IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.12.2010 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM C.M.A.No.274 of 2007 R.Ravindran .... Appellant/Plaintiff vs M.Rajamanickam .... Respondent/Defendant Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the Order passed in I.A.No.2 of 2005 in O.S.No.34 of 2004 on the file of District Judge, Nagappattinam dated 22.09.2006. For Appellant : Mr.V.Bharathidasan For Respondent : Mr.K.V.Subramaniam, Senior counsel for M.A.Abdul Wahab J U D G M E N T This Civil Miscellaneous Appeal arises against the Order of the learned District Judge, Nagappattinam in I.A.No.2 of 2005 in O.S.No.34 of 2004 dated 22.09.2006. 2. The relevant facts are as follows: The appellant/plaintiff filed a suit against the respondent/defendant for recovery of money. The plaintiff was examined as PW1 on 04.12.2003. In the course of his chief- examination, he sought to mark a document as a receipt which was objected to by the learned counsel for the defendant. The lower Court upheld the objection. At such stage, the examination of PW1 was stopped. The appellant/plaintiff moved C.R.P.No.657 of 2004 before this Court. Citing the pendency of the said C.R.P, adjournment was obtained from the lower Court from time to time. The matter stood posted to 10.08.2004. What transpired on such date is informed in the order of the trial Court: "No stay order produced from Hon'ble High Court. Plaintiff present. Not willing to continue his evidence. Hence the suit is dismissed for default with costs." 3. The appellant/plaintiff moved a petition under Order 9 Rule 9 and Section 151 CPC in I.A.No.2 of 2005 towards restoring the suit https://hcservices.ecourts.gov.in/hcservices/ which according to him had been dismissed for default on 10.08.2004. The respondent/defendant opposed the said application and it was contended that the dismissal effected on 10.08.2004 was one under the provisions of Order 17 Rule 3 CPC and as such the remedy for the appellant/plaintiff would be by way of moving an appeal against the order of dismissal and not by way of an application to set aside. The respondent/defendant placed reliance on the judgment of this Court in C.Chennaiya Naidu v. Panchayat Board, Venukadathampatti AIR 1979 Madras 135 and the lower Court accepted the contention of the respondent/defendant and dismissed the application. It is against such order of dismissal that the present appeal arises. It may be noted that in the interregnum, C.R.P.No.657 of 2004 moved by the appellant/plaintiff stands dismissed by this Court. For a better appreciation of whether the order of dismissal effected by the trial Court in O.S.No.34 of 2004 on 10.08.2004 is one which would fall within the scope of Order 17 Rule 2 CPC which would entitle the appellant/plaintiff to move an application for restoration of the suit or would be one under Order 17 Rule 3 CPC which would require him to move an appeal there against, it would be proper to reproduce Order 17 Rule 2 and 3 of Civil Procedure Code: "2.Procedure if parties fail to appear on day fixed. - Where, 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. [Explanation.- Where the evidence or a substantial portion of the 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, the Court may, in its discretion, proceed with the case as if such party were present.] 3.Court may proceed notwithstanding either party fails to produce evidence, etc.- Where any party to suit to whom time has been 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) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under Rule 2.]" 4. The Full Bench of this Court in Prativadi Bhayankaram Pichamma v. Kamisetti Sreeramulu and others AIR 1918 Madras 143(2) had held that Order 17 Rule 2 and Order 17 Rule 3 CPC are mutually exclusive. Even while doing so, it had observed as follows: "It will thus be seen that R.2, O.17 empowers the Court to apply to adjourned hearings the same procedure to be followed in case of failure of the parties to attend at the first hearing. It however expressly empowers the Court instead of proceeding https://hcservices.ecourts.gov.in/hcservices/ under O.9, to pass such other order as it thinks fit. There is therefore nothing to prevent the Court from adjourning the case to another day if the parties fail to appear and the Court thinks that in the interests of justice it should not dismiss the suit or decree it ex parte. This should be borne in mind as it has been strenuously argued before us or the strength of some of the observations in some of the decisions referred to in the course of argument that the view taken in Chandramathi Ammal v. Narayanasami Iyer is likely to entail great hardship on the defaulting party. Where the Judge thinks that a defaulting party has proved his case he is not bound to apply the provisions of O.9, but can adjourn the case to another day in case he fails to appear and I am sure 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. On the other hand, it seems to me to be pretty plain that the application of R.3, will be the harder of the two courses as R.3 empowers the Court to proceed to decide the suit forthwith on the materials before it. So far as the plaintiff is concerned, the Court may dismiss the suit on the merits if the evidence on record does not prove plaintiff's case. It may pass a decree if the defendant is absent and there is formal proof of plaintiff's claim or the onus is on the defendant. The dismissal of the suit or the passing of a decree being on the merits, the only remedy