Recently, the Supreme Court noted that, according to the explanation to Order XVII Rule 2 of the Code of Civil Procedure, the court has the right to mark the presence of a party only if that party has presented evidence or significant evidence and subsequently not attended the proceedings.

The division bench of Justices Vikram Nath and Ahsanuddin Amanullah observed:

"Under Order XVII Rule 2, the Court would proceed to pass orders with respect to any of the parties being absent or both the parties being absent. Whereas the explanation is confined to record the presence of that party and that party alone, which has led evidence or substantial evidence and has thereafter failed to appear.",

Order XVII Rule 2 of Code of Civil Procedure, held that if the parties or any one of them failed to appear on a day of the hearing of the suit is adjourned, 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 order as it deems fit.

Case Brief:

In the said matter, during the proceedings in the Trial Court, the defendants neither showed up nor did their counsel, who had already withdrawn his Vakalatnama by a written request. Following this, the Trial Court ordered the continuation of the lawsuit under Order XVII Rule 2 of the Code of Civil Procedure against the defendants.

Subsequently, an ex parte decree was issued, but after the defendants submitted an application, the decree was revoked. However, the Bombay High Court, upon considering a petition filed by the plaintiff, overturned this decision, leading to the restoration of the ex parte decree.

The appellant, who was the defendant in this case, argued that the order issued by the Trial Court was in accordance with Order XVII Rule 2 of the Code of Civil Procedure, rather than being based on the explanation, as the explanation was not relevant in this context.

To this, the Supreme Court said -"Now coming to the explanation, what is stated therein is 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 would be at liberty to proceed with the case as if such party were present. Two phrases are important in the explanation “any party” and “such party”. “Any party” refers to the party which has led evidence or substantial evidence and “such party” refers to that very party which has led evidence or substantial evidence. What is discernible is that under Order XVII Rule 2, the Court would proceed to pass orders with respect to any of the parties being absent or both the parties being absent. Whereas the explanation is confined to record the presence of that party and that party alone, which has led evidence or substantial evidence and has thereafter failed to appear."

"Once the counsel had withdrawn his Vakalatnama, in normal course, the Trial Court ought to have issued notice to the defendants to engage another counsel, which it did not do and proceeded ex parte. The Trial Court committed an error in doing so. Further, the Trial Court, in its wisdom and discretion having allowed the application under Order IX Rule 13 CPC, the High Court ought to have refrained itself from interfering with an order which advanced the cause of justice by affording opportunities to both the parties so that the suit could be decided on merits.", the court said while allowing the appeal.