PREM KISHORE & ORS. versus BRAHM PRAKASH & ORS

[2023] 4 S.C.R. 635

PREM KISHORE & ORS.

BRAHM PRAKASH & ORS.(Civil Appeal No. 1948 of 2013)

MARCH 29, 2023

[SUDHANSHU DHULIA AND J. B. PARDIWALA, JJ.]

Code of Civil Procedure, 1908 – s. 11, Or. 7 R. 11, Or, 9 R. 8,Or. 17 R. 3 – Delhi Rent Control Act, 1958 – s. 14(1)(a) – Thelandlord (original plaintiff) filed an eviction petition against therespondent (tenant) – The respondent filed the written statementand denied the relationship of landlord and tenant – Thereafter, thelandlord failed to appear before the Rent Controller for the purposeof establishing the relationship of landlord and tenant between theparties – Rent controller proceeded to dismiss the eviction petitionand the same was not challenged by way of appeal – After thedemise of the landlord, the appellant (successors in interest) filedanother eviction petition – The respondent raised the plea of resjudiciata u/s 11 and preferred an application under Or. 7 R. 11 forrejection of plaint – Additional Rent Controller declined to rejectthe plaint – Aggrieved by it, the respondent preferred civil revisionpetition before the High Court and the same was allowed by theHigh Court by holding that the fresh eviction petition filed by theappellant is hit by principles of res judicata as landlord was havingbeen afforded an opportunity to lead evidence and having failed toproduce any evidence in the Court, it has to be taken as decisionon merits under Or.17 Rule 3 for the purpose of Section 11 of theCode – On appeal, held: High Court committed an error in takingthe view that the order passed by the Additional Rent Controllercould be said to be one passed in exercise of powers under Rule 3of Or. 17 – The order did not purport to be one of dismissal fordefault or on merits and it cannot be taken to mean other than whatit purported to be – Further, the order of the Rent Controller did notpurport to be final disposal of the suit and what it did was that itmerely stopped the proceedings and it did nothing more and thereforethis is not final decision of the suit within the meaning of Or. 9 Rule8 and Or. 17 Rule 3 resply of the CPC – Suit is revived.

DEF

ACode of Civil Procedure, 1908 – When it would not be Resjudicata in subsequent suit – Held: Where the former suit is dismissedby the trial court for want of jurisdiction, or for default of theplaintiff’s appearance, or on the ground of non-joinder or mis-joinder of parties or multifariousness, or on the ground that thesuit was badly framed, or on the ground of technical mistake, orBfor failure on the part of the plaintiff to produce probate or letter ofadministration or succession certificate when the same is requiredby law to entitle the plaintiff to decree, or for failure to furnishsecurity for costs, or on the ground of improper valuation, or forfailure to pay additional court fee on plaint which wasCundervalued, or for want of cause of action, or on the ground thatit is premature and the dismissal is confirmed in appeal (if any), thedecision, not being on the merits, would not be res judicata in asubsequent suit.

Allowing the appeal, the CourtD

HELD: 1. The guiding principles for deciding an applicationunder Order 7 Rule 11(d) of the CPC can be summarized asfollows:- (i) To reject plaint on the ground that the suit is barredby any law, only the averments in the plaint will have to be referredto; (ii) The defence made by the defendant in the suit must notEbe considered while deciding the merits of the application; (iii)To determine whether suit is barred by res judicata, it isnecessary that (i) the ‘previous suit’ is decided, (ii) the issues inthe subsequent suit were directly and substantially in issue inthe former suit; (iii) the former suit was between the same partiesor parties through whom they claim, litigating under the sameFtitle; and (iv) that these issues were adjudicated and finally decidedby court competent to try the subsequent suit; and (iv) Since anadjudication of the plea of res judicata requires consideration ofthe pleadings, issues and decision in the ‘previous suit’, such aplea will be beyond the scope of Order 7 Rule 11 (d), where onlyGthe statements in the plaint will have to be perused. [Para 33][653-F-H; 654-A-B]

2. The general principle of res judicata under Section 11 ofthe CPC contain rules of conclusiveness of judgment, but for resjudicata to apply, the matter directly and substantially in issue inHthe subsequent suit must be the same matter which was directly

and substantially in issue in the former suit. Further, the suitshould have been decided on merits and the decision should haveattained finality. Where the former suit is dismissed by the trialcourt for want of jurisdiction, or for default of the plaintiff’sappearance, or on the ground of non-joinder or mis-joinder ofparties or multifariousness, or on the ground that the suit wasbadly framed, or on the ground of technical mistake, or for failureon the part of the plaintiff to produce probate or letter ofadministration or succession certificate when the same is requiredby law to entitle the plaintiff to decree, or for failure to furnishsecurity for costs, or on the ground of improper valuation, or forfailure to pay additional court fee on plaint which wasundervalued, or for want of cause of action, or on the ground thatit is premature and the dismissal is confirmed in appeal (if any),the decision, not being on the merits, would not be res judicata ina subsequent suit. [Para 34][654-C-E]

3. In the case on hand, after the first eviction petition wasinstituted, the defendants therein filed their written statementdenying the relationship of landlord and tenant. After the writtenstatement came on record, no further evidence was led by theplaintiffs. All that was on record was in the form of pleadings inthe plaint. The Additional Rent Controller took the view thatafter the written statement came on record, it was the duty of theplaintiffs to establish or prove the landlord tenant relationshipand having failed to adduce any evidence, the suit was liable tobe dismissed and accordingly was dismissed. The High Courtinterpreted or rather construed the order of the Additional RentController as one under Rule 3 of Order 17 and, therefore, tookthe view that the findings as regards the relationship of landlordand tenant could be said to be on merits. The power conferredon Courts under Rule 3 of Order 17 of the CPC to decide thesuit on the merits for the default of party is drastic powerwhich seriously restricts the remedy of the unsuccessful partyfor redress. It has to be used only sparingly in exceptional cases.Physical presence without preparedness to co-operate foranything connected with the progress of the case serves no usefulpurpose in deciding the suit on the merits and it is worse thanabsence. In any contingency, the discretion is always with the

ACourt to resort to Rule 2 or 3 respectively or to grant anadjournment for deciding the suit in regular way in spite ofdefault. Rules 2 and 3 respectively are only enabling provisions.In order to decide the suit on the merits, the mere existence ofthe conditions enumerated in Rule 3 alone will not be sufficient.There must be some materials for decision on the merits, evenBthough the materials may not be technically interpreted asevidence. Sometimes the decision in such cases could be on thebasis of pleadings, documents and burden of proof. Anyhow, it isappreciable for the Court to indicate by the judgment that thedecision is for default or on the merits. The only alternative ofCthe Court in cases covered by Rule 3 or the explanation to Rule2 is not to decide on the merits alone. If such an interpretation isgiven, it will amount to an unjustified preference to one whopurposely absents than to one who presents but unable to proceedwith the case. ‘Appearance’ and ‘presence’ have well recognisedmeanings. They imply presence in person or through pleaderDproperly authorised for the purpose of conducting the case. Rule3 comes into play only when presence is to proceed with thecase, but default is committed in any one of the three waysmentioned in Rule 2 or explanation to Rule 2 is extracted. Thoseare cases in which some materials are there for the Court toEdecide the case on the merits and not cases where decision couldonly be for default. That is clear from combined reading of Rules2 and 3 respectively and the explanation. In this case, none ofthese conditions were present and the decision was evidently fordefault. Rule 2 alone is attracted. The order did not purport to beone of dismissal for default or on merits and it cannot be taken toFmean other than what it purported to be. It is in ordinaryphraseology; not legal phraseology and it cannot be divested ofits ordinary meaning. Its ordinary meaning is that the proceedingwas closed and the suit would not count as pending one. Thelater description would be redundant if the order was one of finalGdisposal of the suit. The order did not purport to be final disposalof the suit. It merely stopped the proceedings. It did nothingmore. This is not final decision of the suit within the meaning ofOrder 9 Rule 8 and Order 17 Rule 3 resply of the CPC. [Paras50, 52, 55][665-E-G; 666-B-G; 667-F-H; 668-A]

V. Rajeshwari v. T.C. Saravanabava (2004) 1 SCC 551: [2003] 6 Suppl. SCR 927; Kamala & others v. K.T.Eshwara Sa (2008) 12 SCC 661 : [2008] 7 SCR 39;Church of Christ Charitable Trust & EducationalCharitable Society v. Ponniamman Educational Trust(2012) 8 SCC 706 : [2012] 6 SCR 404; Soumitra KumarSen v. Shyamal Kumar Sen (2018) 5 SCC 644; SrihariHanumandas Totala v. Hemant Vithal Kamat (2021) 9SCC 99; B. Janakiramaiah Chetty v. A.K. Parthasarthi& Ors. (2003) 5 SCC 641 : [2003] 3 SCR 369; PrakashChander Manchanda v. Janki Manchanda (1986) 4SCC 699 : [1987] 1 SCR 288 – relied on.