of the party aggrieved will be by appeal or review. It is difficult to see what the use of an appeal will be if there was no application for adjournment which was refused. The case will have to be considered by the appellate Court and decided on the materials before it and the Court cannot in very many cases say that the decision of the lower Court on the materials before it is erroneous. As regards review the scope of O.47, is more restricted than that of O.9. If the plaintiff's evidence is sufficient then the defendant if he appears will be entitled to let in his evidence in the absence of the plaintiff and it will often be extremely difficult to determine how far reliance ought to be placed on evidence which has not been tested by cross-examination. The provisions of R.3 are certainly more stringent than the provisions of R.2, and except in cases where the case has been closed on both sides and the adjournment is only for argument, it is difficult to see how any decision on the materials before the Court can be satisfactory." 5. Thus, the Full Bench of this Court had considered that the provisions of Order 17 Rule 3 could be brought into play only where the case has been closed on both sides and the adjournment was only for argument as otherwise, it would be difficult to arrive at a satisfactory decision on the materials before it. Thus, it is apparent that 'consideration of materials before it' is necessary to arrive at a finding under Order 17 Rule 3. https://hcservices.ecourts.gov.in/hcservices/ 6. The judgment of a Division Bench of this Court in Soopi Haji and 4 others v. R.M.Ramanathan Chettiar 1993 (2) L.W. 146 is an elucidation of the judgment of the Full Bench of this Court in Prativadi Bhayankaram Pichamma v. Kamisetti Sreeramulu and others AIR 1918 Madras 143(2) on comparison with other judgments on the point. 7. Though a Full Bench of the Rajasthan High Court in Gopi Kisan v. Ramu and another AIR 1964 Rajasthan 147 has found reason to disagree with the decision of the Full Bench of this Court that Order 17 Rule 2 and Order 17 Rule 3 are mutually exclusive, this Court finds that such Full Bench also has dealt with the aspect of 'decision on the materials before it' and has held as follows: "19.In a long series of decisions adopting the view of the Calcutta High Court for diverse reasons it has been held that the existence of material is necessary for deciding a suit under Order XVII Rule 3. The language of the statute does not expressly indicate the existence of material as an essential condition for its application. This interpretation has been influenced apparently by the word 'decide' to mean decide on merits. In Ramkaran's case, II.R (1953) 3 Raj 798 the learned Judges of this Court felt persuaded by the provisions of Order XX Rule 4 of the Code of Civil Procedure to hold that the existence of material was necessary and because only pleadings and issues were on record they opined that the dismissal should be construed to be one under Order XVII Rule 2. On the other hand in Amarsingh's case, 1953 Raj LW 365, the learned Judges were of the view that where the plaintiff failed to discharge the burden placed on him in the suit, the logical conclusion was that the suit should be dismissed whether material existed or not. No decision has attempted to indicate the exact kind of quantum of material which is requisite for the operation of Order XVII Rule 3. The difficulty of such a task is easy to appreciate. In the wide varieties of cases and complexities of situation formulation of universal rules, is a task not easy of attainment. The indications, however, are as in Ramkaran's case, ILR (1953) 3 Raj 798 that the material may mean 'evidence' on record. The obvious question which arises next is whether can absence of evidence altogether exclude the applicability of Order XVII Rule 3? It is difficult to lay down such a wide proposition. The intention of Order XVII Rule 3 as has been noticed is that a party seeks time to produce evidence or do something to further the progress of a suit and makes default in doing either, a Court may decide the suit forthwith. To our mind, it is too wide a proposition to lay that in no case where evidence has not been led Rule 3 would be inapplicable. The test should be whether the Court before whom the suit is pending on the basis of material before it is in a position to decide the suit forthwith, the default of a party notwithstanding. The https://hcservices.ecourts.gov.in/hcservices/ pleadings, of the parties and issues arising therefrom may in some cases enable a Court to decide the suit forthwith. Suppose in a suit on a promissory note the execution of which has not been denied by the defendant and the defendant pleads want of consideration seeking time to produce evidence. Time is allowed but he makes default in producing evidence. Can the suit be not decided in view of the legal presumption contained in Section 118 of the Negotiable Instruments Act? In a converse case the defendant denies execution and the plaintiff is granted time to prove execution and he makes default. Can the suit be not decided on the ground of the default made by the plaintiff in discharging the burden of proof placed on him? In the first illustration it can perhaps be said that the promissory note execution whereof has been admitted constitutes evidence and there is material on record to attract the applicability of Rule 3. In the second illustration, however, the execution not having been admitted there is obviously no evidence. The