether the remedy under Order IX is lost or not
what is necessary to be seen is whether in the first instance the Court had E
resorted to the Explanation of Rule. 2.

The Explanation permit, 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 F
the suit is adjourned. As the provision itself shows, discretionary power
given to the Court to be exercised in a given circumstances. 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 G
in Order IX 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 H
374 SUPREME COURT REPORTS (2003] 3 S.C.R.

. A 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 IX 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,
B 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.

C In Rule 2, the expression used is "make such order as it deems fit", as
an alternative to adopting one of the modes directed in that behalf by Order
IX. Under Order XVII Rule 3(b), 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
D 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
E 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
F 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.

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
G this legislative 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
H each case about this requisite aspect. It would be also imperative for the
B.J. CHETTY v. A.K. PARTHASARTHJ [ARIJIT PASA YAT, J.] 375

Court to record its satisfaction in that perspective. It cannot be said that the A
requirement of substantial portion of the evidence or the evidence having
been led or 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.

In an instant case, the judgment of the Court was in the following B
terms:

"Suit for recovery of a sum of Rs. I 0,00,000 being the damages
caused on account of arrest and detention illegally by the defendants
on 18.4.1989 and for costs. C
After filing of written statement by the defendant the following issues
were settled for trial:

I. Whether on 18.4.1989 at 10.00 a.m. the 1st defendant and his
staff whisked away the plaintiff in a high handed manner, while D
he was in his shop?

2. Whether the plaintiff was tortured by !st and 2nd defendants?

3. Whether the learned Advocate Commissioner Chittoor-found the
plaintiff in Bhagayam P.S. ? E
4. Whether 1st defendant denied the quality of changes and courts
of A.P.?

5. Whether the plaintiff is entitled for damages as prayed for?

6. To what relief? F

Additional issues reframed on 1.12.1977:

I. Whether this Court has no jurisdiction to try this suit?

2. To what relief? G
D. I to D. 3 called absent. No representation for the defendants. Suit
is decreed with costs, together with interest at 6% per annum from
the date of suit till realization. "

This clearly has imprints of an ex-parte adjudication and not of a H
376 SUPREME COURT REPORTS [2003) 3 S.C.R.

A decision on merits. There is not even any indication as to what evidence
was evaluated and/or whether the merits were tested.

The matter can be looked at from another angle. In the absence of any
indication as regards merits of the case, preferring an appeal will be really
inconsequential. It is more so when no definite ground of appeal can be
B pressed into service, except making generalized challenges. It certainly cannot
be the legislative intent.

We find no infirmity in the impugned judgment to warrant interference.
Tl)e appeals are dismissed but with no order as to costs.
c S.K.S. Appeals dismissed.