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IN THE HIGH COURT OF MARAS
J Wallis
Prativadi Bhayankaram Pichamma
Versus
Kamisetti Sreeramulu And Ors.
Decided On : 21 November, 1917
Chandramathi Ammal - Civil Procedure Code - Order IX, Rule 6(1), Order XVII, Rule 2, Order IX, Rule 13 - The judgment discusses the scope of Rules 2 and 3 of Order XVII of the Civil Procedure Code, emphasizing the application of these rules in cases of absence of parties and failure to do what was ordered. It highlights the principles of ex parte proceedings, setting aside decrees, and the discretion of the Court in deciding the suit forthwith.
Fact of the Case:
The judgment discusses the scope of Rules 2 and 3 of Order XVII of the Civil Procedure Code, emphasizing the application of these rules in cases of absence of parties and failure to do what was ordered.
Finding of the Court:
The Court analyzed the provisions of Order XVII, Rules 2 and 3, and concluded that Rule 3 applies to cases where the parties are present and have not satisfied the Court as to the existence of any adequate reason for their non-compliance, while Rule 2 applies to cases of absence of parties.
Issues: The main issue was the interpretation and application of Rules 2 and 3 of Order XVII of the Civil Procedure Code in cases of absence of parties and failure to comply with court orders.
Ratio Decidendi: The Court held that Rule 3 applies only to cases where the parties are present and have not satisfied the Court as to the existence of any adequate reason for their non-compliance, while Rule 2 applies to cases of absence of parties.
Final Decision: The Court decided that the principles established in Chandramathi Ammal v. Narayanasami Aiyar (1909) I.L.R. 33 M. 241 should be followed, emphasizing the correct application of Rules 2 and 3 of Order XVII of the Civil Procedure Code.
John Wallis, C.J.
1. I am of opinion that Chandramathi Ammal v. Narayanasami Aiyar (1909) I.L.R. 33 M. 241 to which I was a party was rightly decided. As the question is very fully dealt in the opinion of my learned brother, I shall merely state the conclusions at which I have arrived on further consideration. Under the Code, where the plaintiff appears and the defendant does not appear either on the day fixed for the first hearing [Order IX, Rule 6(1)] or on any day to which the hearing of the suit is adjourned [Order XVII, Rule 2 read with Order IX. Rule 6(1)], the Court, if it is proved that the summons was duly served, may proceed ex parte. In either case, where the Court has disposed of the case ex parte and passed a decree against the absent defendant, he may, under Order IX, Rule 13, move to set aside the decree on the ground that he was prevented by any sufficient cause from appearing when the suit was called on. When a case is called on and the defendant is absent, and the Court resolves to proceed against him ex parte, there is nothing, I am now of opinion, to prevent the Court from applying the provisions of Order XVII, Rule 3 and disposing of the suit notwithstanding the defendants failure to do what he had been granted time to do, but that disposal will be none the less both in fact and in law ex parte, and the decree will be liable to be set aside by the defendant under Order IX Rule 13. If the ex parte decree is set aside and the case restored and the defendant appears, it will still be open to the Court to apply the provisions of Order XVII, Rule 3 after hearing what the defendant has to say in explanation of his failure to do what he had been given time to do. There is I think no conflict at all between the two rules, and each may be fully applied on this construction at the proper stage of the case. In so far as we laid down in Chandramathi Ammal v. Narayanasami Aiyar (1909) I.L.R. 33 M. 241, that the two rules must be read as mutually exclusive, I think we went too far.
2. With great respect I am unable to agree with any of the rulings or observations in the cases cited that take a different view.
Sadasiva Aiyar, J.
3. I have nothing to add to the judgment which my learned brother Kumaraswami Sastri, J., is about to pronounce and I entirely concur in it.
Kumaraswami Sastri, J.
4. The question raised by this reference relates to the scope of Rules 2 and 3 of Order XVII of the Civil Procedure Code. Rule 1 empowers the Court on proper cause being shown to grant time to the parties at their instance and to adjourn the suit on such terms as to costs as it thinks fit. Rule 2 provides that if the parties or any of them fail to appear on the adjourned date; the Court may dispose of the suit in one of the modes directed in that behalf in Order IX or make such other order as it thinks fit. Order IX relates to the procedure to be followed on the date fixed in the summons for the parties to appear and provides for the consequence of non-appearance. Rule 3 provides that the Court may dismiss the suit if both parties fail to appear. Where the plaintiff appears and not the defendant, Rule 6 empowers the Court to decide the suit ex parte if the summons has been duly served on the defendant in time to enable him to appear. Where the defendant appears and not the plaintiff, Rule 8 directs that the Court should dismiss the suit wholly or partially if the claim or any part is not admitted. Rule 9 entitles the plaintiff to have the dismissal set aside if he satisfies the Court that he had sufficient cause for non-appearance. Rules 7 and 13 enable the defendant who failed to appear to set aside the exparte order or decree against him on shewing proper cause for his non-appearance. Rule 3 of Order XVII empowers the Court to decide the suit forthwith not with standing the failure of either party to whom time is granted to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary for th
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