plaintiff fails to discharge his duty. Can we say that the suit should be disposed of in accordance with Order IX as per Order XVII Rule 2? The answer is plainly in the negative for the situations envisaged under Order IX are different than the one we have in the illustration. Can it be said that the Court may pass such other order as it thinks fit as laid down in Rule 2 of Order 17? Such an order can be no other than to adjourn the case for plaintiff's absence in a situation such as this. Therefore, if the plaintiff fails to discharge the burden placed on him in view of the pleadings and consequent issues despite the opportunity afforded to him the case cannot be adjourned for his evidence ad infinitum and the Court at some stage or the other has to decide it for want of evidence. Even in a contested suit issues are sometimes decided for want of evidence and so can the whole suit. Therefore, in our opinion the existence of material does not necessarily mean existence of evidence. If a suit can be decided despite the lack of evidence on the material before it Order XVII Rule 3 can be said to govern the case. Material on record need not be given a technical meaning and equated to evidence. The circumstances of each case will regulate the exercise of discretion vested in a Court. It is for the Court to exercise its discretion and to indicate without ambiguity whether it is exercising its powers under Order XVII Rule 3 or not. It is correct that the application of Rule 3 restricts the future remedies of a defaulting party and is a stringent provision, and, therefore, it should be applied with circumspect caution and judicial restraint. Ramkaran's case, ILR (1953) 3 Raj 798 therefore, has to be read with the aforesaid modification. No exception can, however, be taken to the reasoning adopted in Amarsingh's case, 1953 Raj LW 365." https://hcservices.ecourts.gov.in/hcservices/ 8. A Division Bench of this Court in Pugal v. Kamala and another AIR 1984 Madras 262 had stated as follows: "6.One thing that cannot be disputed is that Order 17 enables a Court to decide a case either under Order 17, Rule 3 or under Order 17, Rule 2. In the circumstances, what exactly the Court has done will depend upon the facts and circumstances of the situation. The fact that the Court has cited the provisions of Order 17, Rule 3(a) for the purpose of dismissing the suit will not be conclusive on the question whether the decision was on the merits or not. In every case, the Court will have to lift the veil and find out whether really the decision was on the merits. If the Court comes to the conclusion that the suit happened to be dismissed really on the ground of non- prosecution on the part of the plaintiff, then notwithstanding the fact that the provisions of Order 17, Rule 3(a) have been cited by the Court, it will be open to consider the order as really one for non-prosecution and not on the merits. If an order in law and substance is an order under Order 9 though purported to be under O.17, R.3 it would cause unnecessary expenditure of time and money to an aggrieved party if he is compelled to file an appeal instead of an application for restoration. Obviously, in a majority of such cases, particularly in cases where the suit is dismissed for non- prosecution, the decree cannot be at all on the merits as there will be no evidence at all for the appellate Court to consider. The present case is a clear illustration of the same. In such case all that the appellate Court should do, if it accepts the case of the appellant, will be to set aside the decree on the ground that the trial Court was not justified in proceeding under Order 17, Rule 3, and remand the case. Thus the parties will be in the same position as they would have been if the defaulting party had been originally permitted to file a restoration application and had not been compelled to file an appeal. We are of the opinion that notwithstanding the fact the Court purports to act under Order 17, Rule 3, if the circumstances set out by the Court are such that an order under O.9 read with O.17, R.2 would be legally justified and the actual order passed is one which could be legally passed under Order 9 read with Order 17, Rule 2 it is permissible for the Court to entertain an application for restoration under Order 9. In this case, even though the party was present his appearance must be deemed to have been only for the purpose of requesting for an adjournment." 9. The decision of the Kerala High Court in Rama Panicker Divakara Panicker of Pavana Veedu v. Bakari Hydrose, Chennampilly and others AIR 1990 Kerala 295 is on similar lines. 10. Taking into consideration the various decisions on the point, it appears that the decision relied upon by the https://hcservices.ecourts.gov.in/hcservices/ respondent/defendant: C.Chennaiya Naidu v. Panchayat Board, Venukadathampatti AIR 1979 Madras 135 stands alone. This is the only decision which holds that the dismissal of a suit for non-prosecution even in the absence of materials for the Court to decide the suit on merits, would 'still be a decision in the suit and it would not be any less so since it has been dismissed for default'. It is upon taking such a view that this Court had held an appeal maintainable. 