The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.559 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Ashok Kumar Kedia@Ashok Kedia …. Petitioner -versus- Harsabardhan another Tibrewal and …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. B. Bhuyan, Senior Advocate For Opposite Parties : Mr. S. Udgata, Advocate For O.P. No.1 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 17th November 2025 B.P. Routray, J. 1. Heard Mr. B. Bhuyan, learned Senior Advocate for the Petitioner and Mr. S. Udgata, learned Advocate for Opposite Party No.1. 2. No-one enters appearance for Opposite Party No.2 despite the notice is served on him as per the postal tracking report. 3. Present C.M.P. is directed against order 09.09.2022 passed by learned Civil Judge (Sr. Divn.), Jharsuguda in T.S. No.152 of 1994 and the order dated 29.01.2025 passed by the learned Addl. District Judge, C.M.P. No.559 of 2025 Page 1 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 Jharsuguda in Civil Revision Case No.1 of 2023, wherein the dismissal of the suit for non-payment of cost made by the learned trial court was confirmed by the revisional court. 4. Present Petitioner is substituted Plaintiff No.1 and present Opposite Party No.2 is substituted Plaintiff No.2 in T.S. No.152 of 1994. Opposite Party No.1 before this Court is the sole substituted Defendant. The suit is with prayer for appointment of the arbitrator under Section 8 of the Arbitration Act, 1940. 5. During pendency of the suit, original Plaintiff and Defendant were died and have been substituted subject to the dispute raised regarding substitution and decision of the court made under Order 22 Rule 5 of the C.P.C. On the date fixed i.e. 09.09.2022, the suit was posted for hearing and payment of cost by the Plaintiffs. A time petition was filed on behalf of the Plaintiffs without payment of cost. However, the learned trial court rejected the prayer for time and dismissed the suit invoking its inherent power under Section 151 of the C.P.C. C.M.P. No.559 of 2025 Page 2 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 6. After the order dated 09.09.2022 was passed dismissing the suit, Plaintiff No.1 preferred a Civil Revision in C.R. Case No.1 of 2023 which was also dismissed vide judgment dated 29.01.2025 of learned Additional District Judge, Jharsuguda. Present C.M.P. is directed challenging both such orders of revisional court and the trial court. 7. On the other hand, Plaintiff No.2 filed C.M.A. No.37 of 2022 before the learned trial court as per Order 9 Rule 9 C.P.C. praying for restoration of the suit. However, vide order dated 20.05.2025 said C.M.A. No.37 of 2022 filed by the other Plaintiff was also dismissed. Challenging the dismissal order dated 20.05.2025 passed in C.M.A. No.37 of 2022 the other Plaintiff has preferred F.A.O. No.6 of 2025 before the learned District Judge, Jharsuguda which is still pending consideration. 8. It is seen from the impugned order dated 09.09.2022 of the learned trial court that he invoked inherent power of the court while dealing the matter under Rule 3 of Order 17, C.P.C. The learned trial
Legal Reasoning
court has referred two decisions of this Court in Orissa State Financial Corporation vs. Gopal Chandra Ghosh, 1985 (I) OLR-81 and in C.M.P. No.559 of 2025 Page 3 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 Radhika Engineering Industries vs. Hindustan Aeronautics Ltd., 1993 (II) OLR-37. 9. The provisions under Order 17 Rule 1 C.P.C. specifies for adjournment of hearing including costs of adjournment and the conditions where adjournments should not be granted. Rule 2 prescribes the procedure if the parties fail to appear on the date fixed and Rule 3 prescribes proceeding of the court in two parts in the circumstances without production of evidence by the party. For better appreciation Rule 2 and 3 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 order 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. 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 C.M.P. No.559 of 2025 Page 4 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 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.” 10. In the circumstances under Rule 3, when the party is found absent, the court may resort to any of the modes prescribed under Order IX, C.P.C., subject to the explanation provided in Rule 2 of Order 17. In Satyaranjan Kar (since dead) & his LRs vs. Nanigopal Pradhan & others, 2021 (II) CLR—1082, this Court has observed as follows:- “9. It is the settled position that Rule 2 and 3 of Order 17 of the Code provide for distinct and different sets of circumstances. Rule 2 applies where an adjournment has been generally granted and not for any special purpose, whereas Rule 3 applies where the adjournment has been given for one of the purposes mentioned in said Rule 3. When Rule 3 empowers the Court to decide the suit forthwith, Rule 2 speaks of disposal of the suit in one of the modes specified. Rule 2 does not apply unless the party has failed to appear at the