Union of India v. Nanak Singh AIR 1968 SC 1370 :[1968] 2 SCR 887; Satyadhyan Ghosal & Ors. v. Smt.Deorajin Devi & Anr. AIR 1960 SC 941 : [1960] 3SCR 590; Om Prakash Gupta v. Rattan Singh (1964) 1SCR 259; Gulabchand Chhotalal Parikh v. State ofGujarat AIR 1965 SC 1153 : [1965] SCR 547 – referredto.

Har Dayal v. Ram Ghulam AIR (31) 1944 Oudh 39;Nila v. Punun AIR 1936 Lahore 385; GovindossKrishnadoss v. Rajah of Karvetnagar & Anr. AIR 1929Madras 404; Prativadi Bhayankaram Pichamma v. K.Sreeramulu AIR 1918 Mad 143 (FB); Mariannissa v.Ramkalpa Gorsin ILR 34 Cal 235; Gopi Kishan v.Ramu, AIR 1964 Raj 147; Shidramappa IrappaShivangi v. Basalingappa Kushnapa Kumbhar AIR 1943Bom 321 : 1943 SCC Online Bom 16 : ILR 1944 Bom1 (FB); R. Ravindran v. M. Rajamanickam 2006 SCCOnline Mad 169 – referred to.

[2023] 4 S.C.R.

BCIVIL APPELLATE JURISDICTION : Civil Appeal No.1948of 2013.

From the Judgment and Order dated 04.05.2010 of the High Courtof Delhi at New Delhi in CRP No.1332 of 2002.

Mohan Pandey, M/s. Mukesh Kumar Singh and Co., Advs. forCthe Appellants.

Ajay Kumar Talesara, Jamshed Bey, Mudit Talesara, ParvinderChauhan, Advs. for the Respondents.

The Judgment of the Court was delivered by

J. B. PARDIWALA, J.D

This appeal, by special leave, is at the instance of the originalplaintiff (landlord) of an eviction petition filed under the provisions of theDelhi Rent Control Act, 1958 (for short, ‘the Act 1958’) and is directedagainst the judgment and decree passed by the High Court of Delhidated 04.05.2010 in the Civil Revision Petition No. 1332 of 2002 byEwhich the High Court allowed the revision petition filed by the defendant(tenant) thereby rejecting the plaint under the provisions of Order 7 Rule11 of the Code of Civil Procedure (CPC) on the ground that the evictionpetition was barred by the principles of res judicata.

Factual MatrixF

2. The facts giving rise to this appeal may be summaried as under.

3. It is the case of the appellants that the respondents hereinwere inducted as tenants on 27.12.1987 by the father of the appellantsin respect of the property bearing House No. 163 (Old No. 143) situatedat Village Dhakka, Kingsway Camp, Delhi on monthly rent of Rs. 1050/G- excluding the electricity, water and house tax. According to theappellants, the tenancy was for residential purpose. It is also their casethat the rent was duly paid till February, 1993.

4. The father of the appellants served demand notice dated04.03.1996 on the respondents claiming the arrears of rent to the tune of

Rs. 27,800/-. According to the appellants, the notice was duly servedupon the respondents. However, the arrears of the rent was not cleared.

5. In such circumstances referred to above, the father of theappellants filed an eviction petition on 21.05.1996 bearing Eviction PetitionNo. 149 of 1996 under Section 14(1)(a) of the Act 1958.

6. In the said eviction petition, the respondents filed their writtenstatement and denied the relationship of landlord and tenant.

7. It appears from the materials on record that after the writtenstatement was filed by the respondents denying the relationship of landlordand the tenant, the plaintiffs failed to appear before the Rent Controllerfor the purpose of establishing the relationship of landlord and tenantbetween the parties. The plaintiffs were granted numerous opportunitiesto adduce evidence to establish the relationship of landlord and tenant.The record reveals that the last such opportunity granted to the plaintiffsto adduce evidence was on 09.09.1997 and again on 01.11.1997.

8. In such circumstances referred to above, the Rent Controllerproceeded to pass the following order dated 27.01.1998:-

“27.1.1998

Present: Counsel for the Petitioner Sh. Chander Shekhar.

Cl. For Petitioner submits that no witness has come today norsummoned. No ground for further adjournment. Last opportunitywas granted to Petitioner on 9.9.97 & then on 1.11.97. Still thePetitioner has not cared to call witness.

The PE is thus closed.

Since the relationship of Landlord tenant itself is under disputeand the petitioner has failed to adduce any evidence to establishthis fact, I am of the opinion that there is no point in fixing thecase further for RE. The petition is thus dismissed as the petitionerhas failed to establish his case. File be consigned.

R. Kiran Nath

RENT CONTROLLER: DELHI”

A9. It is not in dispute that no appeal was preferred against theaforesaid order dismissing the eviction petition. During the life time ofthe original plaintiff, namely, Samey Singh, no fresh eviction petition underSection 14(1)(a) of the Act 1958 was filed.

10. After the demise of Samey Singh (original plaintiff), theBappellants herein claiming as successors in interest filed another evictionpetition registered as Eviction Petition No. 136 of 2001 against therespondents herein under Section 14(1)(a) of the Act 1958 claiming interalia arrears of rent from 01.03.1993 till the date of issuance of noticei.e. till 18.05.2001. written statement was filed by the respondentsherein taking the stance that Samey Singh (the original plaintiff of theCfirst eviction petition) i.e. the predecessor in interest of the appellantsherein had failed to prove the relationship of landlord and tenant betweenthe parties and in such circumstances, the same cannot be permitted tobe reopened in the second eviction petition as the same would be barredby the principles of res judicata.D11. It appears that the respondents herein preferred an applicationunder the provisions of Order 7 Rule 11 of the CPC stating that theEviction Petition No. 136 of 2001 was barred by the principles of resjudicata and the plaint be rejected accordingly.

12. The Additional Rent Controller declined to reject the plaintEvide order dated 23.07.2002. The Additional Rent Controller whilerejecting the application filed by the respondents for rejecting of theplaint took the view that the second eviction petition filed under Section14(1)(a) of the Act 1958 was based on fresh notice dated 18.05.2001on separate cause of action and that there was no finding on merits asFregards the relationship of landlord and tenant between the parties in theorder dated 27.01.1998 referred to above. The Additional Rent Controllerin such circumstances took the view that the plea of res judicata wasnot tenable in law. The application under Order 7 Rule 11(d) of the CPCwas accordingly rejected.G13. The respondents herein being dissatisfied with the order passedby the Additional Rent Controller challenged the same by filing the CivilRevision Petition No. 1332 of 2002 in the High Court of Delhi.

14. The High Court allowed the civil revision petition and rejectedthe plaint of the Eviction Petition No. 136 of 2001 on the ground that thesame was hit by the principles of res judicata. The High Court whileH

allowing the civil revision Petition filed by the respondents herein observedas under:-

“17. In the present case in hand, Sh. Samey Singh, the predecessor-in-interest of the respondents/landlords failed to produce anyevidence to establish the relationship of landlord and tenant betweenthe parties in the first eviction petition filed by him under Section14(1)(a) of the Act. As the said decision was not taken in appealby any of the parties, the same attained finality. Having beenafforded an opportunity to lead evidence and having failed toproduce any evidence in the Court, it has to be taken as decisionon merits under Order XVII Rule 3 of the Code of Civil Procedurefor the purpose of Section 11 of the Code.18. By filing subsequent eviction petition, the respondents cannotbe permitted to do directly, what they could not do indirectly. Failureto adduce evidence, resulting in dismissal of the claim of therespondents for want of proof, is in reality, decision on merits.Just as if the petitioner therein had produced evidence, which theCourt had considered as inadequate proof and had dismissed itupon the said ground.Applicable to such situation is the legalmaxim, ‘De non apparentibus et non existentibus eadem estratio’. It is rule which applies to those things, which do notappear, and to things which do not exist. So, for maintaining hisright to claim arrears of rent, if Sh.Samey Singh was required toprove that he was the landlord of the petitioner, but he failed to doso, the Rent Controller had no option but to decide the issue againsthim on account of non-production of evidence. In other words,what does not appear, must be regarded as non-existent.

