Costs of adjournment:
In every such case the Court shall fix a day for the further hearing of the suit, and [shall make such orders as to costs occasioned by the adjournment or such higher costs as the Court deems fit]:
(a) When the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary,
(b) No adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of the party,
(c) The fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment.
(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time,
(e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.] (Order XVII, Rule 2).
Permissibility of reopening of matter at belated stage:
Where there was grant of permission to plaintiff to adduce rebuttal evidence after closure of evidence, of defendants. But by inadvertence matter was straightway posted for arguments. No opportunity was afforded to plaintiff by Court to adduce evidence. Though several adjournments had been granted to plaintiff in suit, that will not forbid Court in allowing his application for adducing further evidence at belated stage. Held, that bar imposed by proviso to Rule 1 of Order XVIII will not apply.
Recovery suit by Bank—Validity of ex parte award on default by lawyer to appear:
In the instant case it was held that mere sending of telegram and informing of his sickness without following proper adjournment procedure or mere filing of restoration application would not prohibit Recovery Officer from proceeding with recovery. Defaulting party could not be allowed to take benefit of its own default. It was further held that in case of retrial of suit on merit, defaulting party should be made to deposit at least 25% decretal amount and cost of litigation even if there was good defence.
The case was adjourned for next day for cross-examination of plaintiff. During the night the counsel had fallen ill and adjournment was sought by the defendant. The court did not allow the adjournment and ordered forfeiture of right to cross-examine. Engaging a new counsel to proceed with trial would be fraught with graverisk and be unrealistic.
The party had no time to make alternative arrangements. Unless there is time for the new counsel to be engaged for application for his mind to pleadings, issues framed, the evidence already on record, it would be difficult to proceed with the cross-examination on the spur of the moment.
The court should have adjourned the case for the next day to enable the defendant to have another counsel engaged and given instructions to the new counsel to proceed with the cross-examination in the light of the pleadings and the issues framed in that behalf. The court committed grave error of law by its order to forfeit the right of the defendant to cross-examine the plaintiff. The trial court was directed to allow cross-examine the defendant by fixing date for the same.
Procedure if parties fail to appear on day fixed:
Where on the adjourned date the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes mentioned in Order IX dealing with consequence of non-appearance of parties; discussed earlier or make such order as it thinks fit. (Order XVII, Rule 2).
The Explanation added to Rule 2 provides that 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.
Where the defendant’s husband who was acting as her pairokar and her counsel, duly authorised to appear, act and plead on her behalf were both present in court on the date of hearing and the counsel reported “no instructions”, which means that he refused to appear for the defendant-appellant, the defendant could not be said to be present in court. The decree was technically passed ex parte.
The defendant appellant did not make any application subsequently showing sufficient cause for his non-appearance. The decree could not therefore be set aside on any of the grounds on which a decree could be set aside under Order IX, Rule 13, C.P.C. in case it was deemed to be an ex parte decree passed under Order IX, Rule 13, C.P.C. read with Rule 2 of Order XVII of the Code of Civil Procedure.
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 of his witnesses, or to perform any other act necessary to the further progress of the suit for which time has been allowed, the court may notwithstanding such default,—(a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is absent, proceed under Rule 2 above. (Order XVII, Rule 3). To apply the procedure under Order XVII, Rule 3, C.P.C. there should be presence of both the elements, viz., (1) the adjournment must have been at the instance of a party, and (2) there must be materials on the record for the court to proceed to decide the suit.
Right of party to prove its case by leading evidence:
Such right could not be taken away by Court save otherwise in case of failure to produce evidence and such failure was required to be recorded in the order leading to closure of evidence. It was only then that the Court could proceed to decide suit after doing away with evidence of party. Held, that Court by no stretch of imagination could decide suit straightway discarding evidence of party though Courts enjoy such power under C.P.C. Rule 6, Order XII where claim was admitted.
Rule 2 of Order XVII does not apply where no day has been fixed for the hearing, but applies where the hearing of a suit has been adjourned and on the adjourned date the parties or any of them fail to appear.
Rule 3 of Order XVTI 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 not having done what they were directed to do.
Rules 2 and 3 are mutually exclusive and where the pleader pleads no instructions and the party is not prepared to go on rule 2 and not rule 3 applies. Rule 3 means that the court has discretion to decide the case on the adjourned date or not, but if it does decide the suit, it will be a decision on the merits and appearance on behalf of the defendant would be assumed, whether he was in fact present or not and the decree cannot be regarded as ex parte. Only an appeal and no revision lies against an order under Order XVII, Rule 3.