hearing whereas Rule 3 will apply where the party appears, but has committed default as referred to in said rule. It has also been held in several cases that even where a party is physically present in Court but refuses to take part in the proceeding after C.M.P. No.559 of 2025 Page 5 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 his application for adjournment is refused, he cannot be said to have appeared at the hearing, so as to being the matter within Rule 3 of Order 17 of the Code. Even where a party to whom time had been granted at his instance for doing one of the acts mentioned in Rule 3 of Order 17 but he fails to do the same, and also does not appear at the hearing of the suit, then the Court should proceed only under Rule 2. (Ref:- M/s.Radhika Engineering Industries v. M/s. Hindustan Aeronautics Ltd., Koraput Division, 1993 (II) OLR 37). 10. In the given case, when the Defendants having adduced evidence by examining two witnesses and having taken several adjournments for the purpose of adducing further evidence have failed to do so, in that situation, the Trial Court having not condoned the default having the tendency to drag on the hearing of the suit at the whims of the Defendants, this Court is not in a position to say that there was unreasonable denial of the opportunity to the Defendants in taking part in the hearing. In view of all these above, this Corut finds no fault with the Trial Court in disposing the suit on merit.” 11. In Prem Kishore v. Brahm Prakash, (2023) 19 SCC 244, Hon’ble Supreme Court have been explained as follows:- “42. The scope of Order 17 Rule 2 and Order 17 Rule 3 CPC came up for consideration before this Court in B. Janakiramaiah Chetty v. A.K. Parthasarthi [B. Janakiramaiah Chetty v. A.K. Parthasarthi, (2003) 5 SCC 641], wherein Arijit Pasayat, J. speaking for the Bench held in paras 7 to 10 as under : (SCC pp. 645-46) “7. In order to determine whether the remedy under Order 9 is lost or not what is necessary to be seen is whether C.M.P. No.559 of 2025 Page 6 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 in the first instance the Court had resorted to the Explanation to Rule 2. 8. The Explanation permits the court in its discretion to proceed with a case where substantial portion of 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. As the provision itself shows, discretionary power given to the court is to be exercised in a given circumstance. For application of the provision, the court has to satisfy itself that : (a) substantial portion of the evidence of any party has been already recorded; (b) such party has failed to appear on any day; and (c) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the court to adopt any of the modes provided in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The Explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the court to act under the specified circumstance i.e. where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the court may in its discretion deem as if such party was present. Under Order 9 Rule 3 the court may make an order directing that the suit be dismissed when neither party appears when the suit is called on for hearing. There are other provisions for dismissal of the suit contained in Rules 2, 6 and 8. We are primarily concerned with a situation covered by Rule 6. The crucial words in the Explanation are “proceed with the case”. Therefore, on the facts it has to be C.M.P. No.559 of 2025 Page 7 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 seen in each case as to whether the Explanation was applied by the court or not. 9. In Rule 2, the expression used is “make such order as it thinks fit”, as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to the court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the court to decide the suit forthwith. The basic distinction between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present. 10. The crucial expression in the Explanation is ‘where the evidence or a substantial portion of the evidence of a C.M.P. No.559 of 2025 Page 8 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 party’. There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party’s stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The court while acting under the Explanation may proceed with the case if that prima facie is the position. The court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision.” (emphasis supplied) 43. The Full Bench decision of the Madras High Court in Prativadi Bhayankaram Pichamma v. Kamisetti Sreeramulu [Prativadi Bhayankaram Pichamma v. Kamisetti Sreeramulu, 1917 SCC OnLine Mad 224 : AIR 1918 Mad 143 (2)] and the decision of the Calcutta High Court in Mariannissa v. Ramkalpa Gorsin [Mariannissa v. Ramkalpa Gorsin, ILR (1907) 34 Cal 235] fell for consideration of the Full Bench of the Rajasthan High Court in Gopi Kishan v. Ramu [Gopi Kishan v. Ramu, 1964 SCC OnLine Raj 1 : AIR 1964 Raj 147] , and the Bombay High Court in Shidramappa Irappa Shivangi v. Basalingappa Kushnapa Kumbhar [Shidramappa Irappa Shivangi v. Basalingappa Kushnapa Kumbhar, 1943 SCC OnLine Bom 16 : AIR 1943 Bom 321 : ILR 1944 Bom 1] . 