IMPORTANT POINT
In order to determine whether the remedy under Order IX CPC is lost or not what is necessary to be seen is whether in the first instance the Court had resorted to the Explanation of Rule 2 of Order 17 CPC.

Headnote:Civil Procedure Code, 1908-Order 17 Rule 2 Explanation and Rule 3(b)-Procedure if parties fail to appear on fixed date-Order IX Rule 13-Remedy to set aside ex-parte decree-Defendant called-Absent-Suit decreed-Whether remedy under Order IX Rule 13 will be attracted? (Yes)-Can it be denied on invocation of Explanation to Order 17 Rule 2? (No, in the facts of the case)-Ambit and scope of Explanation to Order 17 Rule 2 of CPC explained-Appeal dismissed.
Held : This (i.e. the judgment of the Court) clearly has imprints of an ex parte adjudication and not of a decision on merits. There is not even any indication as to what evidence was evaluated and/or whether the merits were tested. The matter can be looked at from another angle. In the absence of any indication as regards merits of the case, preferring an appeal will be really inconsequential. It is more so when no definite ground of appeal can be pressed into service, except making generalized challenges. It certainly cannot be the legislative intent. We find no infirmity in the impugned judgment to warrant interference. The appeals are dismissed but with no order as to costs. (Paras 12, 13 and 14)

JUDGMENT

Arijit Pasayat, J.-Leave granted.

2. The scope and ambit of Explanation to Order XVII Rule 2 of the Code of Civil procedure, 1908 (in short the Code ) falls for determination in these appeals.

3. As the issues are primarily legal, detailed reference to the factual aspects would be unnecessary. Factual background in a nutshell is as follows:

Alleging that the appellant, a leading businessman, was subjected to torture by various police officials (the respondents herein), a writ petition was filed before the Andhra Pradesh High Court by appellant s son who alleged that he had no knowledge about the whereabouts of his father; who was tortured by police officials. The writ petition was disposed of by the High Court granting liberty to the petitioner to take such legal steps against the respondents for his alleged wrongful confinement. The suit O.S. No. 117/1992 was filed before the Subordinate Judge, Chittoor claiming damages, on 15.4.1992. Written statement was filed on 12.4.1993. On 8.7.1997 the evidence on the petitioner s side was closed. On 15.11. 1998 the evidence on behalf of the respondents was also closed and the matter was posted for arguments. In the meantime, applications were filed by respondents for adducing additional evidence. Those were posted for filing counter affidavits and hearing. On 23.6.1999 the original suit was called for final hearing. As the respondents were not represented, a decree was passed. Applications were filed under Order IX Rule 13 of the Code by the respondents for setting aside the decree and order dated 23.6.1999. Their stand was that they were engaged in official duty and were unable to attend the Court. Petitioner took the stand about non-applicability of Order IX Rule 13 of the Code to the facts of the case, on the ground that the matter was decided on merits and not ex parte. The stand was rejected and the applications were allowed. Aggrieved by the order passed by the Senior Civil Judge (as the Subordinate Judge is now presently described), two revision petitions were filed before the Andhra Pradesh High Court and by the impugned order it dismissed the two civil revision petitions.

4. In support of the appeals, learned counsel for the appellant submitted that the situational distinction between Order XVII Rule 2 and the Explanation to Rule 2 has not been kept in view by the High Court. It was highlighted that the Explanation applies to a case where the Court proceeds to deal with a matter as if the parties are present. Order IX Rule 13 is applicable to a case where it has proceeded ex-parte. If the Explanation is applied, then the case cannot be treated to be one which has proceeded ex-parte and, therefore, application of Order IX Rule 13 is ruled out.

5. Per contra, learned counsel for the respondents has submitted that the Subordinate Judge and the High Court have rightly taken note of the fact that the matter was proceeded ex-parte in the absence of the respondents and, therefore, Order IX Rule 13 is clearly applicable.

6. Since the controversy revolves round Order XVII Rule 2 including its Explanation, the same is quoted below, along with Rule 3 thereof, since it has relevance:

"Order XVII Rule 2: Procedure if parties fail to appear on day fixed.- Where, on any day to which the hearing of the suit is adjourned, the parties of 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 IX or make such order as it thinks fit.

Explanation: 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 were present.

Rule 3: Court may proceed notwithstanding either party fails to produce evidence etc.-Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance

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2003 Supreme(SC) 409

IMPORTANT POINTIn order to determine whether the remedy under Order IX CPC is lost or not what is necessary to be seen is whether in the first instance the Court had resorted to the Explanation of Rule 2 of Order 17 CPC.

IMPORTANT POINT
In order to determine whether the remedy under Order IX CPC is lost or not what is necessary to be seen is whether in the first instance the Court had resorted to the Explanation of Rule 2 of Order 17 CPC.