1. A money recovery suit arising from a business loan transaction between relatives where an ex parte decree was passed following the defendants' failure to provide evidence. (Para 1 , 3 )
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2026 Supreme(Online)(Ker) 68102
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Soumen Sen, CJ, Syam Kumar V.M., J
SHAFEEQ RAZAK – Appellant
Versus
P.M. ABDUL LAHIR – Respondent
FAO 83/2026
Important Points
When a defendant fails to appear and adduce evidence on the final adjourned date, the court proceeds under Order XVII Rule 2 of the CPC, making an application to set aside the resulting ex parte decree under Order IX Rule 13 maintainable.
Subject
Civil Procedure - Ex Parte Decrees
Act Referred
Code of Civil Procedure, 1908: O.XVII R.3(a), O.IX R.13, O.XVII R.2
Headnote
(A) Code of Civil Procedure, 1908 - Order XVII Rules 2 and 3 and Order IX Rule 13 - Failure to adduce evidence - Maintainability of application to set aside ex parte decree - Where parties fail to appear on the adjourned date and no evidence is recorded on behalf of the defendant, the court is required to proceed under Order XVII Rule 2 and not Rule 3 - Consequently, the court must dispose of the matter in the modes provided under Order IX, making an application under Order IX Rule 13 maintainable. (Paras 8-11)
(B) Order XVII Rule 3(b) - If parties are absent and fail to produce evidence, the court proceeds under Rule 2, which confers discretion on the court to dispose of the suit in any one of the modes prescribed by or under Order IX, thus allowing the aggrieved party to apply under Order IX Rule 13. (Paras 10-11)
Facts of the case:
A dispute arose regarding a business loan transaction between two relatives. After the plaintiff's evidence was closed, the defendants did not adduce any evidence on the date fixed. The trial court subsequently pronounced judgment. The defendants then filed an application under Order IX Rule 13 of the Code of Civil Procedure to set aside the ex parte decree, which was resisted by the plaintiff based on the argument that the disposal was under Order XVII Rule 3(a).
Findings of Court:
The court found that since the defendants did not appear on the adjourned date when the hearing was concluded and the judgment was pronounced, the case fell under the purview of Order XVII Rule 2. Therefore, the application under Order IX Rule 13 was maintainable.
Issues: Whether an application under Order IX Rule 13 of the Code of Civil Procedure is maintainable when the defendants fail to appear and adduce evidence, leading to an ex parte decree.
Ratio Decidendi: When a defendant fails to appear before the court and no evidence is recorded on the day to which the suit was finally adjourned, the court must proceed under Order XVII Rule 2 and not Rule 3. As Rule 3(b) directs the court to proceed under Rule 2 in the absence of parties, the disposal of the suit effectively occurs under Order IX, enabling the defendant to seek setting aside of the decree under Order IX Rule 13.
Result: Appeals allowed.
(B) Order XVII Rule 3(b) - If parties are absent and fail to produce evidence, the court proceeds under Rule 2, which confers discretion on the court to dispose of the suit in any one of the modes prescribed by or under Order IX, thus allowing the aggrieved party to apply under Order IX Rule 13. (Paras 10-11)
Facts of the case:
A dispute arose regarding a business loan transaction between two relatives. After the plaintiff's evidence was closed, the defendants did not adduce any evidence on the date fixed. The trial court subsequently pronounced judgment. The defendants then filed an application under Order IX Rule 13 of the Code of Civil Procedure to set aside the ex parte decree, which was resisted by the plaintiff based on the argument that the disposal was under Order XVII Rule 3(a).
Findings of Court:
The court found that since the defendants did not appear on the adjourned date when the hearing was concluded and the judgment was pronounced, the case fell under the purview of Order XVII Rule 2. Therefore, the application under Order IX Rule 13 was maintainable.
Issues: Whether an application under Order IX Rule 13 of the Code of Civil Procedure is maintainable when the defendants fail to appear and adduce evidence, leading to an ex parte decree.
Ratio Decidendi: When a defendant fails to appear before the court and no evidence is recorded on the day to which the suit was finally adjourned, the court must proceed under Order XVII Rule 2 and not Rule 3. As Rule 3(b) directs the court to proceed under Rule 2 in the absence of parties, the disposal of the suit effectively occurs under Order IX, enabling the defendant to seek setting aside of the decree under Order IX Rule 13.
Result: Appeals allowed.
Legal Category Hierarchy
Advocates:
For the Appellants/Petitioners: Aneesh James, P. Martin Jose, P. Prijith, Thomas P. Kuruvilla, Ajay Ben Jose, Manjunath Menon, Anna Linda Eden, Harikrishnan S., Anavadya Sanil Kumar, Anjali Krishna, Abhinav P. S.
