B. JANAKIRAMAIAH CHETTY versus A.K. PARTHASARTHI AND ORS.

Citation: [2003] 3 S.C.R. 369 · Decided: 03-04-2003 · Supreme Court of India · Bench: SHIVARAJ V. PATIL · Disposal: Dismissed
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Judgment (excerpt)

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B. JANAKIRAMAIAH CHETTY 
v. 
A.K. PARTHASARTHI AND ORS. 
APRIL 3, 2003 
[SHIVARAJ V. PATIL AND ARIJIT PASA'YAT, JJ.] 
Civil Procedure Code, 1908: 
Order JX and Order XVJJ, Rule 2 and Explanation thereunder: 
Suit-Hearing of-Absence of Party/Parties-Effect of-Held, Court has 
been conferred with discretionary power which is permissive and not mandatory 
to be exercised in the circumstances mentioned therein-When evidence/ 
substantial portion of evidence has been recorded earlier, the Court may 
A 
B 
c 
dispose of the matter as if party was present/deemed to be present. 
D 
Order XVJJ Rules 2 and 3: 
Suit-Hearing of-Absence of Party/parties- Applicability of-
Distinction between-Rule 2 and Rule 3-Discussed. 
Words & Phrases: 
'Where the evidence or substantial portion of the evidence of a party'-
Meaning of in the context of Explanation to Rule 2 Order XVJJ C. P. C., 1908. 
E 
The main issue which arose in the instant case pertains to the scope F 
and ambit of Explanation to Order XVII Rule 2 of the Civil Procedure 
Code, 1908. 
It was contended for the appellant that the High Court did not take 
into consideration the situational distinction between Order XVII Rule 2 
and the Explanation to Rule 2; and that in view of the explanation the G 
case could not have been proceeded cx-parte. 
Dismissing the appeals, the Court 
HELD: I. I. Explanation to Rule 2 Order XVII C. P. C. permits the 
H 
369 
370 
SUPREME COURT REPORTS 
[2003] 3 S.C.R. 
A Court in its discretion to proceed with a case where substantial portion 
of 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. As 
the provision itself shows, discretionary power given to the Court has to 
be exercised in given circumstances. For application of the provision, the 
B Court has to satisfy itself that (a) substantial portion of the evidence of 
any party has been already recorded; (b) such party has failed to appear 
on any day and (c) the day is one to which the hearing of the suit is 
adjourned. Rule 2 permits the Court to adopt any of the modes provided 
in Order IX or to make such order as it thinks fit when on any day to 
which the hearing of the suit is adjourned, the parties or any of them fail 
C to appear. The Explanation is in the nature of an exception to the general 
power given under the Rule, conferring discretion on the Court to act 
under specified circumstance. The crucial words in the Explanation are 
'proceed with the case'. Therefore, an the facts it has to be seen in each 
case as to whether the Explanation was applied by the Court or not. 
D 
13-73-F-G; 374-BI 
1.2. Under Order IX Ruic 3 the Court may make an order directing 
that the suit be dismissed when neither party appears when the suit is 
called on for hearing. (374-AI 
1.3. Under Order XVII Rule 3(b), the only course open to the Court 
E is to proceed under Ruic 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 
F 2 and 3 operate in different and distinct sets of circumstances. Combined 
effect of Explanation to Rule 2 and Rule 3 is that a discretion 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. 1374-C-D-E-FI 
G 
1.4. The crucial expression in the Explanation is "where the evidence 
or a substantial portion of the evidence of a party". It obviously means 
that the evidence on record is sufficient to substantiate the absentee party's 
stand and for disposal of the suit. The absentee party is deemed to be 
present for this obvious purpose. The Court while acting under the 
H Explanation may proceed with the case if that prima facie is the position. 
--.. 
B.J. Cl-IETTY v. A.K. PARTHASARTl-11 (ARIJ!T PASA Y AT, J.] 
371 
The Court has to be satisfied on the facts of each case about this requisite A 
aspect. It would also be 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 or applying the 
Explanation is without any purpose. If the evidence on record is suf
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