Sri Mahaveer Waste Factory and Others vs Swadeshi Cotton Mills and Others

Govardhan, J.—Defendant 1 to 5 are the appellants. The suit is for recovery of a sum of Rs. 34,979-03 as damages on various hoards. The

defendants had resisted the same under various grounds and a counter claim has also been made against the plaintiff for a sum of Rs. 13,000/-.

During the trial, after the evidence of P.W.1 on behalf of the plaintiff has been recorded, the defendants have not let in any evidence. Inspite of

opportunity given to the defendants they did not adduce any evidence. The trial Court has, therefore, granted a decree in favour of the plaintiff for

the suit claim under Order 17 Rule 3 of Civil Procedure Code. Since the question for consideration in this appeal is whether the decreeing of the

suit under Order 17 Rule 3 C.P.C., is valid or not, the averments in the plaint as well as the written statement made by the respective parties are

not narrated in this Judgment.

The suit has been decreed under Order 17, Rule 3, C.P.C., by the trial court in favour of the plaintiff, only on the ground that the defendants

have not let in any evidence on their behalf, inspite of opportunities being given to them. The appellants contend that the trial court should have set

the defendants ex parte and an ex parte decree alone should have been passed and passing a decree under Order 17, Rule 3, C.P.C., is not

proper. Learned counsel appearing for the appellants has referred to certain decisions on this aspect.

In the case of Prativadi Hhayankara Pichamma alias Mangamma v. Kamisetti Sreeramulu and Ors. 34 M.L.J. 24, the Full Bench of this Court

has held that Rules 2 and 3 of Order 17 of C.P.C. are independent and where the requisites of Rule 2 arc satisfied that rule and not rule 3 should

be applied, although in addition to the absence of the party circumstances exist which would satisfy the requirements of Rule 3. The Full Bench has

further held that Rule 3 applies only to cases where the parties arc present and have not satisfied the court as to the existence of any adequate

reason for their not having done what they were directed to do. In the case on hand, after the examination of P.W. 1 on behalf of the plaintiff, the

defendants did not appear and did not let in any evidence to substantiate their version. Therefore, as per the above decision, it cannot be stated

that Rule 3 of Order 17 C.P.C. applies to the case on hand.

In the case of Prakash Chander Manchanda and Another Vs. Janki Manchanda, , the Supreme Court has held that if on a date fixed, one of the

parties to the suit remain absent and for that party no evidence has been examined up to that date the Court has no option but to proceed to

dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 of the Civil P.C. In the case on hand

the defendants remaining absent and no evidence having been let in on behalf of the defendants on the date fixed for such examination, as per the

decision of the Supreme Court, referred above, only Order 17 Rule 2 C.P.C, can be invoked and not Order 17 Rule 3 C.P.C. The same view has

been expressed by a Division Bench of our High Court in the case of Soopi Haji and Four Ors. v. R.M. Ramanathan Chettiar, 1993 (2) L.W.

146, wherein it has been held that if the parties arc, or any of them is, absent, proceed under Rule 2, in Rule 3 of Order 17, introduced by 1976

Amendment, effect of in all cases of absence of party, the order has to be passed under Rule 2 and not under Rule 3, which is not attracted at all,

in the case of absence of a party. The Division Bench of this Court, in the above decision has considered the provisions of Order 17, Rules 2 and

3 after the introduction of 1976 Amendment and has given the above ruling.

The same view has been expressed by a learned Single Judge of this Court in the case of V. Ramakrishnan v. K. Raju 1990 (2) M.L.J. 64. The

learned Judge has observed that as per Rule 2 of Order 17, CPC if the parties or any of them fail to appear, the court may produced to dispose of

the suit in one of the modes directed in that behalf by Order 9 of make such order as it thinks fit. The expression ''such other order as it thinks fit''

does not mean that the court can decide the case on merits. This decision has also held that in cases where one of the parties do not appear on the

date of hearing and let in evidence, the court can dispose the matter, invoking the provisions of Order 9 and not Order 17 C.P.C, When we

consider the case on hand in the light of these decisions, we have to necessarily come to the conclusion that the Judgment and decree passed by

the trial court under Order 17, Rule 3, C.P.C., on the ground that the defendants have failed to let in evidence on the date fixed for the evidence of

the defendants cannot be sustained and appeal has to be allowed - but that does not mean that the suit is to be dismissed. I am of the opinion that

the Judgment and decree of the trial court has to be set aside and the matter has to be remitted to the trial court for fresh disposal according to law,

after giving opportunity to both sides to let in any further evidence, they may deem fit.

In the result, the appeal is allowed, setting aside the Judgment and decree of the trial Court. The matter is remitted to the trial court to dispose

the suit according to law, after giving opportunity to both sides to let in further evidence. In the circumstances, no costs.