Powers Under Order 17 Rule 3 CPC Are Drastic, To Be Used Sparingly In Exceptional Cases: Affirms SC
The Supreme Court has held that power under Order 17 Rule 3 CPC is drastic and can be used sparingly in exceptional cases.
The Bench of Justice Sudhanshu Dhulia and Justice JB Pardiwala observed, "power conferred on 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. 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".
Before the Court was an appeal impugning the decree by which the plaint filed by the appellant's father in an eviction petition was rejected under Order 7 Rule 11 on the ground of being barred by the principle of res judicata. The moot question before the bench was whether the eviction petition was dismissed for default which dismissal would certainly bar a fresh suit if instituted on the same cause of action.
The Supreme Court in its judgment while relying on the various precedents held that 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.
The Court while allowing the appeal held that the impugned order passed by the rent controller in the first eviction petition preferred by the appellant's father 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 and held that the order.
The Court while interpreting the order passed by the rent controller in the first eviction proceedings said "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 Court held that 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 resply of the CPC"
AOR Mohan Pandey appeared for the Appellants wherein AOR Ajay Kumar Talesara appeared for the Respondents.
The appeal before the Apex Court was filed at the instance of the original plaintiff, who being a landowner had filed an eviction petition against the respondent under the Delhi Rent Control Act which came to be dismissed for not establishing the case and proving the landlord-tenant relationship due to non-appearance of the appellant's father.
The appellant after their father's demise moved another eviction petition which was rebutted by the respondents for being barred by the principle of res judicata and hence liable to be rejected under Order 7 rule 11 as the appellant's father couldn't establish the landlord-tenant relationship in the earlier disposed of the eviction petition. The rent controller declined the defence as he didn't find the cause of action to be the same and held that there was no finding on merits in the earlier eviction petition.
The findings of the rent controller were reversed by the High Court in a revision petition which held that having been afforded an opportunity to lead evidence and having failed to produce any evidence in the Court, it has to be taken as a decision on merits under Order XVII Rule 3 of the CPC for the purpose of Section 11 of the Code and held that the second eviction petition filed by the respondents is liable to be rejected being barred by the principles of res judicata, which gave rise to the present civil appeal before this Court.
Court after considerable analysis, held in the judgment that "plea of res judicata is founded on proof of certain facts and then applying the law to the facts so found. It is, therefore, necessary that the foundation for the belief must be laid in the pleadings and then the issue must be framed and tried." The Court held that High Court, therefore, committed an error in rejecting the plaint.
The Court noted that 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.
It was held that "power conferred on 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. 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."
The Court in the interpretation of the order of the rent controller in the first eviction petition held that the dismissal was not on merits. The Court said "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"
Accordingly, the appeal was allowed and the impugned judgment was set aside.
Case Title: Prem Kishore & Ors. v. Brahm Prakash & Ors.