Where on an adjourned date, a case is decided in the absence of the defendant and the order is described as an ex parte one, it cannot be said that merely because the court gave some reasons for its decision, it becomes a decision on merits so as to take the case out of the provisions of Order IX.
No Instructions to counsel—Proper Procedure:
Where on the refusal of an application for adjournment the plaintiff’s pleader reports “No instructions” and the plaintiff though present during the defendant’s argument asks for time to engage another pleader which is refused, the trial judge should, in such circumstances, pass an order dismissing the suit for default under Rule 2 and not purport to pass a decree based on a finding on the merits against the plaintiff under Rule 3.
Different remedies against Order XVII, Rules 2 and 3:
The remedies in the case of the orders under Rule 2 and Rule 3, are different. If a suit is dismissed under Order XVII, Rule 2, read with Order IX, Rule 8 (i.e., where the defendant appears and the plaintiff does not appear), the remedy is by application under Order IX, Rule 9, i.e., the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action but he may apply for restoration of the suit. But if suit is dismissed under Order XVII, Rule 3, the remedy is by way of an appeal.
Remedy in case of default under Rules 2 and 3 of Order XVII:
Where there is default under both the rules, i.e., the party having got an adjournment not only fails to perform the act for which adjournment was given but also fails to appear on the adjourned date, Rule 2 should be applied; but if there are materials to justify a decision on ‘merits’, Rule 3 should be resorted to.
If the suit came to be disposed of on account of the non-appearance of the plaintiff on a hearing day but it was not at the instance of the plaintiff that the suit was adjourned for the day it came to be disposed of, the court can proceed only under Order XVII, Rule 2 in one of the modes prescribed by Order IX, presumably in the manner prescribed by Order IX, Rule 8. An application under Order IX, Rule 9 by the plaintiff would be maintainable in such a case.
Rama Rao v. Shantibai:
The construction of Order XVII, Rule 2 should be such that where it is permissible to treat an order as falling within the ambit of Rule 2, it must be taken as being outside the ambit of Rule 3 for the obvious reason that Rule 3 is a more stringent provision requiring a strict construction.
The plain and unambiguous language of the two provisions, the deliberate departure made in the phraseology of the two rules; the undisputed need to construe Rule 3 strictly; the consequences which necessarily follow as a result of the construction made and the heading of the two rules, are factors which lead without any hesitation to the conclusion that Rule 2 applies to all cases of default in appearance of all or any of the parties with the result that Rule 3 does not apply to any of those cases.
This conclusion also enables the defaulting party to have the order made under Order IX, C.P.C. set aside in the manner provided for that purpose in the Code by showing that there was valid reason for default in appearance on the date fixed.
The expression ‘such other order as it thinks fit’ used in Rule 2 permits disposal of the suit and not a decision thereof on merits contemplated by Rule 3, in a mode other than that provided in Order IX, e.g., by an order of adjournment.
It follows that Rule 3 presupposes the presence of all parties and then the failure of the party at whose instance and for whose benefit the hearing was adjourned on the previous date, to perform the act necessary to the further progress of the suit. It is only to this class of cases that Rule 3 applies and it has no application to cases falling within the ambit of Rule 2.
Whenever such a question arises, it has first to be seen whether Rule 3 applies to the facts of a case, since on Rule 2 being attracted, the operation of Rule 3 would be automatically excluded. It is only when there is no default in appearance of all or any of the parties that the question of applying Rule 3 would arise to the facts of a case, provided the requirements laid down in Rule 3 are fulfilled.
If, when a suit is called on for hearing, a party’s counsel appears and seeks adjournment but when adjournment is refused he retires saying that he has no instructions, it will be no appearance of the party and Rule 2 of Order XVII alone would be attracted.
However, in such a case the defaulting party must show ‘sufficient cause’ for non-appearance as well as for not fully instructing the counsel. If the Counsel had sought adjournment because he was instructed by his client to ask for an adjournment only, and not to proceed with the trial if adjournment be refused, or if the counsel feels a necessity to seek adjournment so that he may prepare himself and, on his own seeks adjournment, it will be no appearance of the party and Rule 2 of Order XVII, C.RC., alone would be attracted.
If, when a case is called on for hearing, the counsel appears (without making any request for adjournment) merely to inform the court that he has no instructions and, therefore, would not appear, it will be no appearance of the party and Rule 2 of Order XVII, C.P.C. alone would be attracted.