For the Respondents: Dinesh Mathew J. Muricken, Vinod S. Pillai, N.R. Sangeetharaj, Nayana Varghese, Jerry Peter
For the Appellants/Petitioners: Aneesh James, P. Martin Jose, P. Prijith, Thomas P. Kuruvilla, Ajay Ben Jose, Manjunath Menon, Anna Linda Eden, Harikrishnan S., Anavadya Sanil Kumar, Anjali Krishna, Abhinav P. S.
For the Respondents: Dinesh Mathew J. Muricken, Vinod S. Pillai, N.R. Sangeetharaj, Nayana Varghese, Jerry Peter
Table of Contents
2. Parties disputed whether the decree was passed under Order XVII Rule 3, barring application under Order IX Rule 13, or under Rule 2, making such application maintainable. (Para 5 , 6 , 7 , 8 )
3. The court found that when a defendant fails to produce evidence on an adjourned date, the court must proceed under Order XVII Rule 2, allowing for Order IX relief. (Para 9 , 10 , 11 , 12 )
4. When a party fails to adduce evidence on an adjourned date, the court must dispose of the suit under Order XVII Rule 2, rendering an application under Order IX Rule 13 maintainable. (Para 11 , 12 )
5. Does a failure to produce evidence on an adjourned date preclude an application to set aside an ex parte decree under Order IX Rule 13?
No. When a party fails to produce evidence, the court must proceed under Order XVII Rule 2. Consequently, the ex parte decree is subject to an application under Order IX Rule 13 as established by the Supreme Court. (Para 8 , 9 , 10 , 11 , 12 )
6. What is the procedure when a defendant remains absent or fails to act on a date fixed for evidence?
Under the Code of Civil Procedure, the court is required to proceed under Order XVII Rule 2, which allows the court to dispose of the suit in one of the modes directed by Order IX, rather than concluding the matter solely under Rule 3. (Para 8 , 9 , 10 , 11 )
JUDGMENT
Dated this the 4th day of November, 2026
Soumen Sen, CJ.
1.The dispute is with regard to a money transaction between the father-in-law and the son-in-law in respect of business.
2. Heard Advocates Sri. Aneesh James and Sri. P.Martin Jose for the appellants as well as Advocate Sri.Nayana Varghese for the 1st respondent.
3. The father-in-law would submit that it was a business loan and the son-in-law had failed to repay the loan amount. There are two suits instituted for the recovery ₹ of an amount of almost 7 Crores.
4. We have read the impugned orders carefully. Admittedly, after the suit progressed substantially, the learned counsel for the defendants had declined to cross- examine the plaintiff/PW1. In fact a memo was filed subsequently to show that he has not received instruction to cross-examine the plaintiff/PW1. Although the learned counsel for the plaintiff has submitted that the matter was posted for evidence of the defendants, the same, however, is disputed by the plaintiff. However, from the impugned order, it appears that after the evidence of plaintiff/PW1 was closed, the case was posted for defendants’ evidence on 22nd November, 2024. Admittedly, the defendants did not adduce any evidence on the date fixed, as a result thereof, the matter was posted for hearing on 4th December, 2024 and thereafter, the judgment was pronounced.
5. The learned counsel for the plaintiff has referred to the decision of a Division Bench of this Court in Fathima M. K. v. Kunhipathu and Others , 2018 (3) KHC 402; 2018 (3) KLT 491 to demonstrate that in a situation where the defendants did not adduce any evidence on the date fixed and the court, after hearing the arguments of the counsel on both sides, pronounced the judgment, the disposal of the suit can only be under Order XVII Rule 3(a) and not under Order XVII Rule 3(b) of the Code of Civil Procedure, 1908 (in short, “CPC”), thereby not attracting Order IX Rule 13 for setting aside of such decree.
6. The defendants/appellants had thereafter filed an application for recalling and/or setting aside of the ex parte decree under Order IX Rule 13 of the CPC.
7. The maintainability of such an application is being resisted in view of the ratio in Fathima M. K. (supra).
8. The learned counsel for the appellants have referred to the decision of the Hon'ble Supreme Court in Prakash Chander Manchanda v. Janki Manchanda , (1986) 4 SCC 699 to contend that in a situation where the defendant failed to appear before the court and consequently no evidence could be recorded on behalf of the defendant on the day to which suit was finally adjourned and the defendant's case was closed by the court, the court is required to proceed under Rule 2 and not under Rule 3 of Order XVII. Accordingly, the court must proceed to dispose of the matter in any of the modes provided under Order IX and, therefore, application made by the defendant under Order IX Rule 13 after passing of the ex parte decree would be maintainable. The case of Prakash Chander Manchanda (supra), was apparently not considered in Fathima M.K. (supra). The present case is akin to the fact situation in Prakash Chander Manchanda (supra).
9. Since the parties have argued as to the maintainability of an application under Order IX Rule 13 of the CPC, it is necessary to refer to Order XVII Rule 2 and Order XVII Rule 3 of the CPC. The said provisions are reproduced below:
“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 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 IX or make such other orders 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.”
“3.
