Report No. 27

Order XVII, rule 3

1. This is intended to define clearly the scope of rule 3, so as to state the action to be taken by the Court when

(i) the parties are present, and

(ii) the parties are absent.

Compare, Pichamma v. Sreeramulul, 1918 ILR 41 Mad 286: AIR 1918 Mad 143 (FB), which contains a useful discussion on the subject.

2. The following discussion of the views of various High Courts will show that at present opinion on the point is not uniform:

Madras.-The Court should, in a case where the plaintiff is absent, proceed under rule 2 and dismiss the suit for default, so that the plaintiff may have an opportunity to apply under Order IX, rule 9 to set aside the dismissal1.

Bombay.-The Court should proceed under rule 2 and dismiss the suit for default2, but if the evidence has been closed it should proceed under rule 3 and deal with the suit on the merits3-4.

Lahore.-Makes a distinction between cases where there are no sufficient materials on the record and cases where there are such materials. In the former case, the Court should proceed under rule 25, but in the latter case it may proceed to decide the suit under this rule6.

Allahabad.-The Court should proceed under rule 2 and not under this rule7. But, by an amendment of rules 2 and 3 made by the Allahabad High Court, the Court has power to proceed to decide the suit on the merits8 in certain cases under rule 2 also.

Patna.-This rule does not apply unless the hearing has commenced9.

Calcutta.-In order to apply the procedure of rule 3, two elements must be present, viz. (1) the adjournment must have been at the instance of the party, and (2) there must be materials on the record for the Court to deal with the suit; the presence of one element without the other does not justify10 the application of rule 3.

1. Ghandramathi v. Narayanswami, 1910 ILR 33 Mad 241; Pichhamma v. Sreeramulu, 1918 ILR 41 Mad 286: AIR 1918 Mad 143 (147) (FB); Elammal v. Karuppan Chetti, AIR 1936 Mad 625; Guru Santhayya v. Veerayya, AIR 1952 Mad 825.

2. Basayya v. Allayya, AIR 1925 Born 328; Shrimant v. Smith, 1890 ILR 20 Born 736.

3. Irappa v. Sidava, AIR 1931 Born 111.

4. See also discussion in Basalingappa v. Shidramappa, AIR 1943 Born 33 (FB).

5. Hargopal v. Harish Chander, 1919 Punj Rec. No. 48, p. 120, 47 IC 596; Sher Ali v. Mangu, 1919 Punj Rec. No. 150, p. 395, 52 IC 292; both cited in Mulla Code of Civil Procedure, (12th Edn.), pp. 714-715.

6. Jhanda Singh v. Sadiq, 1924 ILR 5 Lah 218: AIR 1924 Lah 545.

7. Ganish Lal v. Debi Das, 1925 ILR 47 All 140 (146): AIR 1925 All 267; Ram Adhin v. Ram Bharose, 1925 ILR 47 All 181 (185): AIR 1925 All 182. Butsee Badam v. Nathu, 1903 ILR 25 All 194; Galati Bibi v. Ghasita, 1912 ILR 34 All 123.

8. Ram Dulari v. Bhola, AIR 1935 All 398.

9. Mahabir Praaad v. Sheodayal, (1928) ILR 7 Pat 236: AIR 1928 Pat 167.

10. Brojendra v. Promatha, AIR 1933 Cal 412.