Y. P. LELE versus MAHARASHTRA STATE ELECTRICITY DISTRIBUTION COMPANY LTD. & ORS.
[2023] 11 S.C.R. 141, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
[2023] 11 S.C.R. 141 : 2023 INSC 732
141
CASE DETAILS
Y. P. LELE
v.
MAHARASHTRA STATE ELECTRICITY DISTRIBUTION 
COMPANY LTD. & ORS.
(Civil Appeal No.5155 of 2023)
AUGUST 16, 2023
[VIKRAM  NATH AND AHSANUDDIN AMANULLAH, JJ.]
HEADNOTES
Issue for consideration: Whether the High Court committed an error 
in applying the explanation to Or. XVII, r.2 CPC and based upon it held 
that an application u/Or. IX Rule 13 CPC would not be maintainable as the 
presence of the defendant would be deemed to be recorded at the time of 
disposal of the suit.
Code of Civil Procedure, 1908 – Explanation to Or. XVII, r.2 and 
Or. IX, r.13:
Held : At the stage when plaintiﬀ ’s evidence was being led, counsel 
for defendants withdrew his vakalatnama – Trial Court directed to proceed 
u/Or. XVII, r.2 CPC against defendants and decreed suit ex parte – Trial 
Court allowed application of defendants u/Or. IX, r.13 – However, High 
Court held application u/Or. IX Rule 13 CPC would not be maintainable 
and applied explanation u/Or.XVII, r.2 CPC – The explanation to Or. XVII, 
r.2 in the instant case could have been invoked only if the plaintiﬀ , after 
adducing his evidence or substantial evidence, failed to appear, the Court 
could have recorded his presence while disposing of the suit  –  But, once 
the defendant had not led any evidence at all, the explanation could not be 
invoked as against the defendant/appellant – The High Court committed an 
error in applying the explanation to Or. XVII, r. 2 CPC
and based upon it 
holding that an application u/Or. IX, r.13 CPC would not be maintainable as 
the presence of the defendant would be deemed to be recorded at the time 
of disposal of the suit – Thus, the impugned order of the High Court is set 
aside – Trial Court to proceed and decide the Special Civil Suit on its own 
merits, after giving due opportunities to the parties. [Paras 4, 5, 6, 7 and 20]
142
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
Code of Civil Procedure, 1908 – Or. XVII, r.2 – At the stage when 
plaintiﬀ ’s evidence was being led,counsel for defendants withdrew his 
vakalatnama – Trial Court directed to proceed u/Or. XVII, r.2 CPC 
against defendants and decreed suit ex parte – Propriety of:
Held : As a matter of fact, once the counsel had withdrawn his 
Vakalatnama, in normal course, the Trial Court ought to have issued notice to 
the defendants to engage another counsel, which it did not do and proceeded 
ex parte – The Trial Court committed an error in doing so. [Para 21]
Code of Civil Procedure, 1908 – Or. XVII, r.2 – Discernible under: 
Held : What is discernible is that u/Or. XVII,  r.2, the Court would 
proceed to pass orders with respect to any of the parties being absent or both 
the parties being absent – Whereas the explanation is conﬁ ned to record 
the presence of that party and that party alone, which has led evidence or 
substantial evidence and has thereafter failed to appear. [Para 19]
LIST OF CITATIONS AND OTHER REFERENCES
Maharashtra State Electricity Board vs. Miraj Electric Supply Co. 
Ltd. Ors. Civil Writ Petition No. 1488 of 2015 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION : Civil Appeal No.5155 of 2023
From the Judgment and Order dated 27.06.2018 of the High Court 
of Judicature at Bombay in WP No.1488 of 2015.
Appearances:
Vinay Navare, Sr. Adv., Samrat Krishnarao Shinde,
Adv. for the 
Appellant.
Ajit Bhasme, Sr. Adv., Mukesh Kumar Pandey, Rajnish Kumar Singh, 
A. Bhasme, Sanjay Kumar Visen, Anand Landge, Chander Shekhar Ashri, 
Advs. for the Respondents.
143
JUDGMENT/ORDER OF THE SUPREME COURT
JUDGMENT
VIKRAM NATH, J.
Leave granted.
2. The appellant is the original defendant no.5, as described in the plaint 
of the Special Civil Suit No. 125 of 1988.
