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Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Scope of Order 17 Rules 2 & 3 - These rules govern procedures when parties fail to appear or when a party is absent in a suit. Rule 2 allows the court to make such orders as it thinks fit, while Rule 3(b) mandates proceeding under Rule 2 if a party is absent, especially in ex parte cases. Courts can pass ex parte decrees when defendants are absent and have not led evidence, but such decrees can be set aside if the defendant applies under Order 9 Rule 13 and proves lack of proper service or other sufficient cause. ["A.N.SANU vs THE KERALA STATE ELECTRICITY BOARD - Kerala"], ["Rambati Bai VS Govind Narayan Sharma - Madhya Pradesh"], ["Prem Kishore VS Brahm Prakash - Supreme Court"], ["Sivasamy VS Sarasammal - Madras"], ["Suresh Kumar VS State of Rajasthan - 2013 0 Supreme(Raj) 2006"]
Procedure for Ex Parte Decrees - When defendants are absent, courts typically proceed under Order 17 Rule 3(b), which directs them to follow the procedures in Rule 2. Ex parte decrees are permissible but can be challenged and set aside if proper application is made, especially under Order 9 Rule 13. Courts have emphasized that such powers are to be exercised sparingly and in exceptional cases. ["A.N.SANU vs THE KERALA STATE ELECTRICITY BOARD - Kerala"], ["Rambati Bai VS Govind Narayan Sharma - Madhya Pradesh"], ["Prem Kishore VS Brahm Prakash - Supreme Court"], ["Sivasamy VS Sarasammal - Madras"], ["Suresh Kumar VS State of Rajasthan - 2013 0 Supreme(Raj) 2006"]
Appeals and Revisions - An appeal against ex parte decrees can be filed under Section 96(2) of the CPC, but if the decree is passed with the consent of parties, no appeal lies. The courts have clarified that if both parties are present, Order 17 Rule 2 does not apply, but if a party is absent and an ex parte decree is passed, then Order 17 Rule 3(a) or 3(b) applies, providing grounds for appeal or review. ["Yogini Shaileshbhai Bhuta VS Rrahulraj Realtor Pvt. Ltd. And Director Narendra Kantilal Shah - Gujarat"], ["Prem Kishore VS Brahm Prakash - Supreme Court"], ["Suresh Kumar VS State of Rajasthan - 2013 0 Supreme(Raj) 2006"], ["Sivasamy VS Sarasammal - Madras"], ["Sunita Devi VS Raj Kumar Singhal - Delhi"]
Judicial Discretion and Limitations - The courts have underscored that powers under Order 17 Rules 2 and 3 are to be exercised carefully and only in appropriate circumstances. For instance, Rule 2's discretion to make such orders as it thinks fit should be exercised sparingly, and the power to proceed ex parte should not be abused. Similarly, recalling witnesses under Order 18 Rule 17 is to be done cautiously and only when justified. ["A.N.SANU vs THE KERALA STATE ELECTRICITY BOARD - Kerala"], ["Sunita Devi VS Raj Kumar Singhal - Delhi"], ["Suresh Kumar VS State of Rajasthan - 2013 0 Supreme(Raj) 2006"]
Case Law and Judicial Interpretations - Several judgments have clarified that proceedings under Order 17 Rules 2 and 3 are meant to facilitate justice when parties default or are absent, but they do not permit arbitrary decisions. The courts have held that decrees passed ex parte can be challenged and that procedural safeguards must be observed. The distinction between procedures under Rules 2 and 3 is crucial for determining the rights of parties and the appealability of decrees. ["A.N.SANU vs THE KERALA STATE ELECTRICITY BOARD - Kerala"], ["Yogini Shaileshbhai Bhuta VS Rrahulraj Realtor Pvt. Ltd. And Director Narendra Kantilal Shah - Gujarat"], ["Suresh Kumar VS State of Rajasthan - 2013 0 Supreme(Raj) 2006"], ["Rambati Bai VS Govind Narayan Sharma - Madhya Pradesh"], ["Prem Kishore VS Brahm Prakash - Supreme Court"]
Analysis and Conclusion:Decrees passed under Order 17 Rules 2 and 3 are procedural tools used when parties fail to appear or are absent during trial. Rule 2 empowers courts to make appropriate orders, while Rule 3(b) guides courts to proceed ex parte when a party is absent. Such decrees are subject to challenge, especially under Order 9 Rule 13, which allows setting aside ex parte decrees if proper grounds are established. Courts emphasize exercising these powers judiciously to prevent miscarriage of justice. The procedural distinctions are important for determining appeal rights and the validity of decrees.
