PRAKASH CHANDER MANCHANDA AND ANR. versus SMT. JANKI MANCHANDA

Citation: [1987] 1 S.C.R. 288 · Decided: 18-11-1986 · Supreme Court of India · Bench: O. CHINNAPPA REDDY · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
PRAKASH CHANDER MANCHANDA AND ANR. · 
v. 
SMT. JANK! MANCHANDA 
NOVEMBER 18, 1986 
[O. CHlNNAPPA REDDY AND G.L. OZA, Jl] 
Civil procedure Code, 1908-0rder 9 Rule 13 and Order 17 Rule 
2 and 3-Plaintiff's evidence over-Defendant's evidence to begin-:-
,
Neither defence witnesses nor any one present on behalf of defendant-
Procedure to be followed by Court-Ex-parte decree-Setting aside of. 1 
. 
C 
In a snit in which the appellant was defendant, after the plaintiff's p 
evidence was over, the defendant was to begin his evidence on 24th 
January, 1985. As no witness was present, at the request of defendant's 
counsel the case was adjourned to 7th May, 1985. On that day, the case 
was transferred to another Court and the transferee Court ordered the 
D case to be put up on 21st August, 1985. It being a holiday, the case was 
put up on 22nd August, 1985 when it was adjourned to 30th October, 
1985. On that day, no one was present for the defendant. The case was 
again taken up at I p.m. but the situation remained the same. Since 
none of the witnesses for defendant was also present, evidence was 
closed and case fixed for arguments for !st November. 1985. On this 
E date also nobody appeared for the defendant and the case was 
adjourned to 8th November, 1985. On that day, arguments of the 
plaintiff's counsel were heard and as none was present for defendant, 
the case was fixed for judgment on !Ith November, 1985. On this date 
also nobody was present for defendant and since judgment was not 
ready it was postponed to 21st November, 1985. On this date the judg-
F 
ment was dictated, pronounced and decree was ordered to be prepared. _. 
The defendant filed an application under Order 9 Rule 13 of the ./ ~ 
Code of Civil Procedure, 1908 for setting aside ex-parte decree urging 
'
that he came to know about decree on 18th January, 1986 when the 
plaintiff came to take possession. The trial Court dismissed the applica-
G tion holding that it was not maintainable because the case was disposed 
of not in accordance with Order 17 Rule 2, but in accordance with 
Order 17 Rule 3. An application for review was also dismissed by the 
Trial Court. The first appeal too was summarily dismissed by the High 
Court. 
H 
Allowing the appeal, 
288 
P.C. MANCHANDA v. SMT. J. MANCHANDA 
289 
Held: I. The order passed by the High Court and also the trial 
A 
Court rejecting the application of the appellant under Order 9 Rule I3 
of the Civil Procedure Code 1908 are set aside and the trial ·court is 
directed to dispose of the application in accordance with law. [294C] 
2. In cases where a party is absent, only course is as mentioned in 
Order !7(3)(h) to proceed undet Rule 2. The language of amended Rule 
2 also lays down that if any one of the parties fails fo appear, the Court 
has to proceed to dispose of the suit in one of the modes directed under 
Order 9. The Explanation to Rule 2 gives a discretion to the Court to 
0 
proceed under Rule 3 even if a party is absent. but that discretion is 
"1111 limited only in case where a partv which is absent has led some evidence 
. 
or has examined substantial part of their evidence. Therefore, if on a 
date fixed, one of the parties remains absent and for that party no 
· evidence has been examined upto 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 ml)des prescribed under Order 9 of the Code of Civil 
Procedure. After this amendment in Order 17 Rules 2 and 3 in 1976 
there remains no doubt, and therefore, there is no possibility of any 
controversy. [292H-293C] 
B 
c 
D 
3. In the present case, on 30th October 1985 when the case was 
called nobody was present for the defendant, and till that date .the 
plaintiff's evidence had been recorded bot no evidence for defendant 
was recorded. The defendant was only to begin on this date or an earlier 
E 
date when the case was adjourned. It is, therefore, clear that upto 30th 
October 1985 when the trial Court dosed the case of defendant there 
was no evidence on record on his behalf. Therefore, the Explanation to ' 
Order 17 Rule 2 was not applicable at all. Apparently when the de-
r 
fendant was absent Order 17 Rule 2 only permitted the Court to pro-
\ ceed to dispose of the matter "in any one of the modes provided under 
F 
Order 9. [2930-E] 
· 
. 
4. Order 17 Rule 3 as it stands was.not applicable to the facts of 
this case as admittedly on the date when the evidenc

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