Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | r.13 Code of Civil Procedure 1908 – Explanation to Or. XVII r.2 and Or. IX |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Act(s) Referred | Limitation Act, 1963 (36 of 1963) Code of Civil Procedure, 1908 (5 of 1908) |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Issue for consideration: Whether the High Court committed an errorin applying the explanation to Or. XVII, r.2 CPC and based upon it heldthat an application u/Or. IX Rule 13 CPC would not be maintainable as thepresence of the defendant would be deemed to be recorded at the time ofdisposal of the suit.Code of Civil Procedure, 1908 – Explanation to Or. XVII, r.2 andOr. IX, r.13:Held : At the stage when plaintiff ’s evidence was being led, counselfor defendants withdrew his vakalatnama – Trial Court directed to proceedu/Or. XVII, r.2 CPC against defendants and decreed suit ex parte – TrialCourt allowed application of defendants u/Or. IX, r.13 – However, HighCourt held application u/Or. IX Rule 13 CPC would not be maintainableand applied explanation u/Or.XVII, r.2 CPC – The explanation to Or. XVII,r.2 in the instant case could have been invoked only if the plaintiff , afteradducing his evidence or substantial evidence, failed to appear, the Courtcould have recorded his presence while disposing of the suit – But, oncethe defendant had not led any evidence at all, the explanation could not beinvoked as against the defendant/appellant – The High Court committed anerror in applying the explanation to Or. XVII, r. 2 CPC and based upon itholding that an application u/Or. IX, r.13 CPC would not be maintainable asthe presence of the defendant would be deemed to be recorded at the timeof disposal of the suit – Thus, the impugned order of the High Court is setaside – Trial Court to proceed and decide the Special Civil Suit on its ownmerits, after giving due opportunities to the parties. [Paras 4, 5, 6, 7 and 20] Code of Civil Procedure, 1908 – Or. XVII, r.2 – At the stage whenplaintiff ’s evidence was being led,counsel for defendants withdrew hisvakalatnama – Trial Court directed to proceed u/Or. XVII, r.2 CPCagainst defendants and decreed suit ex parte – Propriety of:Held : As a matter of fact, once the counsel had withdrawn hisVakalatnama, in normal course, the Trial Court ought to have issued notice tothe defendants to engage another counsel, which it did not do and proceededex parte – The Trial Court committed an error in doing so. [Para 21]Code of Civil Procedure, 1908 – Or. XVII, r.2 – Discernible under:Held : What is discernible is that u/Or. XVII, r.2, the Court wouldproceed to pass orders with respect to any of the parties being absent or boththe parties being absent – Whereas the explanation is confi ned to recordthe presence of that party and that party alone, which has led evidence orsubstantial evidence and has thereafter failed to appear. [Para 19] |
Judge | Hon'ble Mr. Justice Vikram Nath |
Neutral Citation | 2023 INSC 732 |
Petitioner | Y. P. Lele |
Respondent | Maharashtra State Electricity Distribution Company Ltd. & Ors. |
SCR | [2023] 11 S.C.R. 141 |
Judgement Date | 2023-08-16 |
Case Number | 5155 |
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