Order XVII Rule 2 CPC -Court Can Proceed Only Against An Absent Party Whose Evidence Has Been Substantially Recorded : Supreme Court

The Supreme Court observed that, under explanation to Order XVII Rule 2 of the Code of Civil Procedure, the court can record the presence of that party alone who has led evidence or substantial evidence and thereafter failed to appear.

"Under Order XVII Rule 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 confined to record the presence of that party and that party alone, which has led evidence or substantial evidence and has thereafter failed to appear.", the bench of Justices Vikram Nath and Ahsanuddin Amanullah observed.

Order XVII Rule 2 CPC provides that if the parties or any one of them failed to appear on a day to which the hearing of the suit is adjourned, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it deems fit. 

In the present case, before the Trial Court, the defendants did not appear nor their counsel appeared as he had already withdrawn his Vakalatnama by a written request. The Trial Court directed for the suit to proceed under Order XVII Rule 2 CPC against the defendants. Later an ex parte decree was passed and upon application filed by the defendants the same was set aside. Allowing petition filed by the plaintiff, the Bombay High Court set aside this and the ex parte decree was maintained.

The appellant-defendant contention was that the order passed by the Trial Court was under Order XVII Rule 2 CPC and not under the explanation as the explanation would not be applicable. 

In this regard, the bench referred to Order XVII Rule 2 CPC and said:

"Now coming to the explanation, what is stated therein is that where the evidence or a substantial portion of the 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, the Court would be at liberty to proceed with the case as if such party were present. Two phrases are important in the explanation “any party” and “such party”. “Any party” refers to the party which has led evidence or substantial evidence and “such party” refers to that very party which has led evidence or substantial evidence. What is discernible is that under Order XVII Rule 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 confined to record the presence of that party and that party alone, which has led evidence or substantial evidence and has thereafter failed to appear."

The court noted that the defendant had not led any evidence at all and thus the explanation could not be invoked as against the defendant/appellant.

"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. Further, the Trial Court, in its wisdom and discretion having allowed the application under Order IX Rule 13 CPC, the High Court ought to have refrained itself from interfering with an order which advanced the cause of justice by affording opportunities to both the parties so that the suit could be decided on merits.", the court said while allowing the appeal.

YP Lele vs Maharashtra State Electricity Distribution Company Ltd. | 2023 LiveLaw (SC) 653 | 2023 INSC 732

Code of Civil Procedure, 1908 ; Order XVII Rule 2 - Any party” refers to the party which has led evidence or substantial evidence and “such party” refers to that very party which has led evidence or substantial evidence - Under Order XVII Rule 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 confined 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)

Code of Civil Procedure, 1908 ; Order IX - When the defendant counsel had withdrawn his Vakalatnama, in normal course, the Trial Court ought to have issued notice to the defendants to engage another counsel. (Para 21)

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