44. The Full Bench of the Rajasthan High Court in Gopi Kishan [Gopi Kishan v. Ramu, 1964 SCC OnLine Raj 1 : AIR C.M.P. No.559 of 2025 Page 9 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 1964 Raj 147] observed as under : (SCC OnLine Raj paras 8- 9) “8. In Prativadi Bhayankaram Pichamma v. Kamisetti Sreeramulu [Prativadi Bhayankaram Pichamma v. Kamisetti Sreeramulu, 1917 SCC OnLine Mad 224 : AIR 1918 Mad 143 (2)] , the Full Bench of the Madras High Court has held that Rules 2 and 3 of Order 17 of the Code of Civil Procedure are mutually exclusive. Where the conditions of Rule 2 are fulfilled even if the circumstances envisaged by Rule 3 are existent and applicable, Rule 2 should be applied. The reasons which persuaded the learned Judges to make this preference are that when a party has failed both to appear as well as to produce evidence or to perform an act for which time was granted to it, it will be unjust in the party’s absence to assume that its failure to produce evidence or to perform the act was unjustified he being absent and, therefore, unable to offer any explanation for its failure to produce evidence or to do acts in furtherance of the progress of the suit. Equity demanded that the Court should proceed under Order 17 Rule 2, Civil Procedure Code treating the case to be one of mere absence. Wallis, C.J., a member of this Full Bench of the Madras High Court, however, expressed a different view that Rules 2 and 3 were not mutually exclusive. M. Agiah v. Mohd. Abdul Kareem [M. Agiah v. Mohd. Abdul Kareem, 1960 SCC OnLine AP 110 : AIR 1961 AP 201] is a Full Bench decision of the Andhra Pradesh High Court which has adopted the view taken by the Madras High Court in Prativadi case [Prativadi Bhayankaram Pichamma v. Kamisetti Sreeramulu, 1917 SCC OnLine Mad 224 : AIR 1918 Mad 143 (2)] . The Andhra Pradesh High Court has not referred to the decisions of other High Courts which have taken a contrary view. The High Court of Rangoon in Ma Hla C.M.P. No.559 of 2025 Page 10 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 Nyun v. Ma Aye Myint [Ma Hla Nyun v Ma Aye Myint, 1937 SCC OnLine Rang 288 : AIR 1937 Rang 437] , the High Court of Nagpur in Bhioraj Jethmal v. Janardhan Nagorao [Bhioraj Jethmal v. Janardhan Nagorao, 1933 SCC OnLine MP 72 : AIR 1933 Nag 370] and Judicial Commissioner’s Court of Bhopal in Hashmat Rai v. Lal Chand [Hashmat Rai v. Lal Chand, AIR 1952 Bhop 43 (JCC)] have adopted the same view as the High Court of Madras. 9. The other view taken by the Calcutta High Court in Mariannissa v. Ramkalpa Gorsin [Mariannissa v. Ramkalpa Gorsin, ILR (1907) 34 Cal 235] considered the relationship between Sections 157 and 158 of the Code of Civil Procedure, 1882, which correspond to Order 17 Rules 2 and 3, respectively, of the Code of Civil Procedure of 1908 and expressed the view that the existence of material was necessary for the application of Section 158 which corresponds to Rule 3 of Order 17. In this case issues were framed and after various adjournments the case came up for hearing on 10-3-1905. The plaintiff had asked for and obtained process for witnesses but as they did not appear on the date fixed for trial the plaintiff prayed for the issue of warrant of arrest for one of them. This application was refused. The pleader for the plaintiff thereupon intimated to the Court that he had no further instructions to appear in the case and the Subordinate Judge dismissed the suit, for want of prosecution. When the plaintiff made an application to set aside the order of dismissal under Section 102 (Order 9 Rule 8) the defendant took a preliminary objection that the suit had been dismissed not under Section 102 but under Section 158 (Order 17 Rule 3) and consequently the remedy of the plaintiff was by way of review and not for restoration. The C.M.P. No.559 of 2025 Page 11 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 plaintiff eventually appealed to the High Court. The learned Judges observed— ‘It is obvious that the scope of Section 157 is quite distinct from that of Section 158. Section 158 appears to contemplate a case in which the Court has materials before it to enable it to proceed to a decision of the suit. … what Section 158 provides is, that the mere fact of a party making default in the performance of what he was directed to would not lead to the dismissal of the plaintiff’s suit, if he was the party in default, or the decreeing of the claim against the defendant, if the defendant was the person, who made the default; the words “notwithstanding such default” clearly imply that the Court is to proceed with the disposal of the suit in spite of the default, upon such materials as are before it. Section 157, on the other hand, speaks of the disposal of the suit, and undoubtedly includes cases in which there might not be any materials before the Court to enable it to pronounce a decision on the merits, for instance, if the event contemplated in Sections 97, 98, 99 clause (a) and Section 102 happens, although, if the contingency mentioned in Section 100, clause (a) happens, there would be materials before the Court, and a decision on the merits.’ ” (emphasis supplied) 45. We may also look into the Full Bench decision of the Bombay High Court in Shidramappa Irappa Shivangi [Shidramappa Irappa Shivangi v. Basalingappa Kushnapa Kumbhar, 1943 SCC OnLine Bom 16 : AIR 1943 Bom 321 : ILR 1944 Bom 1] wherein the following was held : (SCC OnLine Bom) “The general provisions about appearances of parties in Order 3 Rule 1, are that a party can appear in person or by a recognised agent or by a pleader appearing, C.M.P. No.559 of 2025 Page 12 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 applying or acting on his behalf. These are made subject to any other express provision of law. Such an express provision is in Order 5 Rule 1, where the mode of appearance by a defendant is stated to be either (a) in person, or (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions. The forms of summons given in Forms 1 and 2 of Appendix B to the First Schedule also contain the same instructions. Where, therefore, the defendant does not appear in person and there is none else to instruct his pleader, the only person through whom he can be said to appear is a pleader who must be duly instructed and able to answer all material questions. It follows, therefore, that if the pleader is present in court on any day of hearing but has no instructions as to how to proceed with the case, there is no appearance of the defendant. Whether a pleader is duly instructed is a question of fact, but if he refuses to take part in the trial on the ground that he has no instructions and then withdraws from the case either after, or without making, an application for adjournment, all further proceedings against the defendant become ex parte. If the court thereafter asks the plaintiff to lead evidence and then passes a decree in his favour, it must be regarded as an ex parte decree. The defendant would then be at liberty to apply to set it aside under Order 9 Rule 13.” 46. In Gopi Kishan [Gopi Kishan v. Ramu, 1964 SCC OnLine Raj 1 : AIR 1964 Raj 147] the Full Bench of the Rajasthan High Court gave an illustration as to when Rule 2 or Rule 3 of Order 17 would apply. We quote the relevant observations of the Full Bench as under : (SCC OnLine Raj paras 18-19) C.M.P. No.559 of 2025 Page 13 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 “18. Rule 2 confers discretion in the Court, in the event of a party being absent, either to dispose of the suit in one of the modes directed by Order 9 or to make such other order as it thinks fit. Rule 3, however, envisages a situation where a party to whom time has been granted for the production of evidence or for the performance of any other act necessary to the further progress of the suit and such party fails to produce the evidence or to perform the act for which time had been allowed the Court may notwithstanding such default proceed to decide the suit forthwith. When a party to whom time has been granted for the production of evidence or for the performance of any other act also does not appear it is clearly a case of double default. Not only the party has failed to do that for which time was granted to it but has also failed to appear. In our opinion this double default does not take away the case from the purview of Order 17 Rule 3. We are unable to agree with the interpretation given in the Full Bench Madras case [Prativadi Bhayankaram Pichamma v. Kamisetti Sreeramulu, 1917 SCC OnLine Mad 224 : AIR 1918 Mad 143 (2)] that Rules 2 and 3 are mutually exclusive. There can be cases as the one before us, where time was granted to a party to produce evidence but the party not only failed to produce evidence but also absented itself and it cannot be said that Order 17 Rule 3 cannot apply to such a case. 19. In a long series of decisions adopting the view [Mariannissa v. Ramkalpa Gorsin, ILR (1907) 34 Cal 235] of the Calcutta High Court for diverse reasons it has been held that the existence of material is necessary for deciding a suit under Order 17 Rule 3. The language of the statute does not expressly indicate the existence of material as an essential condition for its application. This interpretation C.M.P. No.559 of 2025 Page 14 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 has been influenced apparently by the word “decide” to mean decide on merits. In Ramkaran case [Ramkaran v. Radhamohan, 1952 SCC OnLine Raj 108 : ILR (1953) 3 Raj 798] the learned Judges of this Court felt persuaded by the provisions of Order 10 Rule 4 of the Code of Civil Procedure to hold that the existence of material was necessary and because only pleadings and issues were on record they opined that the dismissal should be construed to be one under Order 17 Rule 2. On the other hand in Amarsingh case [Amar Singh v. Nand Kanwar, 1953 