In the realm of civil litigation in India, questions about the nature of court decrees often arise, such as Compromise Decree Satisfy Order 23 Rule3 Give me some Important Judgements. While Order 23 Rule 3 governs the recording of compromise decrees, which are typically binding and executable upon satisfaction by the court, related inquiries frequently extend to provisions like Order 17 Rules 2 and 3 of the Code of Civil Procedure (CPC), 1908. These rules address scenarios where parties fail to appear or produce evidence, profoundly impacting the remedies available. This post delves into the distinctions, key principles, and landmark judgments to clarify when a decree can be set aside via Order 9 Rule 13 or requires an appeal. Note: This is general information and not specific legal advice; consult a qualified lawyer for your case.
Order 17 of the CPC deals with adjournments and the consequences of non-appearance or failure to proceed. The court must balance expeditious justice with fairness, but the choice between Rule 2 and Rule 3 determines the decree's character—whether it's dismissible for default or decided on merits.
This rule applies when one or more parties fail to appear at the hearing. The court may:- Dispose of the suit under Order 9 (dealing with appearance of parties and consequences of non-appearance).- Make any other order it deems fit, such as granting an adjournment.
Nature of Decree: A dismissal under this rule is typically not on merits, allowing the aggrieved party to seek restoration via an application under Order 9 Rule 13. For instance, if no evidence has been led, proceeding ex parte under this rule permits setting aside the decree upon showing sufficient cause. Chettinad Cement Corporation Limited VS K. Arumugam - Madras (2023)SURYARAO VS PEDDIYYA - Andhra Pradesh (2065)
The Supreme Court has emphasized that courts should not hastily decide on merits without evidence. If a party is absent and no evidence has been examined, the court must proceed under Rule 2. K. Narayana Prakash VS B. Chenga Reddy - Andhra Pradesh (1992)C. Madhu VS K. Vajravel - Current Civil Cases (2010)
This rule kicks in when a party fails to produce evidence or secure witness attendance after adjournments. The court shall, notwithstanding such default, proceed to decide the suit forthwith.
Nature of Decree: Such decrees are generally on merits, rendering Order 9 Rule 13 applications inadmissible. The remedy shifts to an appeal. However, this power is drastic and must be exercised sparingly. Power conferred on Courts under Rule 3 of Order 17 of CPC to decide suit on merits for default of a party is a drastic power which seriously restricts remedy of unsuccessful party for redress. Sardar Tejinder Singh VS Sardar Govinder Singh - 2023 Supreme(HP) 271
Power under Rule 3 Order 17 shall be used sparingly in exceptional cases, Hon’ble Apex Court has held that there must be some material for a decision on merits, even though materials may not be technically interpreted as evidence. Sardar Tejinder Singh VS Sardar Govinder Singh - 2023 Supreme(HP) 271
The line between Rules 2 and 3 hinges on circumstances:- No evidence examined + party absent: Rule 2 applies; Order 9 Rule 13 viable. Daka Venkatrami Reddy VS Central Bank of India, Ongole - 2000 Supreme(AP) 51- Evidence stage + deliberate default: Rule 3 may apply; appeal only. Faiyaz Khan VS Mithan - Allahabad (2053)
Courts retain discretion under Rule 2 to avoid merit-based decisions in absence. The court has discretion under Rule 2 to make orders other than dismissing the suit, such as granting further adjournments, but it cannot decide the case on merits if a party is absent. RAMA RAO VS SHANTIBAI - Madhya Pradesh (1976)Devidayal Sales Pvt. Ltd VS State Trading Corporation of India - Bombay (2009)
Ex parte decrees after rejecting adjournments often fall under Rule 2, not Rule 3. SURYARAO VS PEDDIYYA - Andhra Pradesh (2065)Faiyaz Khan VS Mithan - Allahabad (2053)
In this Supreme Court case, the court clarified: Even if counsel is present but the party is absent and no evidence recorded, Rule 3 cannot apply. Trial Court dismissing application filed under Or9R13 to set aside exparte decree holding that defendant was not set exparte and order passed under Or17R3 as Counsel was present - In the instant case when case was called defendant not present and till date of order no evidence was recorded on behalf of defendant - Even if counsel is present and party is not present Court cannot proceed under Or17 R3 - Or17 R2 is applicable. Daka Venkatrami Reddy VS Central Bank of India, Ongole - 2000 Supreme(AP) 51K. Narayana Prakash VS B. Chenga Reddy - Andhra Pradesh (1992)C. Madhu VS K. Vajravel - Current Civil Cases (2010)
The petition under Order 9 Rule 13 was held maintainable as it was effectively under Order 17 Rule 2.