19. In these circumstances, the decision of the Rent Controllerdated 27.01.1998, has to be taken as decision on the merits of thematter. Merely because subsequent cause of action has been pleadedby the respondents in the second eviction petition by claiming arrears ofrent not only for the period for which the first eviction petition was filed,but also for the subsequent period upto 18.05.2001, cannot be groundto hold that the second eviction petition was maintainable. The relationshipof landlord and tenant between the parties was not established in theearlier proceedings and the same point is directly and substantially inissue in the second petition wherein the foundation to claim the arrearsof rent is the stand of the respondents (petitioners therein) that they are

Athe landlords of the petitioner herein. The findings returned by the RentController in his order dated 27.01.1998 passed in the first petition haveto be held to be findings on merits and having been adjudicatedconclusively, are final in nature and act as bar of res judicata on thesecond eviction petition preferred by the respondents.

B20. In view of the aforesaid facts and circumstances, this Court isof the opinion that the impugned order dated 23.07.2002 is not inaccordance with law and cannot be sustained. The said order is thereforeset aside and quashed. The application filed by the petitioner under OrderVII Rule 11 of the CPC is allowed. It is held that the second evictionpetition filed by the respondents under Section 14(1)(a) of the Act isCliable to be rejected being barred by the principles of res judicata.Ordered accordingly.”

(Emphasis supplied)

15. Being dissatisfied with the aforesaid order passed by the HighDCourt, the appellants, claiming to be the lawful owners and landlord ofthe property in question, have come up before this Court by way of thepresent appeal.

Submissions on behalf of the appellants

16. The learned counsel appearing on behalf of the appellantsEvehemently submitted that the High Court committed serious error intaking the view that the second Eviction Petition No. 136 of 2001 wasnot maintainable in law as the same was hit by the principles of resjudicata. He would submit that the plaint could not have been rejectedunder the provisions of Order 7 Rule 11(d) of the CPC as the issue ofFres judicata could be said to be mixed question of law and fact. Hewould submit that there is no averment in the plaint of the Eviction PetitionNo. 136 of 2001 on the basis of which it could be said that the evictionpetition is barred by any provisions of law.

17. The learned counsel further submitted that the High Courtalso committed an error in applying the principles of Order 17 Rule 3 ofGthe CPC as the first order passed by the Rent Controller dated 27.01.1998in the first eviction petition was not on merits and, therefore, no findingcould be said to have been rendered as regards the relationship of landlordand tenant which could be said to be binding between the parties in thesecond eviction petition.H

18. In such circumstances referred to above, the learned counselprays that there being merit in his appeal, the same may be allowed andthe impugned order be set aside.

Submissions on behalf of the respondent No. 1

19. The learned counsel appearing for the respondent No. 1, onthe other hand, vehemently opposed the present appeal by submittingthat no error not to speak of any error of law could be said to have beencommitted by the High Court in passing the impugned order.

20. He would submit that in the first round of litigation, late SameySingh (original plaintiff) was given sufficient time and opportunities bythe Rent Controller to establish the landlord tenant relationship. However,Samey Singh failed to appear before the court and also failed to lead anyevidence in that regard. In such circumstances, the Rent Controller wasjustified in dismissing the eviction petition.

21. The learned counsel would submit that the High Court rightlyobserved that the order dated 27.01.1998 passed by the Rent Controllerin the first round of litigation could be said to be under the provisions ofOrder 17 Rule 3 of the CPC and, if that be so, then the finding that theoriginal plaintiff i.e. Samey Singh was not able to establish the landlordtenant relationship could be said to be on merits. He would submit thatonce such finding has come on record, the appellants later in point oftime claiming through Samey Singh as successors in interest could nothave preferred fresh eviction petition on the very same grounds as thesame would be hit by the principles of res judicata. He would submitthat the High Court rightly rejected the plaint of the eviction petitionunder the provisions of Order 7 Rule 11(d) of the CPC.

22. Learned counsel appearing for the respondent No. 1 in supportof submissions has placed reliance on the following decisions:-

1.Union of India v. Nanak Singh, AIR 1968 SC 1370 :(1968) 2 SCR 887

2.Satyadhyan Ghosal & Ors. v. Smt. Deorajin Devi &Anr., AIR 1960 SC 941 : (1960) 3 SCR 590G

3.Har Dayal v. Ram Ghulam, AIR (31) 1944 Oudh 39

4.Nila v. Punun, AIR 1936 Lahore 385

5.Govindoss Krishnadoss v. Rajah of Karvetnagar & Anr.,AIR 1929 Madras 404

A6.Om Prakash Gupta v. Rattan Singh, (1964) 1 SCR 2597.Gulabchand Chhotalal Parikh v. State of Gujarat, AIR1965 SC 1153

Analysis

23. Having heard the learned counsel for the parties and havinggone through the materials on record, the only question that falls for ourconsideration is whether the High Court was justified in rejecting theplaint of the eviction petition on the ground that the second eviction petitionwas barred by the principles of res judicata.

24. Order 7 Rule 11 of the CPC reads as follows:-C

“11. Rejection of plaint.— The plaint shall be rejected in thefollowing cases:—

(a) where it does not disclose cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, onDbeing required by the Court to correct the valuation within timeto be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint isreturned upon paper insufficiently stamped, and the plaintiff, onbeing required by the Court to supply the requisite stamp-paperEwithin time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint tobe barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9:

Provided that the time fixed by the Court for the correction of thevaluation or supplying of the requisite stamp-paper shall not beextended unless the Court, for reasons to be recorded, is satisfiedthat the plaintiff was prevented by any cause of an exceptionalGnature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court andthat refusal to extend such time would cause grave injustice tothe plaintiff.”

(Emphasis supplied)

25. Order 7 Rule 11(d) of CPC provides that the plaint shall berejected “where the suit appears from the statement in the plaintto bebarred by any law”. Hence, in order to decide whether the suit is barredby any law, it is the statement in the plaint which will have to be construed.The Court while deciding such an application must have due regard onlyto the statements in the plaint. Whether the suit is barred by any lawmust be determined from the statements in the plaint and it is not open todecide the issue on the basis of any other material including the writtenstatement in the case. Before proceeding to refer to precedents on theinterpretation of Order 7 Rule 11(d) CPC, we find it imperative to referto Section 11 of CPC which defines res judicata:-

“11. Res judicata.—No Court shall try any suit or issue in whichthe matter directly and substantially in issue has been directly andsubstantially in issue in former suit between the same parties, orbetween parties under whom they or any of them claim, litigatingunder the same title, in Court competent to try such subsequentsuit or the suit in which such issue has been subsequently raised,and has been heard and finally decided by such Court.”