SCC OnLine Raj 173 : 1953 RLW 365] , the learned Judges were of the view that where the plaintiff failed to discharge the burden placed on him in the suit, the logical conclusion was that the suit should be dismissed whether material existed or not. No decision has attempted to indicate the exact kind of quantum of material which is requisite for the operation of Order 17 Rule 3. The difficulty of such a task is easy to appreciate. In the wide varieties of cases and complexities of situation formulation of universal rules, is a task not easy of attainment. The indications, however, are as in Ramkaran case [Ramkaran v. Radhamohan, 1952 SCC OnLine Raj 108 : ILR (1953) 3 Raj 798] , that the material may mean “evidence” on record. The obvious question which arises next is whether can absence of evidence altogether exclude the applicability of Order 17 Rule 3? It is difficult to lay down such a wide proposition. The intention of Order 17 Rule 3 as has been noticed is that a party seeks time to produce evidence or do something to further the progress of a suit and makes default in doing either, a Court may decide the suit forthwith. To our mind, it is too wide a proposition to lay that in no case where evidence has not been led Rule 3 would be inapplicable. The test should be whether the C.M.P. No.559 of 2025 Page 15 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 Court before whom the suit is pending on the basis of material before it is in a position to decide the suit forthwith, the default of a party notwithstanding. The pleadings of the parties and issues arising therefrom may in some cases enable a Court to decide the suit forthwith. Suppose in a suit on a promissory note the execution of which has not been denied by the defendant and the defendant pleads want of consideration seeking time to produce evidence. Time is allowed but he makes default in producing evidence. Can the suit be not decided in view of the legal presumption contained in Section 118 of the Negotiable Instruments Act? In a converse case the defendant denies execution and the plaintiff is granted time to prove execution and he makes default. Can the suit be not decided on the ground of the default made by the plaintiff in discharging the burden of proof placed on him? In the first illustration it can perhaps be said that the promissory note execution whereof has been admitted constitutes evidence and there is material on record to attract the applicability of Rule 3. In the second illustration; however, the execution not having been admitted there is obviously no evidence. The plaintiff fails to discharge his duty. Can we say that the suit should be disposed of in accordance with Order 9 as per Order 17 Rule 2? The answer is plainly in the negative for the situations envisaged under Order 9, are different than the one we have in the illustration. Can it be said that the Court may pass such other order as it thinks fit as laid down in Rule 2 of Order 17? Such an order can be no other than to adjourn the case for plaintiff’s absence in a situation such as this. Therefore, if the plaintiff fails to discharge the burden placed on him in view of the pleadings and consequent issues despite the opportunity afforded to him C.M.P. No.559 of 2025 Page 16 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 the case cannot be adjourned for his evidence ad infinitum and the Court at some stage or the other has to decide it for want of evidence. Even in a contested suit issues are sometimes decided for want of evidence and so can the whole suit. Therefore, in our opinion the existence of material does not necessarily mean existence of evidence. If a suit can be decided despite the lack of evidence on the material before it Order 17 Rule 3 can be said to govern the case. Material on record need not be given a technical meaning and equated to evidence. The circumstances of each case will regulate the exercise of discretion vested in a Court. It is for the Court to exercise its discretion and to indicate without ambiguity whether it is exercising its powers under Order 17 Rule 3 or not. It is correct that the application of Rule 3 restricts the future remedies of a defaulting party and is a stringent provision, and, therefore, it should be applied with circumspect caution and judicial restraint. Ramkaran case [Ramkaran v. Radhamohan, 1952 SCC OnLine Raj 108 : ILR (1953) 3 Raj 798] , therefore, has to be read with the aforesaid modification. No exception can, however, be taken to the reasoning adopted in Amarsingh case [Amar Singh v. Nand Kanwar, 1953 SCC OnLine Raj 173 : 1953 RLW 365] .” (emphasis supplied) 47. Thus the Full Bench in Gopi Kishan case [Gopi Kishan v. Ramu, 1964 SCC OnLine Raj 1 : AIR 1964 Raj 147] took the view that if the plaintiff fails to discharge the burden placed on him in view of the pleadings and consequent issues despite the opportunity afforded to him, the case may not be adjourned for his evidence ad infinitum and the court must at some stage or the other decide for want of evidence. The Full Bench took the C.M.P. No.559 of 2025 Page 17 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 view that the existence of material would not necessarily mean existence of evidence. If the suit can be decided despite the lack of evidence on the material before it, then in such circumstances Order 17 Rule 3CPC would govern the case. 48. The aforesaid dictum as laid by the Rajasthan High Court appears to be in conflict with the decision of this Court in Prakash Chander Manchanda v. Janki Manchanda [Prakash Chander Manchanda v. Janki Manchanda, (1986) 4 SCC 699] , wherein this Court observed as under : (SCC pp. 702-703, paras 6-7) “6. …It is clear that in cases where a party is absent only course as mentioned in Order 17 Rule (3)(b) is to proceed under Rule 2. It is therefore clear that in absence of the defendant, the court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as it now stands also clearly lays down that if any one of the parties fail to appear, the court has to proceed to dispose of the suit in one of the modes directed under Order 9. The Explanation to Rule 2 gives a discretion to the court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure. It is therefore clear that after this amendment in Order 17 Rules 2 and 3 of the Code of Civil Procedure there remains no doubt and therefore there is no possibility of any controversy. In this view of the C.M.P. No.559 of 2025 Page 18 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 matter it is clear that when in the present case on 30-10- 1985 when the case was called nobody was present for the defendant. It is also clear that till that date the plaintiff’s evidence has been recorded but no evidence for defendant was recorded. The defendant was only to begin on this date or an earlier date when the case was adjourned. It is therefore clear that up to the date i.e. 30-10-1985 when the trial court closed the case of defendant there was no evidence on record on behalf of the defendant. In this view of the matter therefore the Explanation to Order 17 Rule 2 was not applicable at all. Apparently when the defendant was absent Order 17 Rule 2 only permitted the court to proceed to dispose of the matter in any one of the modes provided under Order 9. 7. It is also clear that Order 17 Rule 3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of defendant was closed nobody appeared for the defendant. In this view of the matter it could not be disputed that the court when proceeded to dispose of the suit on merits had committed an error. Unfortunately even on the review application, the learned trial court went on in the controversy about Order 17 Rules 2 and 3 which existed before the amendment and rejected the review application and on appeal, the High Court also unfortunately dismissed the appeal in limine by one word.” (emphasis supplied) 49. Thus the dictum as laid by this Court in Prakash Chander Manchanda [Prakash Chander Manchanda v. Janki Manchanda, (1986) 4 SCC 699] is that it will be within the discretion of the Court to proceed under Rule 3 even in the absence of evidence but such discretion is limited only in cases C.M.P. No.559 of 2025 Page 19 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 where a party which is opposing has led some evidence or has examined substantial part. 50. Let us apply the aforesaid dictum as laid by this Court to the facts of the present case. In the case on hand, after the first eviction petition was instituted, the defendants therein filed their written statement denying the relationship of landlord and tenant. After the written statement came on record, no further evidence was led by the plaintiffs. All that was on record was in the form of pleadings in the plaint. The Additional Rent Controller took the view that after the written statement came on record, it was the duty of the plaintiffs to establish or prove the landlord tenant relationship and having failed to adduce any evidence, the suit was liable to be dismissed and accordingly was dismissed. The High Court interpreted or rather construed the order of the Additional Rent Controller as one under Rule 3 of Order 17 and, therefore, took the view that the findings as regards the relationship of landlord and tenant could be said to be on merits. 