IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 115 of 2009()
1. ARU @ ARUMUGHAN, S/O. MUTHU,
... Petitioner
2. PETTA, W/O. CHAMIYAR, POKKUNNI,
3. MANI, W/O. APPU,
4. KALAVATHI, W/O.KUNJUKUTTAN, ODUKUMPARA
Vs
1. DAIVANI, W/O.RAMAN, MAILAROAD,
... Respondent
2. VELAYUDHAN, MAILAROAD, KODUVAYUR,
3. RAMAN
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SRI.O.RAMACHANDRAN NAMBIAR
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :24/08/2009
O R D E R
P.R.RAMAN &
K.SURENDRA MOHAN, JJ.
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RFA No.115 of 2009
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Dated this the 24th day of August, 2009
JUDGMENT
Raman,J.
This is an appeal filed against an order decreeing
the suit for partition of the property into two equal shares
between the plaintiff and the defendant. Defendants 1,4,
5 and 6 are the appellants. The appellant’s grievance is
that the suit ought not to have been decreed merely
because they were absent on the day on which the case
was posted. It is pointed out that if the parties failed to
appear on the day fixed, the court would have proceeded
under Order XVII Rule 2 of the CPC. The explanation to
Rule-2 gives a discretion to the court to proceed under
Rule 3, even if a party is absent, but that discretion is
limited only in cases where a party who is absent has led
some evidence or has examined substantial part of their
R.F.A.No.115 of 2009 2
evidence and a appeal will lie against such an order, but
not against the order under Rule I of Order XVII.
2. We have heard the parties. In the light of the
decision reported in Prakash Chander v Janki
Manchanda (1987 SC 42) and in the light of the specific
provisions contained in Order XVII Rule 2, it admits of no
doubt that where, on any date 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
order, as it thinks fit. Explanation can however be
extracted and the court can exercise the discretion
provided where the party who is absent has led some
evidence holding it as substantial. Then such an order will
become an appealable order also. In this case, the court
did not exercise its discretion under the explanation, since
this is a case where no evidence was adduced.
Therefore, the court would only proceed under Order XVII
Rule 2 read with order IX which has not been done.
R.F.A.No.115 of 2009 3
Accordingly, the appeal is allowed. The judgment and
decree passed in O.S.No.358 of 2996 of the court below
is set aside and the court shall proceed from the stage at
which the case stood posted and dispose of the matter in
accordance with law.
The parties shall appear before the court below on
29.9.2009.
P.R.RAMAN,
JUDGE
K.SURENDRA MOHAN,
JUDGE
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