11. In response to the query of this Court as to what was the meaning attached to the word 'decide' found in Order 17 Rule 3(a) CPC, learned Senior counsel would harp on the decision of this Court in C.Chennaiya Naidu v. Panchayat Board, Venukadathampatti AIR 1979 Madras 135. When informed that a portion of the examination of PW1 in the case was conducted on 04.12.2003 and the order of the trial Court dated 10.08.2004 did not reflect any consideration thereof and the same would also be material before the Court which, if considered, might bring in the application of Order 17 Rule 3 CPC, learned Senior counsel would respond by informing that such of the testimony of PW1 as recorded on 04.12.2003 was not tested in cross- examination and therefore, could not be read as evidence. It is his contention that “in the absence of evidence” the trial Court could arrive at a finding to dismiss the suit when the conditions necessary for application of Order 17 Rule 3 were present and even such a finding would be a decision in the suit. This Court is unable to agree. 12. The decisions of the Full Bench of this Court in Prativadi Bhayankaram Pichamma v. Kamisetti Sreeramulu and others AIR 1918 Madras 143(2), Gopi Kisan v. Ramu and another AIR 1964 Rajasthan 147 as also the decision of the Division Bench of this Court in Pugal v. Kamala and another AIR 1984 Madras 262 would go to show that in deciding a suit under Order 17 Rule 3(a) an appreciation of the material before the Court would be necessary. 13. The judgment of the Kerala High Court in Rama Panicker Divakara Panicker of Pavana Veedu v. Bakari Hydrose Chennampilly and others AIR 1990 Kerala 295 informs us as follows: "6.The two decisions, which held that presence of the party, even if he is not prepared to participate in the trial is presence attracting R.3, are Rama Rao v. Shantibai, AIR 1977 Madh Pra 222 (FB) and C.Chennaiya Naidu v. Panchayat Board, AIR 1979 Madras 135. The first one, which is a Full Bench decision, held that when the Advocate alone appears to seek an adjournment and he retires when adjournment is refused, it will not be appearance at all. The second decision took the extreme view. That is a single Bench decision, which disagreed with two earlier decisions of the same Court which took a contrary view. But the trend of authorities supplied by decisions of various High Courts is unanimous on the point that the presence or appearance of a party or counsel without preparedness to co- https://hcservices.ecourts.gov.in/hcservices/ operate for the progress of the case cannot be treated as presence attracting R.3(a), which is a condition precedent to the decision on the merits except in cases covered by explanation to R.2. We can have those decisions in Kunjannam v. A.Issac, 1961 Ker LT 653, Abdulla Haji v. Mammunhi Barikat, 1969 Ker LT.433, Natesa Thevar v. Vairavan Servai, AIR 1955 Madras 258, Gulvir Singh v. Tara Chand, AIR 1982 Allahabad 250, Thummala Suryamma v. Andhra Pradesh State Electricity Board, AIR 1975 Andh Pra 90, Marothu Suryarao v. Paluri Peddiyya, AIR 1967 Andh Pra 152, Muzammal Hussain v. Chaganlal Jain, AIR 1967 Assam 14, Hindustan Steel Ltd. v. Prakash Chand Agarwal, AIR 1970 Orissa 149, Sohanlal Ruia v. Kedarnath Purushottamdas and Co., AIR 1969 Cal 516, Gopi Kisan v. Ramu, AIR 1964 Rajasthan 147 (FB), M.Agaiah v. Mohammed Abdul Kareem, AIR 1961 Andh Pra 201 (FB) and Sankara Pillai v. Balakrishnan Nair, (1988) 1 Ker LT 339. 7.The power conferred on Courts under R.3 of O.XVII to decide the suit on the merits for the default of a party is a drastic power which seriously restricts the remedy of the unsuccessful party for redress. It has to be used only sparingly in exceptional cases. Physical presence without preparedness to co-operate for anything connected with the progress of the case serves no useful purpose in deciding the suit on the merits and it is worse than absence. In any contingency, the discretion is always with the Court to resort to R.2 or 3 or to grant an adjournment for deciding the suit in a regular way in spite of default. Rules 2 and 3 are only enabling provisions. In order to decide the suit on the merits, the mere existence of the conditions enumerated in R.3 alone will not be sufficient. There must be some materials for a decision on the merits, even though the materials may not be technically interpreted as evidence. Sometimes the decision in such cases could be on the basis of pleadings, documents and burden of proof. Anyhow, it is appreciable for the Court to indicate by the judgment that the decision is for default or on the merits. The only alternative of the Court in cases covered by R.3 or the explanation to Rule 2 is not to decide on the merits alone. If such an interpretation is given, it will amount to an unjustified preference to one who purposely absents than to one who presents but unable to proceed with the case. 8.'Appearance' and 'presence' have well recognised meanings. They imply presence in person or through pleader properly authorised for the purpose of conducting the case. Rule 3 comes into play only when presence is to proceed with the case, but default is committed in any one of the three ways mentioned in R.2 or explanation to Rule 2 is extracted. Those are cases in which some materials are there for the Court to decide the case on the merits and not cases where decision could only be for default. That is clear from a combined reading of Rr.2 and 3 and the explanation. In this case, none of these https://hcservices.ecourts.gov.in/hcservices/ conditions are present and the decision is evidently for default. R.2 alone is attracted. Appeal will not lie." 14. This is in conformity with the decision of the Division Bench of this Court in Pugal v. Kamala and another AIR 1984 Madras 262. It also may be noted that the Court