51. We are afraid, the High Court committed an error in taking the view that the order passed by the Additional Rent Controller could be said to be one passed in exercise of powers under Rule 3 of Order 17CPC. 52. The power conferred on courts under Rule 3 of Order 17 CPC to decide the suit on the merits for the default of a party is a drastic power which seriously restricts the remedy of the unsuccessful party for redress. It has to be used only sparingly in exceptional cases. Physical presence without preparedness to co-operate for anything connected with the progress of the case serves no useful purpose in deciding the suit on the merits and it is worse than absence. In any contingency, the discretion C.M.P. No.559 of 2025 Page 20 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 is always with the Court to resort to Rule 2 or 3, respectively, or to grant an adjournment for deciding the suit in a regular way in spite of default. Rules 2 and 3, respectively, are only enabling provisions. In order to decide the suit on the merits, the mere existence of the conditions enumerated in Rule 3 alone will not be sufficient. There must be some materials for a decision on the merits, even though the materials may not be technically interpreted as evidence. Sometimes the decision in such cases could be on the basis of pleadings, documents and burden of proof. Anyhow, it is appreciable for the Court to indicate by the judgment that the decision is for default or on the merits. The only alternative of the Court in cases covered by Rule 3 or the Explanation to Rule 2 is not to decide on the merits alone. If such an interpretation is given, it will amount to an unjustified preference to one who purposely absents than to one who presents but unable to proceed with the case. “Appearance” and “presence” have well-recognised meanings. They imply presence in person or through pleader properly authorised for the purpose of conducting the case. Rule 3 comes into play only when presence is to proceed with the case, but default is committed in any one of the three ways mentioned in Rule 2 or Explanation to Rule 2 is extracted. Those are cases in which some materials are there for the court to decide the case on the merits and not cases where decision could only be for default. That is clear from a combined reading of Rules 2 and 3, respectively, and the Explanation. In this case, none of these conditions were present and the decision was evidently for default. Rule 2 alone is attracted. (See : R. Ravindran v. M. Rajamanickam [R. Ravindran v. M. Rajamanickam, 2006 SCC OnLine Mad 169] ) C.M.P. No.559 of 2025 Page 21 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 53. The order passed by the Rent Comptroller dated 27-1-1998 referred to in para 6 of this judgment, has a different angle too. Let us once again read the order passed by the Rent Controller closely. The order is in two parts. In the first part, the Rent Controller says that the counsel for the plaintiff is present. Then, he proceeds to observe that the counsel for the plaintiff made a statement that no witness has come today nor they were summoned. The Rent Controller, further, notes that on none of the grounds further adjournment has been prayed for. Thereafter, he states that the last opportunity was granted to the plaintiff on 9-9-1997 and thereafter, on 1-11-1997. However, the plaintiff did not care to call his witnesses. In such circumstances, the Rent Controller closed the eviction petition proceedings. The exact words used by the Rent Controller in the order dated 27-1-1998 are:“the PE is thus closed.” In the second part of the order, the Rent Controller, thereafter, proceeds to observe that since the relationship of landlord-tenant is under dispute and the plaintiff has failed to produce any evidence to establish such relationship, he did not find any good reason to fix the case further for recording of evidence. In such circumstances, he dismissed the eviction petition, as the plaintiff could be said to have failed to establish his case. In the last, he observed that the file be consigned. 54. At the stage of hearing of the case, Order 17 CPC, applied. Under that Order on a date of adjourned hearing, if a party was absent, the Court either would act under Order 9 or otherwise as it thought fit; or if a party was present but it did not produce evidence, it would proceed to decide the suit forthwith without benefit of evidence. This last thing tantamounts that the Court was to say whether the suit was or was not proved, either wholly or in part and to pass the decree accordingly. C.M.P. No.559 of 2025 Page 22 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 55. The moot question is whether the eviction petition was dismissed for default which dismissal would certainly bar a fresh suit if instituted on the same cause of action [Ed. : as per Order 9 Rule 9CPC.]. The words, which we have quoted above, certainly do not mean dismissal either on merits or on default. It was argued before us that the order should only be taken to mean what an order under Order 17 can possibly be and nothing else. We are not impressed by such submission. The order did not purport to be one of dismissal for default or on merits and it cannot be taken to mean other than what it purported to be. It is in ordinary phraseology; not legal phraseology and it cannot be divested of its ordinary meaning. Its ordinary meaning is that the proceeding was closed and the suit would not count as a pending one. The later description would be redundant if the order was one of final disposal of the suit. The order did not purport to be a final disposal of the suit. It merely stopped the proceedings. It did nothing more. This is not final decision of