Application for setting aside dismissal of suit:
An application under Order IX, C.P.C. will lie for setting aside the dismissal of a suit in the following circumstances and Order XVII, Rule 2 would alone be attracted: (a) where the plaintiff had not been asked to do something and he did not appear when the case was called on for hearing, or (b) where the plaintiff was asked to do something which he did not do, nor did he appear when the case was called on for hearing.
Application for setting aside ex parte order:
In the following situations, the defendant can apply under Order IX, Rule 13, C.P.C. for setting aside an ex parte decree and Order XVII, Rule 2 would alone be attracted : (a) when the defendant had not been asked to do something and he did not appear and the court decided the suit on the basis of the existing material, without or after taking any further evidence on record; (b) when the defendant had been asked to do something which he did not do, nor appeared when the case was called on for hearing and the court decided the suit on the existing material without taking any further evidence for the plaintiff; (c) when he had been asked to do something which he did not appear when the case was called on for hearing and, therefore, on the same day, the Court took on record ex parte evidence produced by the plaintiff; and (d) when he had been asked to do something which he did not do, nor appeared when the case was called on for hearing and the trial court adjourned the hearing for recording plaintiff’s evidence ex parte and on the next date after recording plaintiff’s ex parte evidence, passed an ex parte decree against him.
Consequence of non-appearance on adjourned date of hearing and remedy:
A case in which the defendant obtains an adjournment on the date of final hearing of the suit and fails to appear on the adjourned date is covered by Rule 2 of Order XVII, and an application under Order IX, Rule 13 will lie even if the court proposes to act under Rule 3. Rule 3 applies when a party is present, or is deemed to be present, and has defaulted in doing the acts mentioned in Rule 3.
Where the Court on non-appearance of the defendant even if expressly proceeded to decide the case under Order XVII, Rule 3 instead of deciding it ex parte under Order XVII, Rule 2, the defendant was not precluded from moving an application under Order IX, Rule 13, for setting aside such decree.
When the defendant obtains adjournment of the suit but fails to appear on the adjourned date, the matter is governed by Order XVII, Rule 2 and not by Order XVII, Rule 3. Consequently, if the court wants to dispose of the suit, it should dispose it of in accordance with the provisions of Order IX that is ex parte, but should not decide it on merits.
Appeal against ex parte decree—when on merits and when grounds of non-appearance-circumstances:
In an appeal against ex parte decree the appellant can only be heard on the merits of the case. The appellate court cannot go into the question as to why the appellant had not appeared on the date of final hearing before the trial court. This is the scope of an application under Order IX, Rule 13, C.P.C.
When the defendant is absent no proceedings under Rule 3 of Order XVII can be taken. When any of the parties fails to appear on an adjourned hearing of the suit the court can proceed either under Order IX or to adjourn the suit but where substantial portion of evidence of a party has already been recorded and such party fails to appear on the adjourned date then only the court can proceed to decide the suit on merits even under Rule 2 of Order XVII.
Where in a case neither any evidence had been recorded either on behalf of the plaintiff or on behalf of the defendant by the date on which ex parte decree was passed nor the defendant was physically present in court on the date on which the decree was passed, application of Order XVII, Rule 3 was clearly excluded and the only course open to the court was to proceed under Order XVII, Rule 2. Therefore, the court would be deemed to have acted illegally when it proceeded to decide the suit on merits under Rule 3 after rejecting the defendant’s application for adjournment.
The court, hearing an appeal against an ex parte decree passed under Order XVII, Rule 3, can go into the grounds of non-appearance of the defaulting party unless it be barred from doing so either under the doctrine of res judicata or under other positive rule of law. The court can also consider whether the defendant was prevented by any sufficient cause in
Provisions regarding examination of party not mandatory:
A close reading of the provision of Rule 3-A indicates that the insistence of examination of a party as a first witness is not an inviolable rule and the rule itself provides an exception. May be that the Court has to be assign reasons for giving such permission. In the instant case there is a breach of Rule 3-A, but at the time of examination of the plaintiff as PW 2, the defendant has not objected and the evidence has been recorded.
Thereby in the context of facts, it should be construed that there has been an implied permission granted by the Court. The provisions of Order XVTII, Rule 3-A are not mandatory and does not necessarily visit with the consequences rendering such evidence a nullity. [Order XVII, Rule 3-A]