IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 RFA.No. 115 of 2009() --------------------- OS.358/2006 of ADDL.SUB COURT, PALAKKAD .................... APPELLANTS ------------------------------ 1. ARU @ ARUMUGHAN, S/O. MUTHU, MAILAROAD, KODUVAYUR, CHITTUR TALUK. 2. PETTA, W/O. CHAMIYAR, POKKUNNI, VADAVANNUR, CHITTUR TALUK. 3. MANI, W/O. APPU, PULINELLI, KOTTAYI, ALATHUR. 4. KALAVATHI, W/O.KUNJUKUTTAN, ODUKUMPARA KODUVAYUR, CHITTUR TALUK. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): -------------------- 1. DAIVANI, W/O.RAMAN, MAILAROAD, KODUVAYUR, CHITTUR TALUK. 2. VELAYUDHAN, MAILAROAD, KODUVAYUR, CHITTUR TALUK. 3. RAMAN DO..DO... ADV. SRI.O.RAMACHANDRAN NAMBIAR FOR R1 SRI.K.S.BABU FOR R1 SMT.N.SUDHA FOR R1 SRI.GEEN T.MATHEW FOR R1TO R2 SRI.ANTONY MATHEW FOR R3 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & K.SURENDRA MOHAN, JJ. ------------------------------------------- RFA No.115 of 2009 ------------------------------------------- Dated this the 24th day of August, 2009 JUDGMENT Raman,J. This is an appeal filed against an order decreeing the suit for partition of the property into two equal shares between the plaintiff and the defendant. Defendants 1,4, 5 and 6 are the appellants. The appellant's grievance is that the suit ought not to have been decreed merely because they were absent on the day on which the case was posted. It is pointed out that if the parties failed to appear on the day fixed, the court would have proceeded under Order XVII Rule 2 of the CPC. The explanation to Rule-2 gives a discretion to the court to proceed under Rule 3, even if a party is absent, but that discretion is limited only in cases where a party who is absent has led some evidence or has examined substantial part of their R.F.A.No.115 of 2009 2 evidence and a appeal will lie against such an order, but not against the order under Rule I of Order XVII. 2. We have heard the parties. In the light of the decision reported in Prakash Chander v Janki Manchanda (1987 SC 42) and in the light of the specific provisions contained in Order XVII Rule 2, it admits of no doubt that where, on any date 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 order, as it thinks fit. Explanation can however be extracted and the court can exercise the discretion provided where the party who is absent has led some evidence holding it as substantial. Then such an order will become an appealable order also. In this case, the court did not exercise its discretion under the explanation, since this is a case where no evidence was adduced. Therefore, the court would only proceed under Order XVII Rule 2 read with order IX which has not been done. R.F.A.No.115 of 2009 3 Accordingly, the appeal is allowed. The judgment and decree passed in O.S.No.358 of 2996 of the court below is set aside and the court shall proceed from the stage at which the case stood posted and dispose of the matter in accordance with law. The parties shall appear before the court below on 29.9.2009. P.R.RAMAN, JUDGE K.SURENDRA MOHAN, JUDGE css/