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Report No. 27

Order XVII, rules 2 and 3 compared

1. The points of difference between Order XVII, rules 2 and 3 may be analysed as follows:-

Rule 2

Rule 3

(a) Applies generally to9 all cases where hearing is adjourned.

Applies only where adjournment is granted--

(i) at the instance of a party; and

(ii) by way of granting time for a particular purpose.

(b) Is confined to cases where the parties or any of them fail to appear.

(b) Not confined to non-appearance (as the language stands at present), and applies where there is failure to do the act for which time was granted.

(c) Court can-

(i) proceed to disposeof the suit in one of the modes directed by Order IX, or

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

(c) Court may proceed todecide the suit forthwith.

(d) Object is to state the consequences of non-appearance. Emphasis is on discretion of Court.

(d) Emphasis is on the court's power to proceed, so that non-appearance of the act in question need not interrupt the progress of the suit.

2. Cases when the two rules overlap are those where an adjournment is granted (rule 2) at the instance of a party-(rule 3), and there is non-appearance as well as non-performance of the act for which adjournment was sought, so that both the rules are satisfied.

It is these situations which have presented difficulties and raised questions, leading to three different approaches, in cases of non-appearance of the parties or either of them. The three different approaches are (i) only rule 2 should be applied; (ii) rule 3 can be applied; (iii) if there are materials on record, rule 3 may apply, otherwise rule 2 applies.

The proposed rule1 clarifies the position.

1. Order XVII, rule 3 (proposed).

Code of Civil Procedure, 1908 Back

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