Report No. 27
Order XVII, rule 2 and Allahabad Amendment
Under the Allahabad Amendment to Order XVII, rule 2
(i) where a substantial portion of the evidence is concluded, the court may (even if a party is absent) dispose of the suit on merits. This was construed as confined to cases where the party failing to appear has finished his evidence1;
(ii) if a pleader is present, then even if he is engaged only for making an application, the party is deemed to be present2;
The first point has already been dealt with. As regards the second, it has been observed by the Bombay High Court3, that the Allahabad Explanation to Order XVII, rule 2 regarding pleaders may be said to have changed the provisions of Order V, rule 1, in their application to Order XVII, rule 2. In the absence of the Explanation regarding pleaders, where a pleader is appearing only for applying for adjournment, and withdraws after the adjournment is refused, the case is one of the court proceeding ex parte6.
1. Jaggo v. Kanhaiya, AIR 1957 All 344. See also AIR 1957 All 238 and AIR 1962 All 515.
2. As to the effect of Allahabad Amendment, see
(i) Baldeo Singh v. Chhaja Singh, AIR 1931 All 703;
(ii) Jhandoo Mal v. Khalsa Singh, AIR 1940 All 305;
(iii) Tilak Singh v. Pradyumna Singh, AIR 1937 All 347.
3. Basalingappa v. Shidrammappa, AIR 1943 Born 321 (324).
4. Habib Baksh v. John Mal, AIR 1928 All 760.