Case: G.RATNA RAJ (DEAD) BY LRS Vs. SRI MUTHUKUMARASAMY PERMANENT FUND LTD AND ANR

The crucial words in the Explanation areproceed with the case. Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the court or not. 9.In Rule 2, the expression used ismake such order as it thinks fit, as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to the court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the court to decide the suit forthwith. The basic distinction between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present. 10. The crucial expression in the Explanation is where the evidence or a substantial portion of the evidence of a party. There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee partys stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The courtwhileactingunder the Explanation may proceed with the case if that prima facie is the position. The court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision. 23. Now when we examine the facts of the case at hand keeping in view the law laid down in the case ofB Janakiramaiah Chetty(supra), we find that the plaintiffsevidence was recorded and his case was also closed. It is not in dispute that the defendants were placed ex parte on the date when the case was fixed for recording defendants evidence but the same was not recorded due to the defendants absence on the said date. In other words, it was a case where the defendants did not lead any evidence. 24. In such a situation arising in the case, in our view, the case at hand would not fall under Explanation to Order 17 Rule 2 of the Code because inordertoattract theExplanation,suchparty which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treatsuch party as present on that day and is accordingly empowered to proceed in the suit. 25. In this case, the party,who was absent and was proceededex partewas the defendants and they had not led any evidence whereas it was the plaintiff, who was present and had led his evidence. 26. In other words, if the plaintiff had remained absentand wasfoundtohaveledevidence,the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the plaintiff as present for passing appropriate orders. Such is, however,not the case here. 27. Similarly, in converse situation, if the defendants had remained absent (as has happened in this case) on that date and if it would have noticed that they had adduced the evidence either fully or substantially prior to the date on which they were proceededex parte, the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the defendants as present on that day for passing appropriate orders in the suit. Such is, however, again not the case here. 28.We are,therefore,of the view that since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Order 17 Rule 3 (b) read with Order 17 Rule 2 of the Code for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order 9 of the Code or could have made any other order as it thinks fit. 29. As mentioned above, the Trial Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree. Such decree, in our opinion, was an ex partedecree within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]23. Now when we examine the facts of the case at hand keeping in view the law laid down in the case ofB Janakiramaiah Chetty(supra), we find that the plaintiffsevidence was recorded and his case was also closed. It is not in dispute that the defendants were placed ex parte on the date when the case was fixed for recording defendants evidence but the same was not recorded due to the defendants absence on the said date. In other words, it was a case where the defendants did not lead any evidence24. In such a situation arising in the case, in our view, the case at hand would not fall under Explanation to Order 17 Rule 2 of the Code because inordertoattract theExplanation,suchparty which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treatsuch party as present on that day and is accordingly empowered to proceed in the suit25. In this case, the party,who was absent and was proceededex partewas the defendants and they had not led any evidence whereas it was the plaintiff, who was present and had led his evidence26. In other words, if the plaintiff had remained absentand wasfoundtohaveledevidence,the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the plaintiff as present for passing appropriate orders. Such is, however,not the case here27. Similarly, in converse situation, if the defendants had remained absent (as has happened in this case) on that date and if it would have noticed that they had adduced the evidence either fully or substantially prior to the date on which they were proceededex parte, the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the defendants as present on that day for passing appropriate orders in the suit. Such is, however, again not the case hereWe are,therefore,of the view that since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Order 17 Rule 3 (b) read with Order 17 Rule 2 of the Code for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order 9 of the Code or could have made any other order as it thinks fit29. As mentioned above, the Trial Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree. Such decree, in our opinion, was an ex partedecree within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants.