Supreme Court suggests using the drastic power of Order 17 Rule 3 CPC sparingly

Supreme Court suggests using the drastic power of Order 17 Rule 3 CPC sparingly

Chides the high court for allowing the revision petition filed by the tenant and rejecting the landlord’s plaint

The Supreme Court has held that under Order 17 of the Civil Procedure Code 1908 (CPC), if a party was absent, it would proceed as per Order 9 of the CPC. Whilst, if a party was present, but it did not produce evidence, the case would be decided without the benefit of evidence.

The bench of Justice Sudhanshu Dhulia and Justice JB Pardiwala was hearing an appeal by a landlord aggrieved by the high court order. The court had allowed the revision petition filed by the defendant (tenant) and rejected the plaint under the provisions of Order 7 Rule 11 of CPC. It was done on the ground that the eviction petition was barred by the principles of res judicata.

The apex court observed, “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 17 of the CPC."

It further stated, "The power conferred on the courts under Rule 3 of Order 17 of the 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.

The bench added, “The physical presence, without preparedness to cooperate 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.”

Thus, the Supreme Court allowed the appeal and the case was revived.