Under which circumstances the court can decide a suit on merit if any party fails to adduce further evidence?

 The power conferred on Courts Under Rule 3 of Order 17 of the Code of Civil Procedure 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 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, MANU/TN/8351/2006) {Para 52}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1948 of 2013

Decided On: 29.03.2023

Prem Kishore and Ors. Vs. Brahm Prakash and Ors.

Hon'ble Judges/Coram:

Sudhanshu Dhulia and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Citation:  MANU/SC/0327/2023.

Read full Judgment here: Click here.

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