26. Section 11 of the CPC enunciates the rule of res judicata : acourt shall not try any suit or issue in which the matter that is directly inissue has been directly or indirectly heard and decided in ‘former suit’.Therefore, for the purpose of adjudicating on the issue of res judicata itis necessary that the same issue(that is raised in the suit) has beenadjudicated in the former suit. It is necessary that we refer to the exercisetaken up by this Court while adjudicating on res judicata, before referringto res judicata as ground for rejection of the plaint under Order 7Rule 11. Justice R Lahoti (as the learned Chief Justice then was),speaking for two Judge bench in V. Rajeshwari v. T.C. Saravanabava,(2004) 1 SCC 551, discussed the plea of res judicata and the particularsthat would be required to prove the plea. The Court held that it isnecessary to refer to the copies of the pleadings, issues and the judgmentof the ‘former suit’ while adjudicating on the plea of res judicata:-

“11. The rule of res judicata does not strike at the root of thejurisdiction of the court trying the subsequent suit. It is rule ofestoppel by judgment based on the public policy that there shouldbe finality to litigation and no one should be vexed twice for thesame cause.

x x x x

13. Not only the plea has to be taken, it has to be substantiated byproducing the copies of the pleadings, issues and judgment in theprevious case. May be, in given case only copy of judgment inprevious suit is filed in proof of plea of res judicata and the judgmentcontains exhaustive or in requisite details the statement of pleadingsand the issues which may be taken as enough proof. But as pointedout in Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4SCC 780] the basic method to decide the question of res judicatais first to determine the case of the parties as put forward in theirrespective pleadings of their previous suit and then to find out asto what had been decided by the judgment which operates as resjudicata. It is risky to speculate about the pleadings merely by asummary of recitals of the allegations made in the pleadingsmentioned in the judgment. The Constitution Bench in GurbuxSingh v. Bhooralal [AIR 1964 SC 1810 : (1964) 7 SCR 831]placing on par the plea of res judicata and the plea of estoppelunder Order 2 Rule 2 of the Code of Civil Procedure, held thatproof of the plaint in the previous suit which is set to create thebar, ought to be brought on record. The plea is basically foundedon the identity of the cause of action in the two suits and, therefore,it is necessary for the defence which raises the bar to establish

the cause of action in the previous suit.Such pleas cannot be leftto be determined by mere speculation or inferring by process ofdeduction what were the facts stated in the previous pleadings.Their Lordships of the Privy Council in Kali Krishna Tagore v.Secy. of State for India in Council [(1887-88) 15 IA 186 : ILR16 Cal 173] pointed out that the plea of res judicata cannot bedetermined without ascertaining what were the matters in issuein the previous suit and what was heard and decided. Needless tosay, these can be found out only by looking into the pleadings, theissues and the judgment in the previous suit.”

(Emphasis supplied)

27. This Court in the case of V. Rajeshwari (supra) observedthat the rule of res judicata does not strike at the root of the jurisdictionof the Court trying the subsequent suit. It is rule of estoppal based onthe public policy of achieving finality to litigation. The plea of res judicataHis founded on proof of certain facts and then applying the law to the

facts so found. It is, therefore, necessary that the foundation for thebelief must be laid in the pleadings and then the issue must be framedand tried.

28. At this stage, it would be necessary to refer to the decisionsthat particularly deal with the question whether res judicata can be thebasis or ground for rejection of the plaint. In Kamala & others v. K.T.Eshwara Sa, (2008) 12 SCC 661, the Trial Judge had allowed anapplication for rejection of the plaint in suit for partition and this wasaffirmed by the High Court. Justice S.B. Sinha speaking for the twoJudge Bench examined the ambit of Order 7 Rule 11(d) of the CPC andobserved:-

“21. Order 7 Rule 11(d) of the Code has limited application. Itmust be shown that the suit is barred under any law. Such aconclusion must be drawn from the averments made in the plaint.Different clauses in Order 7 Rule 11, in our opinion, should not bemixed up. Whereas in given case, an application for rejection ofthe plaint may be filed on more than one ground specified in varioussub-clauses thereof, clear finding to that effect must be arrivedat. What would be relevant for invoking clause (d) of Order 7Rule 11 of the Code are the averments made in the plaint. Forthat purpose, there cannot be any addition or subtraction. Absenceof jurisdiction on the part of court can be invoked atdifferentstages and under different provisions of the Code. Order 7 Rule11 of the Code is one, Order 14 Rule 2 is another.

22. For the purpose of invoking Order 7 Rule 11(d) of the Code,no amount of evidence can be looked into. The issues on merit ofthe matter which may arise between the parties would not bewithin the realm of the court at that stage. All issues shall not be-”the subjectmatter of an order under the said provision.

(Emphasis supplied)

The Court further held:-

“23. The principles of res judicata, when attracted, would baranother suit in view of Section 12 of the Code. Thequestioninvolving mixed question of law and fact which mayrequire not only examination of the plaint but also other evidenceand the order passed in the earlier suit may be taken up either as

Aa preliminary issue or at the final hearing, but, the said questioncannot be determined at that stage.

24. It is one thing to say that the averments made in the plaint ontheir face discloses no cause of action, but it is another thing tosay that although the same discloses cause of action, the sameBis barred by law.

25. The decisions rendered by this Court as also by various HighCourts are not uniform in this behalf. But, then the broad principlewhich can be culled out therefrom is that the court at that stagewould not consider any evidence or enter into disputed questionCof fact or law. In the event, the jurisdiction of the court is found to-be barred by any law, meaning thereby, the subjectmatter thereof,the application for rejection of plaint should be entertained.”

(Emphasis supplied)

29. The above view has been consistently followed in line ofDdecisions of this Court. In Church of Christ Charitable Trust &Educational Charitable Society v. Ponniamman Educational Trust,(2012) 8 SCC 706, Justice P. Sathasivam (as the learned Chief Justicethen was), speaking for two judge Bench, observed that:-

“10. […] It is clear from the above that where the plaint does notEdisclose cause of action, the relief claimed is undervalued andnot corrected within the time allowed by the court, insufficientlystamped and not rectified within the time fixed by the court, barredby any law, failed to enclose the required copies and the plaintifffails to comply with the provisions of Rule 9, the court has noFother option except to reject the same. reading of the aboveprovision also makes it clear that power under Order 7 Rule 11 ofthe Code can be exercised at any stage of the suit either beforeregistering the plaint or after the issuance of summons to thedefendants or at any time before the conclusion of the trial.

11. This position was explained by this Court in Saleem Bhai v.GState of Maharashtra [(2003) 1 SCC 557], in which whileconsidering Order 7 Rule 11 of the Code, it was held as under:(SCC p. 560, para 9)

“9. perusal of Order 7 Rule 11 CPC makes it clear that therelevant facts which need to be looked into for deciding an

application thereunder are the averments in the plaint. Thetrial court can exercise the power under Order 7 Rule 11 CPCat any stage of the suit—before registering the plaint or afterissuing summons to the defendant at any time before theconclusion of the trial. For the purposes of deciding anapplication under clauses (a) and (d) of Rule 11 of Order 7CPC, the averments in the plaint are germane; the pleas takenby the defendant in the written statement would be whollyirrelevant at that stage, therefore, direction to file the writtenstatement without deciding the application under Order 7 Rule11 CPC cannot but be procedural irregularity touching theexercise of jurisdiction by the trial court.”

It is clear that in order to consider Order 7 Rule 11, the court hasto look into the averments in the plaint and the same can beexercised by the trial court at any stage of the suit. It is also clearthat the averments in the written statement are immaterial and itis the duty of the Court to scrutinize the averments/pleas in theplaint. In other words, what needs to be looked into in decidingsuch an application are the averments in the plaint. At that stage,the pleas taken by the defendant in the written statement arewholly irrelevant and the matter is to be decided only on the plaintaverments. These principles have been reiterated in RaptakosBrett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] andMayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006) 3SCC 100].”

30. Similarly, in Soumitra Kumar Sen v. Shyamal Kumar Sen,(2018) 5 SCC 644, an application was moved under Order 7 Rule 11of the CPC claiming rejection of the plaint on the ground that the suitwas barred by res judicata. The Trial Judge dismissed the applicationand the judgement of the Trial Court was affirmed in revision by theHigh Court. Justice A.K. Sikri, while affirming the judgment of the HighCourt, held:-

“9. In the first instance, it can be seen that insofar as relief ofpermanent and mandatory injunction is concerned that is basedon different cause of action. At the same time that kind of reliefcan be considered by the trial court only if the plaintiff is able toestablish his locus standi to bring such suit. If the avermentsmade by the appellant in their written statement are correct, such

suit may not be maintainable inasmuch as, as per the appellant ithas already been decided in the previous two suits that Respondent1-plaintiff retired from the partnership firm much earlier, aftertaking his share and it is the appellant (or appellant and Respondent2) who are entitled to manage the affairs of M/s Sen Industries.However, at this stage, as rightly pointed out by the High Court,the defence in the written statement cannot be gone into. One hasto only look into the plaint for the purpose of deciding applicationunder Order 7 Rule 11 CPC. It is possible that in cleverly draftedplaint, the plaintiff has not given the details about Suit No. 268 of2008 which has been decided against him. He has totally omittedto mention about Suit No. 103 of 1995, the judgment wherein hasattained finality. In that sense, the plaintiff-Respondent 1 may beguilty of suppression and concealment, if the averments made bythe appellant are ultimately found to be correct. However, as perthe established principles of law, such defence projected in thewritten statement cannot be looked into while deciding applicationunder Order 7 Rule 11 CPC.”