3. The present appeal assails the correctness of judgment and order dated 
27.06.2018 passed by the learned Single Judge of the Bombay High Court in 
Civil Writ Petition No. 1488 of 2015titled “Maharashtra State Electricity 
Board vs. Miraj Electric Supply Co. Ltd. Ors.”, whereby the petition was 
allowed, the order dated 30.09.2014 passed by the Trial Court allowing the 
application under order IX Rule 13 of the Code of Civil Procedure, 19081
was set aside and the exparte decree was maintained.
4. Shorn of unnecessary facts,Maharashtra State Electricity Board2 ﬁ led 
Special Civil Suit No. 125 of 1988 in the Court of Civil Judge, Senior Division 
at Sangli impleading Miraj Electric Supply Co. Ltd.3 as defendant no. 1 and 
its ﬁ ve Directors as defendant nos. 2 to 6 for recovery of Rs. 1,42,85,177.47/- 
with costs of suit and further praying for interest at the rate of 18% per annum 
from the date of presentation of the suit till realisation of the aforesaid amount. 
The defendants appeared and ﬁ led their written statements. The plaintiﬀ ’s 
evidence was being led and at that stage the counsel for the defendants Shri. 
M.B. Karmarkar withdrew his Vakalatnama vide Ex. 112. He had also not 
cross-examined the witnesses. The Trial Court, on 04.12.2004, directed for 
suit to
proceed under Order XVII Rule 2 of CPC against the defendants. 
Thereafter the Trial Court proceeded to record the evidence of the plaintiﬀ  
and, vide judgement and order dated 29.01.2005, decreed the suit exparte
with costs. The operative portion of the judgment is reproduced hereunder:
“Suit is decreed exparte with cost, as under:
1. The defendants No. 1 to 6 jointly and severally to pay Rs. 
1,42,85,177.47 Ps. (Rs. One crore,forty two lakhs, eighty ﬁ ve thousands, 
1 
In short, “CPC”
2 
In short, “MSEB”
3 
In short, “MESC”
Y. P. LELE v. MAHARASHTRA STATE ELECTRICITY 
DISTRIBUTION CO. LTD.
144
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
one hundred seventy seven and forty seven paise only) to the plaintiﬀ  
board M.S.E.B.). They shall pay interest at the rate of Rs.18% p.a. on 
the arrears amount of Rs. 1,0490032.36 Ps. (Rs. One crores four lakhs 
nineteen thousands thirty two and thirty six paise only) from the date 
of the suit till its realization.
2. Decree be drawn up accordingly.”
5. The defendants,on coming to know of the exparte decree,belatedly 
ﬁ led an application under Order IX Rule 13 CPC accompanied by an 
application for condonation of delay under Section 5 of the Limitation Act, 
1963 on 21.09.2006. The Trial Court, vide order dated 20.09.2010, allowed 
the application under Section 5 of the Limitation Act ﬁ nding the explanation to 
be satisfactory for the delay caused with costs of Rs. 3,000/- on the defendants 
to be deposited within ten days.
6. Thereafter, the Trial Court vide order dated 30.09.2014, allowed the 
application under Order IX Rule 13 CPC, set aside the exparte decree dated 
29.01.2005 while imposing ﬁ ne of Rs. 1,000/- and restored the Special Civil 
Suit No. 125 of 1988 to its original number.
7. The plaintiﬀ -MSEB preferred a Writ Petition before the High Court 
under Articles 226 and 227 of the Constitution. The High Court, by the 
impugned order dated 12.01.2015, allowed the Writ Petition, set aside the 
order dated 30.09.2014.As a result, the suit of the respondent-MSEB stood 
decreed exparte. The petition was allowed on the
ground that the application 
under Order IX Rule 13 CPC would not be maintainable inasmuch as the High 
Court had applied the explanation under Order XVII Rule 2 CPC.
8. Aggrieved by the same, the present appeal has been preferred by 
impleading MSEB as respondent no.1, the contesting respondent,and also 
impleading the other four Directors as respondent nos. 3 to 6. It also impleaded 
MESC as respondent no. 2. At some stage during the pendency before this 
Court, the respondent nos. 2 to 6 were directed to be deleted from the array 
of parties vide order dated 21.10.2019.However later on, vide order dated 
15.09.2021, Respondent Nos. 2 and 6 were restored as party respondents. 