the suit within the meaning of Order 9 Rule 8 and Order 17 Rule 3, respectively, of the CPC. 56. In the result, the appeal succeeds and is hereby allowed. The impugned judgment [Braham Prakash v. Chando Devi, 2010 SCC OnLine Del 4789] and decree is, therefore, set aside. Needless to add two things. First, we have not expressed any opinion on rival contentions regarding the applicability or otherwise of the principle of res judicata or for that matter any other contentious issue in the pending suit. Secondly, nothing stated in this judgment will prevent the defendants concerned from requesting the Court to decide such an issue as a preliminary issue. Such an application would obviously be decided on its merits about which also we expressed no opinion. The suit is revived.” C.M.P. No.559 of 2025 Page 23 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 12. In the given facts of the present case at hand, it is seen that the prayer for time of the Plaintiff is impliedly rejected for two reasons, one for non-payment of cost and secondly, for not giving attendance of his witness. Thus, the court has relied the provisions under Order 17 to dismiss the suit with observation that such power is exercised by him invoking the inherent power under Section 151 of the C.P.C. Said observation by invocation of power under Section 151 of the C.P.C. by the court created confusion between the Plaintiffs either to proceed under Order 9 or to challenge the same in the higher forum. Taking note of the fact that the party was present in the court, but his witness was not and the cost as directed previously by the court was not paid by the Plaintiffs, the question arises that, whether the court was right to dismiss the suit invoking its inherent power. 13. Rule 3(a) of Order 17 prescribes the court to proceed to decide the suit forthwith if the parties are present. Here in the instant case, it is not that either party to the suit was absent to attract the provisions of Rule 3(b) of Order 17. At the same time, it remains true that the suit is at the stage awaiting commencement of evidence when the Plaintiff was yet to comply with the direction of the court regarding payment of cost. Thus, there was no material before the court except the pleadings C.M.P. No.559 of 2025 Page 24 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 of parties to proceed to decide the suit. The relevant observations from the impugned order are reproduced below:- “The case record is posted today for hearing. Counsels for the parties are present. Counsel for the plaintiff filed a time petition. The suit was posted today for payment of cost and hearing. The plaintiff has neither paid cost nor produces any witness. xx xx xx .. Even though the record is posted today for payment of cost and hearing, the plaintiff has neither paid cost nor cause the attendance of his witness which is necessary to the further progress of the suit, for which time has been allowed. In absence of necessary compliance of the order of the court and without procuring the attendance of his witnesses, the suit cannot effectively proceded further. From the conduct of the plaintiff, it is clearly evident that plaintiff has no interest to proceed with suit. Hence placing reliance on the provision as discussed in the proceeding paragraphs and the decisions of the Hon’ble Apex court and by invoking the inherent jurisdiction of this court laid down in 151 of CPC, the suit stands dismissed. Bench clerk is directed to make necessary entries in the concerned register.” 14. It is clear from the afore-stated order of the trial court that despite presence of the parties before the court, it had not sufficient material to proceed in the suit effectively. As explained by Hon’ble C.M.P. No.559 of 2025 Page 25 of 26 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2025 17:16:46 Apex Court at paragraph – 52 in Prem Kishore v. Brahm Prakash (supra), physical presence without preparedness to co-operate for anything connected with the progress of the case serves no useful purpose in deciding the suit on the merits and it is worse than absence and in any contingency, the discretion is always with the Court to resort to Rule 2 or 3, respectively, or to grant an adjournment for deciding the suit in a regular way in spite of default. Taking into account such factual position of the case at hand, the order of dismissal of the suit can be termed well within the scope of Order 17 Rule 2 of the C.P.C. and therefore, the parties have the liberty to proceed under Order 9 of the C.P.C.
Decision
15. With such observation, the C.M.P. is disposed of granting liberty to the Plaintiff (Petitioner) to proceed under Order 9 of the C.P:C. for restoration of the suit in accordance with law. In the event, such a petition under Order 9 Rule 9 C.P.C. is filed by the Petitioner (Plaintiff) within a period of six weeks from today, the question of limitation may be considered liberally. (B.P. Routray) Judge B.K. Barik/Secretary C.M.P. No.559 of 2025 Page 26 of 26