(Emphasis supplied)

Referring to Kamala (supra), the Court further observed that:-

“12. … The appellant has mentioned about the earlier two caseswhich were filed by Respondent 1 and wherein he failed. Theseare judicial records. The appellant can easily demonstrate thecorrectness of his averments by filing certified copies of thepleadings in the earlier two suits as well as copies of the judgmentspassed by the courts in those proceedings. In fact, copies of theorders passed in judgement and decree dated 31-3-1997 passedby the Civil Judge (Junior Division), copy of the judgment dated31- 3- 1998 passed by the Civil Judge (Senior Division) upholdingthe decree passed by the Civil Judge (Junior Division) as well ascopy of the judgment and decree dated 31-7-2014 passed by CivilJudge, Junior Division in Suit No. 268 of 2008 are placed on recordby the appellant. While deciding the first suit, the trial court gavea categorical finding that as per MoU signed between the parties,Respondent 1 had accepted sum of Rs 2,00,000 and, therefore,the said suit was barred by principles of estoppel, waiver andacquiescence. In case like this, though recourse to Order 7Rule 11 CPC by the appellant was not appropriate, at the same

time, the trial court may, after framing the issues, take up theissues which pertain to the maintainability of the suit and decidethe same in the first instance. In this manner the appellant, or forthat matter the parties, can be absolved of unnecessary agony ofprolonged proceedings, in case the appellant is ultimately found tobe correct in his submissions.”

(Emphasis supplied)

31. This Court in the case of Soumitra Kumar Sen (supra) wasexamining case where the defendant had moved an application beforethe Trial Court under Order 7 Rule 11 of CPC requesting the Court toreject the plaint on the ground of res judicata. The Courts below hadrejected such prayer upon which the defendant had approached thisCourt. This Court, referring to its various judgements on the point, upheldsuch orders observing that if the averments made by the appellant in thewritten statement are correct, the suit may not be maintainable. However,at this stage, as rightly held by this Court, the defence in the writtenstatement cannot be gone into. One has to look into the plaint for thepurpose of deciding application under Order 7 Rule 11 of the CPC.

32. While holding that “recourse to Order 7 Rule 11” by theappellant was not appropriate, this Court observed that the Trial Courtmay, after framing the issues, take up the issues which pertain to themaintainability of the suit and decided them in the first instance. TheCourt held that this course of action would help the appellant avoid lengthyproceedings.

33. On perusal of the above authorities, the guiding principlesfor deciding an application under Order 7 Rule 11(d) of the CPC can besummarized as follows:-

(i) To reject plaint on the ground that the suit is barred by anylaw, only the averments in the plaint will have to be referred to;

(ii) The defence made by the defendant in the suit must not beconsidered while deciding the merits of the application;

(iii) To determine whether suit is barred by res judicata, it isnecessary that (i) the ‘previous suit’ is decided, (ii) the issues inthe subsequent suit were directly and substantially in issue in theformer suit; (iii) the former suit was between the same parties orparties through whom they claim, litigating under the same title;

Aand (iv) that these issues were adjudicated and finally decided bya court competent to try the subsequent suit; and

(iv) Since an adjudication of the plea of res judicata requiresconsideration of the pleadings, issues and decision in the ‘previoussuit’, such plea will be beyond the scope of Order 7 Rule 11 (d),Bwhere only the statements in the plaint will have to be perused.(See : Srihari HanumandasTotala v. Hemant Vithal Kamat,(2021) 9 SCC 99)

34. The general principle of res judicata under Section 11 of theCPC contain rules of conclusiveness of judgment, but for res judicataCto apply, the matter directly and substantially in issue in the subsequentsuit must be the same matter which was directly and substantially inissue in the former suit. Further, the suit should have been decided onmerits and the decision should have attained finality. Where the formersuit is dismissed by the trial court for want of jurisdiction, or for defaultDof the plaintiff’s appearance, or on the ground of non-joinder or mis-joinder of parties or multifariousness, or on the ground that the suit wasbadly framed, or on the ground of technical mistake, or for failure onthe part of the plaintiff to produce probate or letter of administration orsuccession certificate when the same is required by law to entitle theplaintiff to decree, or for failure to furnish security for costs, or on theEground of improper valuation, or for failure to pay additional court fee ona plaint which was undervalued, or for want of cause of action, or on theground that it is premature and the dismissal is confirmed in appeal (ifany), the decision, not being on the merits, would not be res judicata ina subsequent suit.F

35. In the present case, before examining the defendants’ groundof res judicata to oppose the eviction petition, several aspects mayhave to be looked into. Whether such an issue was substantively at issuein the previous suit and similar such other questions may crop up. Powersunder Order 7 Rule 11 of CPC under such circumstances would not beGavailable. The High Court therefore, committed an error in rejecting theplaint.

36. The seminal question that we need to decide in the presentappeal is whether the first suit i.e. the Eviction Petition No. 149 of 1996filed by late Samey Singh was dismissed on merits. To put it in otherwords, whether the finding recorded by the Rent Controller whileH

dismissing the Eviction Petition No. 149 of 1996 that the eviction petitiondeserves to be dismissed as the plaintiff Samey Singh had failed toestablish the relation of landlord and tenant between the parties could besaid to be on merits so as to render the second Eviction Petition No. 136of 2001 not maintainable on the principles of res judicata.

37. The High Court took the view that the first suit i.e. EvictionPetition No. 149 of 1996 could be said to have been dismissed under theprovisions of Order 17 Order 3 of the CPC and, therefore, the findingrecorded therein as regards the relationship of landlord and tenant couldbe said to be on merits and thus binding in the subsequent proceedings.

38. In the aforesaid context, we may look into the provisions ofOrder 17 Rules 2 and 3 respectively of the CPC which are as follows:-

“Order 17 Rules 2 and 3:

2. Procedure if parties fail to appear on day fixed.—Where,on any day to which the hearing of the suit is adjourned, the partiesor any of them fail to appear, the Court may proceed to dispose ofthe suit in one of the modes directed in that behalf by Order IX ormake such other order as it thinks fit.

Explanation.—Where the evidence or substantial portion ofthe evidence of any party has already been recorded and suchparty fails to appear on any day to which the hearing of the suit isadjourned, the Court may, in its discretion, proceed with the caseas if such party were present.

3. Court may proceed notwithstanding either party fails toproduce evidence, etc.— Where any party to suit to whomtime has been granted fails to produce his evidence, or to causethe attendance of his witnesses, or to perform any other actnecessary to the further progress of the suit, for which time hasbeen 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 rule2.”

39. Order 17 Rule 2 of the CPC provides that where, on any dayto which the hearing of the suit is adjourned, the parties or any of them

Afail to appear, the Court may proceed to dispose of the suit in one of themodes directed in that behalf by order IX or make such other order as itthinks fit.

40. The Explanation appended to Order 17 Rule 2 of the CPCprovides that where the evidence or substantial portion of the evidenceBof any party has already been recorded and such party fails to appear onany day to which the hearing of the suit is adjourned, the Court may, inits discretion, proceed with the case as if such party was present.

41. Order 17 Rule 3 of the CPC, however, provides that whereany party to suit to whom time has been granted fails to produce hisCevidence, or to cause the attendance of his witnesses, or to perform anyother act necessary to the further progress of the suit, for which timehas been allowed, the Court may, notwithstanding such default, (a) if theparties are present, proceed to decide the suit forthwith, or (b) if theparties are, or any of them is, absent, proceed under Rule 2.

