G. RATNA RAJ (D) BY LRS. versus SRI MUTHUKUMARASAMY PERMANENT FUND LTD. & ANR.

Citation: [2019] 1 S.C.R. 845 · Decided: 01-02-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Dismissed

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Judgment (excerpt)

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845
[2019] 1 S.C.R. 845
G. RATNA RAJ (D) BY LRS.
v.
SRI MUTHUKUMARASAMY PERMANENT
FUND LTD. & ANR.
(Civil Appeal Nos. 2582-2583 of  2011)
FEBRUARY 01, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
Code of Civil Procedure, 1908 – Or.XVII, r.2, Explanation –
Applicability of – In order to attract Explanation to Or.XVII, r.2, the
party which has led evidence and 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 treat “such party” as “present”
on that day and is accordingly empowered to proceed in the suit –
In the instant case, the defendants were proceeded ex parte – It was
defendant who did not lead the evidence and therefore, Explanation
to Or.XVII, r.2 would not apply – Therefore, 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 Or.XVII, r.3 (b) r/w
Or.XVII, r.2 for disposal of the suit by taking recourse to one of the
modes directed in that behalf by Or.IX of the Code – Trial court
(Single Judge) had proceeded to hear the suit ex parte by taking
recourse to Or.IX, r.6 (a) in terms of Or.XVII, r.2  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, trial court passed the preliminary decree – Such
decree was an “ex parte decree” within the meaning of Or.IX, r.6 (a)
r/w Or.IX, r.13 of the Code and, therefore, could only be set aside
under Or.IX, r.13 on making out a sufficient ground by the
defendants – Division Bench of High Court was justified in allowing
the applications filed by defendant no.1 under Or.IX, r.13 and in
consequence was justified in setting aside the preliminary decree
treating the said decree as ‘ex parte decree’ – Interference with the
said order is not called for – Trial court is directed to decide the
suit on merits in accordance with law – Ex parte decree – Party,
appearance of.
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SUPREME COURT REPORTS
[2019] 1 S.C.R.
Dismissing the appeals, the Court
HELD: In the instant case, the plaintiff’s  evidence was
recorded and his case was also closed. 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 such a situation arising
in the case, the case at hand would not fall under Explanation to
Order XVII Rule 2 because in order to attract the Explanation,
“such party” 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 treat “such party” as
“present” on that day and is accordingly empowered to proceed
in the suit.  If the plaintiff had remained absent and was found to
have led evidence, the Court could have invoked its powers under
Explanation to Order XVII Rule 2 treating the plaintiff as
“present” for passing appropriate orders. Such is, however,  not
the case here. 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
proceeded ex parte, the Court could have invoked its powers
under Explanation to Order XVII 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. 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 XVII Rule 3 (b) read with Order XVII Rule 2 for disposal
of the suit by taking recourse to one of the modes directed in
that behalf by Order IX or could have made any other order as it
thinks fit.  The Trial Court (Single Judge) is directed to decide
the Original Suit  on merits in accordance with law. [Paras 23-24,
26-28, 33][853-A-C, D-F; 854-F]
B. Janakiramaiah Chetty v. A.K. Parthasarthi & Ors.
(2003) 5 SCC 641 : [2003] 3 SCR 369 – relied on.
Case Law Reference
[2003] 3 SCR 369
relied on
Para 22
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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
2582-2583 of 2011.
From the Judgment and Order dated 11.01.2008 of the High Court
of Judicature at  Madras in OSA Nos. 299 & 300 of 2006.
Ambhoj Kumar Sinha, Ashwariya Sinha, Advs. for th

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