[Order 17 Rule 3 CPC] Suit Can Be Decided On Merit If There Is Some Material, Though It May Not Be Strictly "Evidence" : Supreme Court

A Bench comprising Justice Sudhanshu Dhulia and Justice JB Pardiwala was deciding a case that emanated from a eviction petition filed under the Delhi Rent Control Act, 1958. An application was filed under Order 7 Rule 11 alleging the issue that there exists no landlord-tenant relationship as had been established in a previous round of litigation. The Additional Rent Controller refused to accept that the petition was barred by res judicata. Upon rejection of the application a civil revision was filed before the Delhi High Court that allowed the Order 7 Rule 11 application.

Factual Background

The father of the appellants had inducted the respondents as tenants. The respondents defaulted in paying rent. Subsequently the father of the appellants served a demand notice on the respondents claiming arrears of rent. Since the arrears were not cleared, an eviction petition was filed against the tenants under the Delhi Rent Control Act, 1958. During the course of the proceedings, the respondents had filed their written statement denying the landlord-tenant relationship. Even though several opportunities were granted to the plaintiffs (appellants) to adduce evidence to establish the said relationship they did not respond. In view of the same the Rent Controller closed the petition. Neither any appeal was filed against the order of the Rent Controller, nor was any fresh eviction petition filed by the father of the appellants. After the father’s demise, the appellants claiming as successors in interest filed an eviction petition. A written statement was filed by the respondent wherein it was submitted that the predecessor in interest had failed to prove the landlord-tenant relationship. By filing an application under Order 7 Rule 11 of the CPC seeking rejection of the plaint, the respondents argued that the issue cannot be reopened in a second eviction petition as it is barred by the principles of res judicata. The Additional Rent Controller refused to reject the plaint noting that the second eviction petition filed by the appellants under Section 14(1)(a) of the Delhi Rent Control Act, 1958 was based on a fresh notice and on a separate cause of action. It was also stated by the Additional Rent Controller that in the previous proceedings there was no finding on merits regarding the landlord-tenant relationship between the parties. The order of the Additional Rent Controller was challenged before the Delhi High Court by the respondents. The High Court rejected the plaint on the basis that it was in the teeth of the principles of res judicata. It had taken a view that the first eviction petition was dismissed under Order 17 Rule 3 CPC [court may proceed notwithstanding either party fails to produce evidence, etc] and therefore the finding recorded with respect to the landlord-tenant relationship can be said to be one on merit.

Analysis by the Supreme Court

At the outset the Court referred to the decisions wherein it had dealt with the issue - whether res judicata can be the basis or ground for rejection of the plaint and summarised the guiding principle for deciding an application under Order 7 Rule 11(d) of the CPC [rejection of plaint where the suit appears from the statement in the plaint to be barred by law]. On the issue pertaining to the dismissal of the first eviction suit on Order 17, Rule 3 CPC, the Court noted that the provision contemplates that where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, (a) if the parties are present, proceed to decide the suit forthwith, or (b) if the parties are, or any of them is, absent, proceed under Rule 2. The course under Order 17 Rule 3 can only be adopted when the absentee party has already adduced evidence or a substantial part of it. Otherwise, the Court has to proceed under Rule 2. Now, Order 17 Rule 2 provides that where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 CPC or make such other order as it thinks fit. Both the provisions are discretions conferred on the courts. The Explanation appended to Order 17 Rule 2 of the CPC provides 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 may, in its discretion, proceed with the case as if such party was present.

Placing reliance on a catena of judgments, the Court noted that in exercise of power under Order 17 Rule 3 the Court can decide a suit on merits for the default of a party. It added that the said power being drastic in nature ought to be applied sparingly. The Court observed that in order to decide the suit on merit, the mere existence of the conditions in Order 17 Rule 3 alone is not sufficient, if there is no material for deciding on merits. However, it clarified that the material need not be one technically interpreted as evidence; it could be decided on the basis of pleadings, documents and burden of proof. The Court noted that if the plaintiff fails to discharge the burden placed on them despite the opportunity afforded to him the case cannot be adjourned for their evidence ad infinitum and the Court at some stage or the other has to decide it for want of evidence. The Court ought to indicate without ambiguity whether it is exercising powers under Order 17 Rule 3 or not. Thus, it is within the discretion of the Court to proceed under Rule 3 even in the absence of evidence but such discretion is limited only in cases where a party which is opposing has led some evidence or has examined substantial part.

In the present case, the Court found that the order passed in the first proceedings was not a final disposal of the suit; it was an order merely stopping the proceedings. It held that the said order was not the final decision of the suit under Order 9 Rule 8 or Order 17 Rule 3 CPC.

Case details

Prem Kishore And Ors. v. Brahm Prakash And Ors.| 2023 LiveLaw (SC) 266 |Civil Appeal No. 1948 of 2013| 29th March, 2023| Justice Sudhanshu Dhulia and Justice JB Pardiwala