D42. The scope of Order 17 Rule 2 and Order 17 Rule 3 of theCPC came up for consideration before this Court in the case of B.Janakiramaiah Chetty v. A.K. Parthasarthi & Ors., (2003) 5 SCC641, wherein Justice Arijit Pasayat speaking for the Bench held in paras7 to 10 as under:-

E“7. In order to determine whether the remedy under Order 9 islost or not what is necessary to be seen is whether in the firstinstance the Court had resorted to the Explanation of Rule 2.

8. The Explanation permits the court in its discretion to proceedwith case where substantial portion of evidence of any partyFhas already been recorded and such party fails to appear on anyday to which the hearing of the suit is adjourned. As the provisionitself shows, discretionary power given to the court is to beexercised in given circumstance. For application of the provision,the court has to satisfy itself that:

(a) substantial portion of the evidence of any party has been alreadyGrecorded; (b) such party has failed to appear on any day; and (c)the day is one to which the hearing of the suit is adjourned. Rule2 permits the court to adopt any of the modes provided in Order 9or to make such order as he thinks fit when on any day to whichthe hearing of the suit is adjourned, the parties or any of them failHto appear. The Explanation is in the nature of an exception to the

general power given under the rule, conferring discretion on thecourt to act under the specified circumstance i.e. where evidenceor substantial portion of evidence of any party has been alreadyrecorded and such party fails to appear on the date to whichhearing of the suit has been adjourned. If such is the factualsituation, the court may in its discretion deem as if such party waspresent. Under Order 9 Rule 3 the court may make an orderdirecting that the suit be dismissed when neither party appearswhen the suit is called on for hearing. There are other provisionsfor dismissal of the suit contained in Rules 2, 6 and 8. We areprimarily concerned with situation covered by Rule 6. The crucialwords in the Explanation are “proceed with the case”. Therefore,on the facts it has to be seen in each case as to whether theExplanation was applied by the court or not.

9. In Rule 2, the expression used is “make such order as it thinksfit”, as an alternative to adopting one of the modes directed in thatbehalf by Order 9. Under Order 17 Rule 3(b), the only courseopen to the court is to proceed under Rule 2, when party isabsent. Explanation thereto gives discretion to the court toproceed under Rule 3 even if party is absent. But such coursecan be adopted only when the absentee party has already ledevidence or substantial part thereof. If the position is not so, thecourt has no option but to proceed as provided in Rule 2. Rules 2and 3 operate in different and distinct sets of circumstances. Rule2 applies when an adjournment has been generally granted andnot for any special purpose. On the other hand, Rule 3 operateswhere the adjournment has been given for one of the purposesmentioned in the rule. While Rule 2 speaks of disposal of the suitin one of the specified modes, Rule 3 empowers the court to decidethe suit forthwith. The basic distinction between the two rules,however, is that in the former, any party has failed to appear atthe hearing, while in the latter the party though present hascommitted any one or more of the enumerated defaults. Combinedeffect of the Explanation to Rule 2 and Rule 3 is that discretionhas been conferred on the court. The power conferred ispermissive and not mandatory. The Explanation is in the nature ofa deeming provision, when under given circumstances, theabsentee party is deemed to be present.

A10. The crucial expression in the Explanation is “where the evidenceor substantial portion of the evidence of party”. There is apositive purpose in this legislative expression. It obviously meansthat the evidence on record is sufficient to substantiate theabsentee party’s stand and for disposal of the suit. The absenteeparty is deemed to be present for this obvious purpose. The courtBwhile acting under the Explanation may proceed with the case ifthat prima facie is the position. The court has to be satisfied onthe facts of each case about this requisite aspect. It would be alsoimperative for the court to record its satisfaction in thatperspective. It cannot be said that the requirement of substantialCportion of the evidence or the evidence having been led for applyingthe Explanation is without any purpose. If the evidence on recordis sufficient for disposal of the suit, there is no need for adjourningthe suit or deferring the decision.”

(Emphasis supplied)

43. The Full Bench decision of the Madras High Court in PrativadiBhayankaram Pichamma v. K. Sreeramulu, AIR 1918 Mad 143(FB) and the decision of the Calcutta High Court in Mariannissa v.Ramkalpa Gorsin, ILR 34 Cal 235 fell for consideration of the FullBench of the Rajasthan High Court in Gopi Kishan v. Ramu, AIRE1964 Raj 147, and Bombay High Court in Shidramappa IrappaShivangi v. Basalingappa Kushnapa Kumbhar, AIR 1943 Bom 321: 1943 SCC Online Bom 16 : ILR 1944 Bom 1 (FB).

44. The full Bench of the Rajasthan High Court in the case ofGopi Kishan (supra) observed as under:-F“8. In

“8. In Prativadi Bhayankaram Pichamma v. KamisettiSreeramulu, AIR 1918 Mad 143 (FB), the Full Bench of theMadras High Court has held that Rules 2 and 3 of Order XVII ofthe Code, of Civil Procedure are mutually exclusive. Where theconditions of Rule 2 are fulfilled even if the circumstancesGenvisaged by Rule 3 are existent and applicable, Rule 2 should beapplied. The reasons which persuaded the learned Judges to makethis preference are that when party has failed both to appear aswell as to produce evidence or to perform an act for which timewas granted to it, it will be unjust in the party’s absence to assumethat its failure to produce evidence or to perform the act wasHunjustified he being absent and, therefore, unable to offer any

explanation for its failure to produce evidence or to do acts infurtherance of the progress of the suit. Equity demanded that theCourt should proceed under Order XVII Rule 2 Civil ProcedureCode treating the case to be one of mere absence. Wallis, C. J., amember of this Full Bench of the Madras High Court, however,expressed different view that Rules 2 and 3 were not mutuallyexclusive. M. Agaiah v. Mohd. Abdul Kareem, AIR 1961 AndhPra 201 is Full Bench decision of the Andhra Pradesh HighCourt which has adopted the view taken by the Madras HighCourt in Pra-tivadi’s case, AIR 1918 Mad 143(2) (FB). The AndhraPradesh High Court has not referred to the decisions of otherHigh Courts which have taken contrary view. The High Courtof Rangoon in Ma Hla Nyun v. Ma, Aye Myint, AIR 1937 Rang437, the High Court of Nagpur in Bhioraj Jethmal v. JanardhanNagorao; AIR 1933 Nag 370 and Judicial Commissioner’s Courtof Bhopal in Hashmat Rai v. Lal Chand, AIR 1952 Bhopal 43have adopted the same view as the High Court of Madras.

9. The other view taken by the Calcutta High Court inMariannissa v. Ramkalpa Gorsin, ILR 34 Cal 235 consideredthe relationship between Section 157 and 158 of the Code of CivilProcedure, 1882, which correspond to Order XVII rules 2 and 3respectively of the Code of Civil Procedure of 1908 and expressedthe view that the existence of material was necessary for theapplication of Section 158 which corresponds to Rule 3 of OrderXVII. In this case issues were framed and after variousadjournments the case came up for hearing on 10th March, 1905.The plaintiff had asked for and obtained process for witnessesbut as they did not appear on the date fixed for trial the plaintiffprayed for the issue of warrant of arrest for one of them. Thisapplication was refused. The pleader for the plaintiff thereuponintimated to the Court that he had no further instructions to appearin the case and the subordinate Judge dismissed the suit, for wantof prosecution. When the plaintiff made an application to set asidethe order of dismissal under Section 102 (Order IX Rule 8) thedefendant took preliminary objection that the suit bad beendismissed not under Section 102 but under Section 158 (OrderXVII Rule 3) and consequently the remedy of the plaintiff was byway of review and not for restoration. The plaintiff eventually‘appealed to the High Court. The learned Judges observed,—

660SUPREME COURT REPORTS

A“It is obvious that the scope of Section 157 is quite distinctfrom that of Section 158. Section 158 appears to contemplatea case in which the Court has materials before it to enable it toproceed to decision of the suit ..............what Section 158provides is, that the mere fact of party making default in theperformance of what he was directed to would not lead to theBdismissal of the plaintiff’s suit, if he was the party in default, orthe decreeing of the claim against the defendant, if the defendantwas the person, who made the default; the words‘notwithstanding su’ch default’ clearly imply that the Court isto proceed with the disposal of the suit in spite of the default,Cupon such materials as are before it. Section 157, on the otherhand, speaks of the disposal of the suit, and undoubtedly includescases in which there might not be any materials before theCourt to enable it to pronounce decision on the merits, forinstance, if the event contemplated in Sections 97, 98, 99 Clause(a) and 102 happens, although, if the contingency mentioned inDSection 100, Clause (a) happens, there would be materialsbefore the Court, and decision on the merits. ............”