The Hon'ble Apex Court stresses exceptional use only. In a property dispute under Article 227, the High Court noted: Plaintiff had not come present to cross-examine defendant, court below taking recourse of Order 9 Rule 6 (a) ought to have passed preliminary decree under Order 17 Rule 2 CPC and same being ex-parte decree within meaning of Order 9 Rule 6 (a) could be set-aside by way of application, if any, made under Order 9 Rule 13 CPC. Previous default dismissal doesn't operate as res judicata without merits finding. Sardar Tejinder Singh VS Sardar Govinder Singh - 2023 Supreme(HP) 271
Plaintiff refused to lead evidence on the day the suit was fixed for hearing - Suit dismissed for default - Order falls under Order 17, Rule 3 - Application under Order 9, Rule 9 to set aside the order of dismissal of the suit - Not maintainable. Kalagara Hari Babu VS Edupuganti Krishna Rao - 1996 Supreme(AP) 628
Here, mere presence for adjournment doesn't trigger Rule 3 if no participation: Order 17 Rule 3 C. P. C. does not apply to a case where a party appears merely for the purpose of seeking an adjournment, after the refusal of which... he would be considered as not present. Kalagara Hari Babu VS Edupuganti Krishna Rao - 1996 Supreme(AP) 628
In scenarios involving attachment or amendments, courts reinforce procedural rigor. For example, rejecting applications post-evidence under Order 6 Rule 17 highlights diligence requirements, indirectly supporting strict interpretation of Order 17. HARI DUTT SHARMA VS 1ST ADDITIONAL CIVIL JUDGE J D HARIDWAR - 2005 Supreme(All) 1985Amrit Lal Vij VS Jalandhar Improvement Trust - 2014 Supreme(P&H) 1391
Power under Rule 3 demands material akin to evidence; absence thereof mandates Rule 2. Sardar Tejinder Singh VS Sardar Govinder Singh - 2023 Supreme(HP) 271
Litigants should document readiness, as delays (e.g., in specific performance suits) can bar amendments. Amrit Lal Vij VS Jalandhar Improvement Trust - 2014 Supreme(P&H) 1391
The distinction between Order 17 Rule 2 and Rule 3 decrees is pivotal: one offers restoration via application, the other demands appeal. Landmark cases like Prakash Chander Manchanda underscore sparing use of Rule 3, protecting parties from harsh defaults. Always scrutinize case facts—presence of evidence, counsel role, and court discretion.
Key Takeaways:- Rule 2: Flexible, Order 9 Rule 13 applicable. Chettinad Cement Corporation Limited VS K. Arumugam - Madras (2023)SURYARAO VS PEDDIYYA - Andhra Pradesh (2065)- Rule 3: Merits-based, appeal only; use sparingly. Sardar Tejinder Singh VS Sardar Govinder Singh - 2023 Supreme(HP) 271- No evidence? Likely Rule 2. Daka Venkatrami Reddy VS Central Bank of India, Ongole - 2000 Supreme(AP) 51
References: Chettinad Cement Corporation Limited VS K. Arumugam - Madras (2023)K. Narayana Prakash VS B. Chenga Reddy - Andhra Pradesh (1992)Faiyaz Khan VS Mithan - Allahabad (2053)C. Madhu VS K. Vajravel - Current Civil Cases (2010)SURYARAO VS PEDDIYYA - Andhra Pradesh (2065)RAMA RAO VS SHANTIBAI - Madhya Pradesh (1976)Devidayal Sales Pvt. Ltd VS State Trading Corporation of India - Bombay (2009)Sardar Tejinder Singh VS Sardar Govinder Singh - 2023 Supreme(HP) 271Daka Venkatrami Reddy VS Central Bank of India, Ongole - 2000 Supreme(AP) 51Kalagara Hari Babu VS Edupuganti Krishna Rao - 1996 Supreme(AP) 628
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The scope of Order 17 Rule 2 and Order 17 Rule 3 of the Code came up for consideration before this Court in B. Janakiramaiah Chetty v. A.K. ... In Rule 2, the expression used is “make such or- der as it thinks fit”, as an alternative to adopting one of the modes directed in that behalf by ....