9. It would be worthwhile to mention that the appeal has been preferred 
by one of the Directors, as noted in the beginning, being defendant no.5 before 
the Trial Court.
145
Y. P. LELE v. MAHARASHTRA STATE ELECTRICITY 
DISTRIBUTION CO. LTD. [VIKRAM NATH, J.]
10. We have heard learned counsel for the parties and perused the 
record.
11. The submission of learned counsel for the appellant is that the 
High Court committed a grave error in applying the explanation to Order 
XVII Rule 2 CPC. According to him, the order passed by the Trial Court 
decreeing the suit exparte and the earlier order dated 04.12.2004 was only 
an order under Order XVII Rule 2 CPC and not under the explanation as 
the explanation would not be applicable. It was also submitted that the Trial 
Court itself, while decreeing the suit, had recorded that it was an exparte 
decree and under Order IX Rule 13 CPC an exparte decree could be applied 
for being recalled. 
12. On the other hand, the submission of learned counsel for the 
respondent MSEB is to the eﬀ ect that out of the ﬁ ve Directors only one of 
them had approached this Court, whereas the defendant no.1-company as 
also the other four Directors defendant nos. 2 to 4 and 6 are not before this 
Court challenging the said order. It is further submitted that the High Court 
was right in allowing the writ petition by invoking the explanation to Order 
XVII Rule 2 CPC and the appeal deserves to be dismissed.
13. It would be worthwhile to mention that this Court, vide order dated 
10.12.2018, had directed the appellant to deposit 50% of the suit claim i.e. 
half of Rs. 1,42,85,177/- within a period of six weeks and the
matter was 
directed to be listed after six weeks. On 25.01.2019, this Court being satisﬁ ed 
that 50% of the suit claim had been deposited before the Trial Court, directed 
that the Trial Court would invest the said amount in a Fixed Deposit initially 
for a period of six months in a Nationalized Bank with automatic renewal. 
This Court,further, condoned the delay, issued notices to the respondents 
and further stayed the impugned judgment.
14. Before proceeding to consider the submissions, it would be 
appropriate to reproduce Order XVII Rule 2 CPC, which reads as follows:
“2. Procedure if parties fail to appear on day ﬁ xed. - 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 ﬁ t.
146
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
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.”
15. It would also be relevant to reproduce Order IX Rule 13 which reads 
as follows:
“Setting aside decree exparte against defendant-In any case in which a 
decree is passed ex-parte against a defendant, he may apply to the Court by 
which the decree was passed for an order to set it aside; and if he satisﬁ es 
the Court that the summons was not duly served, or that he was prevented 
by any suﬃ  cient cause from appearing when the suit was called on for 
hearing, the Court shall make an order setting aside the decree as against 
him upon such terms as to costs, payment into Court or otherwise as it 
thinks ﬁ t, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set 
aside as against such defendant only it may be set aside as against all or 
any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte
merely on the ground that there has been an irregularity in the service 
of summons, if it is satisﬁ ed that the defendant had notice of the date of 
hearing and had suﬃ  cient time to appear and answer the plaintiﬀ s claim.
Explanation- Where there has been an appeal against a decree passed 
ex parte under this rule, and the appeal has been disposal of on any 
ground other than the ground that the appellant has withdrawn the 
appeal, no application shall lie under this rule of setting aside the 
ex parte decree.”
16. A plain reading of Order IX Rule 13 makes it apparent that where 
in a case, a decree is passed ex parte against defendant, a party may apply to 
the Court for setting aside the same for reasons satisfying the Court regarding 
non-appearance.
17. Coming to Order XVII Rule 2 CPC, it would be apparent that if 
the parties or any one of them failed to appear on a day to which the hearing 
of the suit is adjourned, the Court may proceed to dispose of the suit in one
147
of the modes directed in that behalf by Order IX or make such other order 
as it deems ﬁ t. 
18. In the present case, the defendants did not appear on 04.12.2004, 
nor their counsel appeared as he had already withdrawn hisVakalatnama 
by a written request. The Trial Court directed for the suit to proceed under 
Order XVII Rule 2 CPC against the defendants. The eﬀ ect of the order dated 
04.12.2004 was that the Trial Court could have proceeded to dispose of the 
suit in one of the modes directed in that behalf by Order IX CPC. Coming 
back to Order IX CPC, it is to be noticed that under Rule 6 thereof where 
summons are duly served and the defendant does not appear when the suit 
is called on for hearing, then the Court may make an order that the suit be 
heard ex parte. This is in fact the procedure adopted by the Trial Court in the 
present case. Accordingly, after the evidence of the plaintiﬀ  was concluded 
and the defendant continued to remain absent, the Trial Court decreed the 
suit ex parte, vide judgment dated 29.01.2005. The operative portion thereof 
clearly mentions that the suit is decreed ex parte.