(Emphasis supplied)

45. We may also look into the Full Bench decision of the BombayEHigh Court in the case of Shidramappa Irappa Shivangi (supra)wherein the following was held:-

“The general provisions about appearances of parties in OrderIII, Rule 1, are that party can appear in person or by recognizedagent or by pleader appearing, applying or acting on his behalf.FThese are made subject to any other express provision of law.Such an express provision is in Order V, Rule 1, where the modeof appearance by defendant is stated to be either (a) in person,or (b) by pleader duly instructed and able to answer all materialquestions relating to the suit, or (c) by pleader accompanied bysome person able to answer all such questions. The forms ofGsummons given in forms Nos. 1 and 2 of appx. to the firstschedule also contain the same instructions. Where, therefore,the defendant does not appear in person and there is none else toinstruct his pleader, the only person through whom ha can be saidto appear is pleader who must be duly instructed and able toHanswer all material questions. It follows, therefore, that if the

pleader is present in Court on any day of hearing but has noinstructions as to how to proceed with the case, there is noappearance of the defendant. Whether pleader is duly instructedis question of fact, but if he refuses to take part in the trial on theground that he has no instructions and then withdraws from thecase either after, or without making, an application for adjournment,all further proceedings against the defendant become ex parte. Ifthe Court thereafter asks the plaintiff to lead evidence and thenpasses decree in his favour, it must be regarded as an ex partedecree. The defendant would then be at liberty to apply to set itaside under Order IX, Rule 13. …”

46. In Gopi Kishan (supra) the Full Bench of the Rajasthan HighCourt gave an illustration as to when Rule 2 or Rule 3 of Order 17 wouldapply. We quote the relevant observations of the Full Bench as under:-

“18. Rule 2 confers discretion in the Court, in the event of partybeing absent, either to dispose of the suit in one of the modesdirected by Order 9 or to make such other order as it thinks fit.Rule 3, however, envisages situation where party to whomtime has been granted for the production of evidence or for theperformance of any other act necessary to the further progressof the suit and such party fails to produce the evidence or toperform the act for which time had been allowed the Court may.notwithstanding such default proceed to decide the suit forthwith.When party to whom time has been granted for the productionof evidence or for the performance of any other act also does notappear it is clearly case of double default. Not only the partyhas failed to do that for which time was granted to it but has alsofailed to appear. In our opinion this double default does not takeaway the case from the purview of Order XVII Rule 3. We areunable to agree with the interpretation given in the Full BenchMadras case that Rules 2 and 3 are mutually exclusive. Therecan be cases as the one before us, where time was granted to aparty to produce evidence but the party not only failed to produceevidence but also absented itself and it cannot be said that OrderXVII Rule 3 cannot apply to such case.

19. In long series of decisions adopting the view of the CalcuttaHigh Court for diverse reasons it has been held that the existenceof material is necessary for deciding suit under Order XVII

Rule 3. The language of the statute does not expressly indicatethe existence of material as an essential condition for itsapplication. This interpretation has been influenced apparently bythe word ‘decide’ to mean decide on merits. In Ramkaran’s case,ILR (1953) 3 Raj 798 the learned Judges of this Court feltpersuaded by the provisions of Order XX Rule 4 of the Code ofCivil Procedure to hold that the existence of material was necessaryand because only pleadings and issues were on record they opinedthat the dismissal should be construed to be one under Order XVIIRule 2. On the other hand in Amarsingh’s case, 1953 Raj LW365, the learned Judges were of the view that where the plaintifffailed to discharge the burden placed on him in the suit, the logicalconclusion was that the suit should be dismissed whether materialexisted or not. No decision has attempted to indicate the exactkind of quantum of material which is requisite for the operation ofOrder XVII Rule 3. The difficulty of such task is easy toappreciate. In the wide varieties of cases and complexities ofsituation formulation of universal rules, is task not easy ofattainment. The indications,” however, are as in Ramkaran’s case,ILR (1953) 3 Raj 798 that the material may mean ‘evidence’ onrecord. The obvious question which arises next is whether canabsence of evidence altogether exclude the applicability of OrderXVII Rule 3? It is difficult to lay down such a, wide proposition.The intention of Order XVII Rule 3 as has been noticed is that aparty seeks time to produce evidence or do something to furtherthe progress of suit and makes default in doing either, Courtmay decide the suit forthwith. To our mind, it is too wide aproposition to lay that in no case where evidence has not been ledRule 3 would be inapplicable. The test should be whether theCourt before whom the suit is pending on the basis of materialbefore it is in position to decide the suit forthwith, the default ofa party notwithstanding. The pleadings, of the parties and issuesarising therefrom may in some cases enable Court to decide thesuit forthwith. Suppose in suit on promissory note the executionof which has not been denied by the defendant and the defendantpleads want of consideration seeking time to produce evidence.Time is allowed but he makes default in producing evidence. Canthe suit be not decided in view of the legal presumption containedin Section 118 of the Negotiable Instruments Act? In conversecase the defendant denies execution and the plaintiff is grantedtime to prove execution and he makes default. Can the suit be notdecided on the ground of the default made by the plaintiff indischarging the burden of proof placed on him? In the firstillustration it can perhaps be said that the promissory note executionwhereof has been admitted constitutes evidence and there ismaterial on record to attract the applicability of Rule 3. In thesecond illustration; however, the execution not having been admittedthere is obviously no evidence. The plaintiff fails to discharge hisduty. Can we say that the suit should be disposed of in accordancewith Order IX as per Order XVII Rule 2? The answer is plainlyin the negative for the situations envisaged under Order IX aredifferent than the one we have in the illustration. Can it be saidthat the Court may pass such other order as it thinks fit as laiddown in Rule 2 of Order 17? Such an order can be no other thanto adjourn the case for plaintiff’s absence in situation such asthis. Therefore, if the plaintiff fails to discharge the burden placedon him in view of the pleadings and consequent issues despite theopportunity afforded to him the case cannot be adjourned for hisevidence ad infinitum and the Court at some stage or the otherhas to decide it for want of evidence. Even in contested suitissues are sometimes decided for want of evidence and so canthe whole suit. Therefore, in our opinion the existence of materialdoes not necessarily mean existence of evidence. If suit can bedecided despite the lack of evidence on the material before itOrder XVII Rule 3 can be said to govern the case. Material onrecord need not be given technical meaning and equated toevidence. The circumstances of each case will regulate theexercise of discretion vested in Court. It is for the Court toexercise its discretion and to indicate without ambiguity whetherit is exercising its powers under Order XVII Rule 3 or not. It iscorrect that the application, of Rule 3 restricts the future remediesof defaulting party and is stringent provision, and, therefore, itshould be applied with circumspect caution and judicial restraint,Ramkaran’s case, ILR (1953) 3 Raj 798 therefore, has to be readwith the aforesaid modification. No exception can, however, betaken to the reasoning adopted in Amarsing’s case, 1953 Raj LW365.”

(Emphasis supplied)

A47. Thus the Full Bench took the view that if the plaintiff fails todischarge the burden placed on him in view of the pleadings andconsequent issues despite the opportunity afforded to him, the case maynot be adjourned for his evidence ad infinitum and the court must atsome stage or the other decide for want of evidence. The Full Benchtook the view that the existence of material would not necessarily meanBexistence of evidence. If the suit can be decided despite the lack ofevidence on the material before it, then in such circumstances Order 17Rule 3 of the CPC would govern the case.

