The main legal point established in the judgment is the need to balance procedural technicalities with the interests of justice, particularly in cases where the defendant fails to effectively participate in the proceeding.

M.R. Hariharan Nair, J.

The plaintiff in O.S. No. 534/96 of the Second Additional Sub Court, Emakulam, is aggrieved by the order passed in LA. No. 2886/98 filed by the defendant whereby the said application was allowed and the judgment and decree passed in the suit on 17.7.1998 was set aside invoking powers under O. IX R.13 of the Code of Civil Procedure.

2. The learned counsel for the petitioner placing reliance on the decision in Prakash Chander v. Janaki Manchanda (AIR 1987 SC 42) pointed out that O. IX R.13 will have no application in the case where the defendant was physically present at the time when the case was taken up for disposal and that the provision will have application only where the case is decided or taken up for decision in the absence of the defendant. The learned counsel also points out with reference to the facts of this case that on 16.7.1998 both parties were present ready to proceed with the trial of the suit as scheduled as announced in the special list and that protesting against the disallowance of certain questions put to the plaintiff by the defence counsel during cross-examination, he adopted an attitude of non-co-operation with regard to the further proceedings and actually ignored the further proceedings. The counsel also points out that on the unilateral stoppage of cross-examination of the plaintiff by the defence counsel the court called upon the defence to examine the defence witnesses and that there was refusal to do so. Therefore the court proceeded with the suit and on the very next day passed the judgment on the merits. Such decision, according to the learned counsel for .the petitioner, is a decision under O. XVII

R.3{a) of the CPC which can only be appealed against and no petition under O. IX R.13 would lie.

3. The notice issued in the present revision to the respondent - defendant came back with the endorsement "firm locked". Thereafter, substituted service through paper publication was resorted to. Even during hearing today, the respondent has not entered appearance in the case and hence I am constrained to dispose of the matter on hearing the petitioner alone.

4. What is clear from the judgment passed on 17.7. 1998 is that the decision was . rendered on the merits, albeit based on plaintiff's evidence alone. The defence contentions also were examined on the merits with reference to the evidence available before court including that of PW.1. There is nothing to show that the defendant was absent at the time when the case was taken up for trial on 16.7.1998.0. XVIIR. 3(a) of the CPC provides that where there is failure of the party to whom time was granted to adduce evidence or to perform any other act necessary to the further progress of the suit, the court may, "if the parties are present, proceed to decide the suit forthwith" and under R.3(b), if the parties are, or any of them is, absent, proceed under R.2. Under R.2, where on any day of hearing, the parties, or any of them, fail to appear, the court may proceed to dispose of the suit under O. IX or make such other order as it thinks fit. A joint reading of Rr. 2 and 3 makes it clear that resort to 0.17 R.2 invoking the provision in O.XVI1 R.3(b) would be possible only in a case where the party concerned is absent. It is further clear from R.3(a) that if the party is actually present, the court-can proceed to decide the suit forthwith which may be on the merits.

5. The Apex Court had occasion to go into the scope and ambit of the aforesaid provision in Prakash Chander (supra). That was a case where on the date fixed for trial, the defendant remained absent and no evidence was adduced on his behalf. The Court proceeded to dispose of the suit on the merits. Subsequently, an application was filed under Q. IX R.13 of the CPC. The Apex Court held that where a party is absent the only course available is as mentioned in O. XVII R.3(b) to proceed under R.2. In the absence of the defendant, the court will have no option but to proc