Code of Civil Procedure, 1908 (CPC)
Adjournment: Order XVII Rule 2 and Rule 3 Distinguished
Order XVII of the Code of Civil Procedure, 1908 deals with what happens when a hearing is adjourned and the adjournment is wasted. Two rules answer that, and which one applies decides the litigant's fate. Under Rule 2, the court proceeds as on a non-appearance, under Order IX, and the party may apply for restoration. Under Rule 3, the court decides the suit forthwith on the merits, and the only remedy is an appeal. The pivot between them is whether the defaulting party's evidence is already on record. These notes set out both.
The pivot question, and the two very different consequences
1. Order XVII Rule 1: The Power to Adjourn
§ Order XVII Rule 1 (in substance) (1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during the hearing of the suit. (2) In every such case the Court shall fix a day for the further hearing of the suit, and shall make such order as to costs occasioned by the adjournment as it thinks fit. Proviso (a): where sufficient cause is shown, the court may grant time beyond three adjournments, on such terms as to costs as it deems fit. Proviso (b): the fact that the pleader is engaged in another court is not a ground for adjournment. |
2. Rule 2: Proceeding as on a Non-Appearance
§ Order XVII Rule 2 with its Explanation 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, and may dispose of it on the merits. |
§ What follows from Rule 2 • The court proceeds under Order IX. If the plaintiff is absent and the defendant appears, the suit is dismissed under Order IX Rule 8; if the defendant is absent, the suit proceeds ex parte under Rule 6. • The remedy is restoration. A dismissal under Rule 8 is set aside under Order IX Rule 9 on sufficient cause; an ex parte decree under Order IX Rule 13. • No decision on the merits is given. That is what makes restoration the appropriate remedy: nothing has been decided that an appeal could usefully attack. • The Explanation is the bridge. Where the absent party's evidence is already recorded, the court may proceed as if he were present and dispose of the case on the merits, which takes the situation out of Order IX and into Rule 3 territory. |
3. Rule 3: Deciding the Suit Forthwith
§ Order XVII Rule 3 (in substance) Where any party to a suit to whom time has been granted fails to produce his evidence, or 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. |
§ Three points • It is a decision on the merits. The court decides the suit on the material before it, notwithstanding the default, and the result is a decree. • The remedy is an appeal. There is no restoration, because there has been an adjudication. A party who says he was wrongly shut out must challenge the decree under Section 96. • Clause (b), added in 1976, resolves the old conflict. Where the defaulting party is absent, the court proceeds under Rule 2 rather than deciding forthwith, unless the Explanation to Rule 2 applies because his evidence is already on record. |
4. The Two Compared
Basis | Order XVII Rule 2 | Order XVII Rule 3 |
|---|---|---|
The trigger | A party fails to APPEAR on the adjourned date | A party to whom time was granted fails to PRODUCE EVIDENCE or perform the act for which time was allowed |
What the court does | Proceeds in one of the modes directed by Order IX, or makes such other order as it thinks fit | Decides the suit FORTHWITH, notwithstanding the default, where the parties are present |
Is there a decision on the merits? | No | Yes |
What is produced | A dismissal under Order IX Rule 8, or an ex parte decree under Rule 6 | A decree on the merits |
The remedy | RESTORATION under Order IX Rule 9, or setting aside under Rule 13, on sufficient cause | APPEAL under Section 96; there is no restoration |
The pivot | The defaulting party's evidence is NOT on record | His evidence, or a substantial part of it, IS on record: the Explanation to Rule 2 |
Where the party is absent | Rule 2 applies directly | Rule 3(b): the court proceeds under Rule 2 instead, unless the Explanation applies |
5. Why the Distinction Decides the Case
i. The remedies are mutually exclusive. A party who was dealt with under Rule 3 and applies for restoration will be told there is a decree on the merits and his remedy is an appeal. A party dealt with under Rule 2 who files an appeal will be told there is nothing on the merits to appeal against.
ii. Limitation differs. Restoration under Order IX Rule 9 must be applied for within thirty days under Article 122; setting aside an ex parte decree within thirty days under Article 123. An appeal has its own period under Articles 116 and 117.
iii. The standard differs. Restoration requires sufficient cause for the non-appearance, and the court is concerned only with the explanation. An appeal requires the appellant to show that the decree is wrong on the material.
iv. The court's own record matters. Whether the order recites that the suit was decided on the merits, or that the party was absent and the court proceeded under Order IX, is the first thing an appellate court looks at.
6. Landmark Points
- Order XVII Rule 1 with its proviso. No adjournment shall be granted more than three times to a party during the hearing of the suit, and costs are imposed for each.
- Order XVII Rule 2. On a failure to appear, the court proceeds in one of the modes directed by Order IX.
- The Explanation to Rule 2. Where the evidence or a substantial portion of it has already been recorded, the court may proceed as if the absent party were present and dispose of the case on the merits.
- Order XVII Rule 3(a). Where the parties are present and a party fails to produce evidence for which time was allowed, the court may decide the suit forthwith.
- Order XVII Rule 3(b), added in 1976. Where a party is absent, the court proceeds under Rule 2 instead.
- The remedies. Restoration under Order IX for Rule 2; an appeal under Section 96 for Rule 3.
7. Frequently Asked Questions
What is the difference between Order XVII Rule 2 and Rule 3?
Rule 2 applies where a party fails to appear on the adjourned date, and the court proceeds under Order IX, producing a dismissal or an ex parte decree. Rule 3 applies where a party present has failed to produce his evidence, and the court decides the suit forthwith on the merits.
How do the remedies differ?
Under Rule 2, the remedy is restoration under Order IX Rule 9 or setting aside under Rule 13, on sufficient cause. Under Rule 3, there is a decree on the merits, and the only remedy is an appeal under Section 96.
What is the pivot between the two rules?
Whether the defaulting party's evidence, or a substantial part of it, is already on record. The Explanation to Rule 2 allows the court in that case to proceed as if he were present and to dispose of the case on the merits, which places the matter under Rule 3.
What happens if the defaulting party is absent?
Order XVII Rule 3(b), added in 1976, directs the court to proceed under Rule 2 in that case, unless the Explanation to Rule 2 applies because his evidence is already on record, in which case the case may be disposed of on the merits.
How many adjournments may a party get?
Under the proviso to Order XVII Rule 1(1), not more than three during the hearing of the suit. The court may grant further time where sufficient cause is shown, on such terms as to costs as it deems fit, and the engagement of a pleader in another court is not a ground.
Why does the classification matter so much?
Because the remedies are mutually exclusive and time-bound. A party treated under Rule 3 who applies for restoration will be told his remedy is an appeal, and a party treated under Rule 2 who appeals will be told there is nothing on the merits to challenge.
8. Related Topics in This CPC Series
- Order XVII: Adjournments
- Order IX: Appearance and Non-Appearance of Parties
- Ex Parte Decree and Ex Parte Proceedings Distinguished
- Costs under Sections 35, 35A, 35B and Order XX-A