48. The aforesaid dictum as laid by the Rajasthan High Courtappears to be in conflict with the decision of this Court in the case ofCPrakash Chander Manchanda v. Janki Manchanda, (1986) 4 SCC699, wherein this Court observed as under:-

“6. …It is clear that in cases where party is absent only courseis as mentioned in Order 17(3)(b) to proceed under Rule 2. It istherefore clear that in absence of the defendant, the Court had noDoption but to proceed under Rule 2, Similarly the language of Rule2 as now stands also clearly lays down that if any one of theparties fail to appear, the Court has to proceed to dispose of thesuit in one of the modes directed under Order 9. The explanationto Rule 2 gives discretion to the Court to proceed under Rule 3Eeven if party is absent but that discretion is limited only in caseswhere party which is absent has led some evidence or hasexamined substantial part of their evidence. It is therefore clearthat if on date fixed, one of the parties remain absent and forthat party no evidence has been examined upto that date the Courthas no option but to proceed to dispose of the matter in accordanceFwith Order 17 Rule 2 in any one of the modes prescribed underOrder 9 of the Code of Civil Procedure. It is therefore clear thatafter this amendment in Order 17 Rules 2 and 3 of the Code ofCivil Procedure there remains no doubt and therefore there is nopossibility of any controversy. In this view of the matter it is clearGthat when in the present case on 30th October 1985 when thecase was called nobody was present for the defendant. It is alsoclear that till that date the plaintiffs evidence has been recordedbut no evidence for defendant was recorded. The defendant wasonly to begin on this date or an earlier date when the case wasadjourned. It is therefore clear that upto the date i.e. 30th October,H1985 when the trial court closed the case of defendant there was

no evidence on record on behalf of the defendant. In this view ofthe matter therefore the explanation to Order 17 Rule 2 was notapplicable at all. Apparently when the defendant was absent Order17 Rule 2 only permitted the Court to proceed to dispose of thematter in any one of the modes provided under Order 9.

7. It is also clear that Order 17 Rule 3 as it stands was not applicableto the facts of this case as admittedly on the date when theevidence of defendant was closed nobody appeared for thedefendant. In this view of the matter it could not’ be disputed thatthe Court when proceeded to dispose of the suit on merits hadcommitted an error. Unfortunately even on the review application,the learned trial Court went on in the controversy about Order 17Rules 2 and 3 which existed before the amendment and rejectedthe review application and on appeal, the High Court alsounfortunately dismissed the appeal in limine by one word.”

(Emphasis supplied)

49. Thus the dictum as laid by this Court in Prakash ChanderManchanda (supra) is that it will be within the discretion of the Court toproceed under Rule 3 even in the absence of evidence but such discretionis limited only in cases where party which is opposing has led someevidence or has examined substantial part.

50. Let us apply the aforesaid dictum as laid by this Court to thefacts of the present case. In the case on hand, after the first evictionpetition was instituted, the defendants therein filed their written statementdenying the relationship of landlord and tenant. After the written statementcame on record, no further evidence was led by the plaintiffs. All thatwas on record was in the form of pleadings in the plaint. The AdditionalRent Controller took the view that after the written statement came onrecord, it was the duty of the plaintiffs to establish or prove the landlordtenant relationship and having failed to adduce any evidence, the suitwas liable to be dismissed and accordingly was dismissed. The HighCourt interpreted or rather construed the order of the Additional RentController as one under Rule 3 of Order 17 and, therefore, took the viewthat the findings as regards the relationship of landlord and tenant couldbe said to be on merits.

51. We are afraid, the High Court committed an error in takingthe view that the order passed by the Additional Rent Controller could

Abe said to be one passed in exercise of powers under Rule 3 of Order 17of the CPC.

52. The power conferred on Courts under Rule 3 of Order 17 ofthe CPC to decide the suit on the merits for the default of party is adrastic power which seriously restricts the remedy of the unsuccessfulBparty for redress. It has to be used only sparingly in exceptional cases.Physical presence without preparedness to co-operate for anythingconnected with the progress of the case serves no useful purpose indeciding the suit on the merits and it is worse than absence. In anycontingency, the discretion is always with the Court to resort to Rule 2or 3 respectively or to grant an adjournment for deciding the suit in aCregular way in spite of default. Rules 2 and 3 respectively are only enablingprovisions. In order to decide the suit on the merits, the mere existenceof the conditions enumerated in Rule 3 alone will not be sufficient. Theremust be some materials for decision on the merits, even though thematerials may not be technically interpreted as evidence. SometimesDthe decision in such cases could be on the basis of pleadings, documentsand burden of proof. Anyhow, it is appreciable for the Court to indicateby the judgment that the decision is for default or on the merits. The onlyalternative of the Court in cases covered by Rule 3 or the explanation toRule 2 is not to decide on the merits alone. If such an interpretation isgiven, it will amount to an unjustified preference to one who purposelyEabsents than to one who presents but unable to proceed with the case.‘Appearance’ and ‘presence’ have well recognised meanings. They implypresence in person or through pleader properly authorised for the purposeof conducting the case. Rule 3 comes into play only when presence is toproceed with the case, but default is committed in any one of the three

Fways mentioned in Rule 2 or explanation to Rule 2 is extracted. Thoseare cases in which some materials are there for the Court to decide thecase on the merits and not cases where decision could only be for default.That is clear from combined reading of Rules 2 and 3 respectively andthe explanation. In this case, none of these conditions were present andthe decision was evidently for default. Rule 2 alone is attracted. (see :GR. Ravindran v. M. Rajamanickam, 2006 SCC Online Mad 169)

53. The order passed by the Rent Comptroller dated 27.01.1998referred to in para 8 of this judgment, has different angle too. Let usonce again read the order passed by the Rent Controller closely. Theorder is in two parts. In the first part, the Rent Controller says that theH

counsel for the plaintiff is present. Then, he proceeds to observe that thecounsel for the plaintiff made statement that no witness has cometoday nor they were summoned. The Rent Controller, further, notes thaton none of the grounds further adjournment has been prayed for.Thereafter, he states that the last opportunity was granted to the plaintiffon 09.09.1997 and thereafter, on 01.11.1997. However, the plaintiff didnot care to call his witnesses. In such circumstances, the Rent Controllerclosed the eviction petition proceedings. The exact words used by theRent Controller in the order dated 27.01.1998 are: “the PE is thusclosed.” In the second part of the order, the Rent Controller, thereafter,proceeds to observe that since the relationship of Landlord-Tenant isunder dispute and the plaintiff has failed to produce any evidence toestablish such relationship, he did not find any good reason to fix thecase further for recording of evidence. In such circumstances, hedismissed the eviction petition, as the plaintiff could be said to have failedto establish his case. In the last, he observed that the file be consigned.

54. At the stage of hearing of the case, Order 17 of the CPC,applied. Under that Order on date of adjourned hearing, if party wasabsent, the Court either would act under Order 9 or otherwise as itthought fit; or if party was present but it did not produce evidence, itwould proceed to decide the suit forthwith without benefit of evidence.This last thing tantamounts that the Court was to say whether the suitwas or was not proved, either wholly or in part and to pass the decreeaccordingly.

55. The moot question is whether the eviction petition wasdismissed for default which dismissal would certainly bar fresh suit ifinstituted on the same cause of action. The words, which we have quotedabove, certainly do not mean dismissal either on merits or on default. Itwas argued before us that the order should only be taken to mean whatan order under Order 17 can possibly be and nothing else. We are notimpressed by such submission. The order did not purport to be one ofdismissal for default or on merits and it cannot be taken to mean otherthan what it purported to be. It is in ordinary phraseology; not legalphraseology and it cannot be divested of its ordinary meaning. Its ordinarymeaning is that the proceeding was closed and the suit would not countas pending one. The later description would be redundant if the orderwas one of final disposal of the suit. The order did not purport to be afinal disposal of the suit. It merely stopped the proceedings. It did nothing

Amore. This is not final decision of the suit within the meaning of Order 9Rule 8 and Order 17 Rule 3 resply of the CPC.

56. In the result, the appeal succeeds and is hereby allowed. Theimpugned judgement and decree is, therefore, set aside. Needless toadd two things. First, we have not expressed any opinion on rivalBcontentions regarding the applicability or otherwise of the principle ofres judicata or for that matter any other contentious issue in the pendingsuit. Secondly, nothing stated in this judgment will prevent the concerneddefendants from requesting the Court to decide such an issue as apreliminary issue. Such an application would obviously be decided on itsmerits about which also we expressed no opinion. The suit is revived.

57. There shall be no order as to costs.

58. Pending application, if any, also stands disposed of.

Ankit Gyan

D(Assisted by : Shivesh Raghuvanshi and Mahendra Yadav, LCRAs)

Appeal allowed.