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Report No. 27

Order XVII, rule 2 and disposal on merits

1. Order XVII, rule 2 says that if 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. Thus, the court may

(i) act under Order IX, (but it is not bound to do so, as has been stressed by the Supreme Court)1;

(ii) grant further adjournment; or

(iii) make such other order as it thinks fit.

2. The words "such other order" have been interpreted in a number of decisions, but there still remains some uncertainty about their exact scope. Ordinarily, the court would not, in the absence of a party, proceed to dispose of the suit "on merits" under this rule. But there are observations to the effect that the words "such other order" do not rule out disposal on the merits where sufficient material is available2-3-4. On the other hand, there are rulings to the contrary5.

3. The matter has some practical importance as regards the remedy available to the plaintiff or defendant affected by the actual order passed under Order XVII, rule 2.

4. There is a decision in an earlier Madras case6 to the effect that when a plaintiff has closed his case and there is evidence which, if unrebutted, would prove his case, it could hardly be deemed to be a judicial exercise of discretion to dismiss the suit for default; the defence evidence should, it was held, have been recorded in plaintiff's absence, and the case disposed of on the merits. This case does not seem to have been expressly over-ruled in any of the later Madras cases. It follows a Bombay decision7.

This decision was, however, referred to in the Full Bench case of Pichamma8 and would seem to have been impliedly over-ruled by that case, as the judgment of Kumaraswami Sastri J. which was concurred in by Sadasiva Aiyar J. inPichamma's case, holds that if the matter is treated as falling outside Order IX, there would be hardship to the parties because the remedies under Order IX would not be available.

(The actual facts in Pichamma's casewere of the defendant's absence and of a judgment being delivered in favour of the plaintiff; and the actual decision was that rules 2 and 3 are mutually exclusive and independent, so that if the party fails to appear, rule 2 applies and the stringent provisions of rule 3 should not apply.) Rule 3, it was held, should be treated as applying only to cases where the parties are present and have not satisfied the court as to the existence of any adequate reasons for having not done what they had directed to do. Since the consideration of hardship to the parties was stressed there, it would appear that a decision on the "merits" so as to exclude the application of Order IX at least in cases where the absence was of the defendant, is ruled out by Pichamma's case.

If the default consists in non-appearance, it is rule 2 dealing with such a case specifically that in terms applies; this is the view reinforced by later decisions9-10. That the suit should not necessarily be dismissed for the plaintiff's absence and that the court has got a discretion to grant an adjournment was stressed in a Lahore case also11. Where the plaintiff had at an earlier hearing made a definite case, which if rebutted, would entitle him to a decree, it is not the only course open to the court to dismiss the case for default of appearance; rather the court should exercise a discretion and adjourn hearing as stressed by Fazil Ali J.12.

In fact, as was observed by Kumaraswami Sastri J. in the Pichamma's case, "no Judge with any sense of justice would dismiss a just claim which he considers proved simply because a party fails to appear on an adjourned date".

5. Perhaps an approach to the matter would be clear, if two situations are kept apart, namely, plaintiff's absence and defendant's absence. In the former case, a misunderstanding of the law to the effect that the court is bound to dismiss the suit causes hardship. In such a case, the position is that

(i) an adjournment can be granted;

(ii) a decision on the merits in the plaintiff's favour could cause no grievance to any party. Question of hardship will arise only if a decision on merits is given against the plaintiff.

In the case of the defendant's absence,-

(a) an adjournment can be granted, or

(b) a decision subject to the setting aside procedure under Order IX, rule 13 would cause no grievance. A decision strictly on the merits, in the sense that the remedy under Order IX, rule 13 is to be excluded, would cause hardship to defendant.

6. So far as the inter-relationship of rules 2 and 3 is concerned, the matter can be dealt with separately13-14. The question now is of the exact scope and application of rule 2.

7. Even in the case of the absence of the plaintiff, where the suit is decreed, he would have no grievance. It is only where the suit is dismissed on the merits that he may have a grievance because, as stressed by the Madras High Court, the remedy under Order IX, rule 9 would be lost. (To this extent, the Allahabad Amendment to rule 2 is stringent as compared with the Madras view. On the other hand, in cases where the Allahabad Amendment results in a decree in favour of the plaintiff, it would be beneficial and acceptable even according to the Madras view.)

8. In view of the obscurity of the present position, a clarification is considered desirable.

While a provision authorising the Court in every case to dispose of the suit as if the parties had appeared may be abused, there is no harm, it is felt, if a limited power to do where the evidence of the defaulting party is substantially over be inserted, as in the Allahabad Amendment.

Necessary change is proposed.

1. Cf. AIR 1955 SC 425 (433).

2. Basalingappa v. Shidramappa, AIR 1943 Born 321 (324), right (FB).

3. Rukam Shah v. Shankargoudn, AIR 1941 Born 83 (84), right (Beaumont C.J. and Wassoodew J.).

4. Tulsiram v. Sitaram, AIR 1959 Cal 389.

5. Ram Adhin v. Ram Bharose, AIR 1925 All 182 (Mukherji and Dalai JJ.).

6. Subramania v. Munusamiya, AIR 1916 Mad 890 (897) (right) (Phillips J.).

7. Ningappa v. Gowdappa, (1905) 7 Bom LR 261.

8. Pichamma v. Sreeramulu, (1918) ILR 41 Mad 286: AIR 1918 Mad 143 (FB).

9. Ellammal v. Karuppan, AIR 1936 Mad 625.

10. Gurusanthayya v. Verayya, AIR 1952 Mad 825.

11. Langar Khan v. Zakar, AIR 1934 Lah 56 (Jai Lal

12. Chamak Lal v. Mauji, AIR 1929 Pat 248 (Fazl Ali J.).

13. See amendment proposed to Order 17, rule 3.

14. See also Jhanda Singh v. Saddiq, AIR 1924 Lah 545.

Code of Civil Procedure, 1908 Back

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