Y. P. LELE versus MAHARASHTRA STATE ELECTRICITY DISTRIBUTION COMPANY LTD. & ORS.

Citation: [2023] 11 S.C.R. 141 · Decided: 16-08-2023 · Supreme Court of India · Bench: VIKRAM NATH · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[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 a
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