, made under Order 9 Rule 13 CPC - Power under Rule 3 Order 17 shall be used sparingly in exceptional cases, Hon’ble Apex Court has ... , 1950 - Article 227 – Code of Civil Procedure, 1908 – Section 151, Order 14 Rule 5, Order 7 Rule 14, Order 9 Rule 9, 6 (a),13, Order ... 17 Rule 2, 3, (a) - Property - Entitled to share as a coparcener - Adjudication of case - Petition challenge to order passed whereby ... is to proceed u....
Section 96 (2) states that an appeal may lie from an original decree passed ex-parte. Section 96 (3) states that no appeal shall lie from a decree passed by the court with the consent of parties. ... Therefore, one thing is certain that if both the parties are present, then Order-XVII Rule-2 can never apply. The consistent view is tha....
, Rule 2 and Order XVII, Rule 3 of CPC had been explained. ... The Defendants filed Petition under Order 17, Rule 3 which was dismissed and the judgment was pronounced and ex parte decree granted. ... Subsequently, the Defendants 1 and 3 filed I.A.No.1614 of 2017 and Defendants 2 a....
(Paras 25, 27 and 34) (B) Civil Procedure Code, 1908 – Order 7 Rule 11 and Section 11 and Order 17 Rules 2 ... 17 of CPC. ... 17 of CPC to decide suit on merits for default of a party is a drastic power which seriously restricts remedy of unsuccessful party ... The scope of Order 17 Rule 2 and Order 17 Rule....
Respondent PRESENT Shri Shailendra Agarwal, Hon’ble Member The complainant present in person CA Prateek Rawat, on behalf of the respondent through video conferencing Date of Order: 17.05.2023 OR DER The aforementioned case was listed before this Court for non-compliance of the order passed by this ... Since the order was passed on 31.01.2023 and though a period of ....
Order 17 Rules 2 and 3 read as under : " Order 17 Rules 2 & 3 2. Procedure if parties fail to appear on day fixed. ... The scope of Order 17, rule 2 and Order 17, rule 3 of the Code ca....
The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and reexamination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC. ... The order dated 16th March, 2022, passed#HL....
This is also not in spirit with the provisions of Order 22, Rule 4 (2) of the Civil Procedure Code. ... The impugned order, i.e. or.der passed by the Court of learned Civil Judge, Rajgarh, Camp at Sarahan, District Sirmaur, H.P., i.e. order datfed 21.06.2023, passed in C.M.A. No.93/6 of 2022, filed in Civil Suit No.22/1 of 2015, is set aside. t 19. .......
17 Rule 2 or Order 17 Rule 3 of CPC. ... 17 Rule 2 and Order 17 Rule 3 of CPC. ... Civil Revision Petition - Setting Aside Ex Parte Decree - Order 17 Rule 2, Order 17 Rule 3 of CPC - [Order ... The issue is to be considered in the above civil revision petition whether the judgement passed#....
10. Order 6 Rule 17 of the C.P.C., before amendment by Act 22 of 2002, was as un-der:- 9. I have heard learned counsel for the parties and examined the available record with their able assistance.
The plaintiff/re spondent alleged that at the time of at tachment the disputed property was in his possession and he was recorded as Bhumidhar of the same, Shiv Chand Kumar was not the owner of the land nor he was in possession and he had no right to transfer the property in suit. The plaintiff moved an application un der Order 21 Rule 58 C. P. C. before the Additional District Judge, Dehradun, but the same was rejected for the reason that the application was moved after expi....
Shakuntala Devi as owner/landlord from the plaint and fur ther consequential amendments were sought by the petitioner. 3. An application was moved un der Order 6 Rule 17 before the court below after the evidence of PW1 was recorded. The plaintiff proposed to amend his plaint and to delete the name of Smt.
Therefore, the lower Court is not right in coming to the conclusion that it was a decree passed under Order 17 Rule 3 c. P. C. The learned Counsel for the appellant cited a decision of the Hon ble Supreme Court in prakash Chander Manchanda vs. Therefore, the petition filed by the appellant under order 9 Rule 13, C. P. C. is maintainable. It is a decree passed only under order 17 Rule 2 C. P. C.
It has been observed by the learned Judge of this Court as follows:"order 17 Rule 3 C. P. C. does not apply to a case where a party appears merely for the purpose of seeking an adjournment, after the refusal of which, whether he goes out of although remains present does not participate in the hearing of the case, in either case he would be considered as not present. Any decree passed in these circumstances would not be deemed to have been passed under Order 17 Rule 3. It woul....
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