19. Now coming to the explanation, what is stated therein is that 
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 would be at liberty to proceed 
with the case as if such party were present. Two phrases are
important in 
the explanation “any party” and “such party”. “Any party” refers to the 
party which has led evidence or substantial evidence and “such party” refers 
to that very party which has led evidence or substantial evidence. What is 
discernible is that under Order XVII Rule 2, the Court would proceed to pass 
orders with respect to any of the parties being absent or both the parties being 
absent. Whereas the explanation is conﬁ ned to record the presence of that 
party and that party alone, which has led evidence or substantial evidence 
and has thereafter failed to appear. In the present case, admittedly the suit 
was at the stage of plaintiﬀ ’s evidence as is apparent from the order dated 
04.12.2004. The evidence of the defendants had not even started and the 
defendants’ counsel had not even cross-examined the plaintiﬀ ’s evidence.
20. The explanation in the present case could have been invoked 
only if the plaintiﬀ , after adducing his evidence or substantial evidence, 
failed to appear, the Court could have recorded his presence while 
Y. P. LELE v. MAHARASHTRA STATE ELECTRICITY 
DISTRIBUTION CO. LTD. [VIKRAM NATH, J.]
148
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
disposing of the suit. But once the defendant had not led any evidence at all, 
the explanation could not be invoked as against the defendant/appellant. The 
High Court committed an error in applying the explanation to Order XVII 
Rule 2 CPC and based upon it holding that an application under Order IX 
Rule 13 CPC would not be maintainable as the presence of the defendant 
would be deemed to be recorded at the time of disposal of the suit. 
21. As a matter of fact, once the counsel had withdrawn his 
Vakalatnama, in normal course, the Trial Court ought to have issued 
notice to the defendants to engage another counsel, which it did not do 
and proceeded ex parte. The Trial Court committed an error in doing 
so. Further, the Trial Court, in its wisdom and discretion having allowed 
the application under Order IX Rule 13 CPC, the High Court ought to 
have refrained itself from interfering with an order which advanced the 
cause of justice by aﬀ ording opportunities to both the parties so that the 
suit could be decided on merits. 
22. For all the reasons recorded above, we are unable to uphold the 
impugned order of the High Court. The appeal is allowed. The impugned 
order of the High Court is set aside. The Trial Court will proceed to decide 
the Special Civil Suit on its own merits, after giving due opportunities 
to the parties and strictly proceed in accordance with law.
23. Once the ex parte decree has been set aside, the
amount of 
50% deposited by the appellant needs to be suitably accounted for. It 
is true that under Order IX Rule 13 CPC, the Court,while allowing 
the application, could impose such terms and conditions as it deems 
ﬁ t and this being a money decree, the Trial Court could have required 
the appellant to deposit some amount. The appellant is one of the ﬁ ve 
Directors of the defendant no.1. Although the relief claimed was for joint 
and several liability of each of the Directors, in our view the deposit 
of 50% at the hands of appellant above would be too excessive. We 
accordingly provide that the amount deposited by the appellant under 
the order of this Court, which is lying in the Trial Court, may be adjusted 
as follows:
(i) 
20% of the suit claim, along with interest accrued thereon, may 
be retained by the Trial Court and may continue to deposit the 
same in the Fixed Deposit initially for a period of six months,

149
renewable on an automatic basis, till further orders are passed 
in that regard, depending upon the outcome of the suit;
(ii). 
Whereas 30%, along with accrued interest thereon, may be 
returned to the appellant within four weeks of the date of ﬁ ling 
of this order before the Trial Court along with an application 
for return of amount as directed above. 
24. No order as to costs.
25. Pending application, if any, stand disposed of.
Headnotes prepared by:
Appeal allowed.
Ankit Gyan
Y. P. LELE v. MAHARASHTRA STATE ELECTRICITY 
DISTRIBUTION CO. LTD. [VIKRAM NATH, J.]