[Order 17 Rule 3 CPC] Suit Can Be Decided On Merit If There Is Some Material, Though It May Not Be Strictly "Evidence" : Supreme Court

Recently, the Supreme Court held that the Court can decide a suit on merit under Order 17 Rule 3 Code of Civil Procedure if there is some material for deciding on merit, even though the material may not be technically interpreted as evidence. It clarified that the decision can be based on pleadings, documents and burden of proof. However, it observed that the Court should indicate if the decision is on merit or on default. As a word of caution, the Apex Court added that the provision ought to be applied sparingly as it has the potential to restrict the remedy of unsuccessful party for redress.Order 17 Rule 3 gives power to the Court to decide a suit notwithstanding the fact that either party has failed to produce evidence.A Bench comprising Justice Sudhanshu Dhulia and Justice JB Pardiwala was deciding a case that emanated from a eviction petition filed under the Delhi Rent Control Act, 1958. An application was filed under Order 7 Rule 11 alleging the issue that there exists no landlord-tenant relationship as had been established in a previous round of litigation. The Additional Rent Controller refused to accept that the petition was barred by res judicata. Upon rejection of the application a civil revision was filed before the Delhi High Court that allowed the Order 7 Rule 11 application. Factual BackgroundThe father of the appellants had inducted the respondents as tenants. The respondents defaulted in paying rent. Subsequently the father of the appellants served a demand notice on the respondents claiming arrears of rent. Since the arrears were not cleared, an eviction petition was filed against the tenants under the Delhi Rent Control Act, 1958. During the course of the proceedings, the respondents had filed their written statement denying the landlord-tenant relationship. Even though several opportunities were granted to the plaintiffs (appellants) to adduce evidence to establish the said relationship they did not respond. In view of the same the Rent Controller closed the petition. Neither any appeal was filed against the order of the Rent Controller, nor was any fresh eviction petition filed by the father of the appellants. After the father’s demise, the appellants claiming as successors in interest filed an eviction petition. A written statement was filed by the respondent wherein it was submitted that the predecessor in interest had failed to prove the landlord-tenant relationship. By filing an application under Order 7 Rule 11 of the CPC seeking rejection of the plaint, the respondents argued that the issue cannot be reopened in a second eviction petition as it is barred by the principles of res judicata. The Additional Rent Controller refused to reject the plaint noting that the second eviction petition filed by the appellants under Section 14(1)(a) of the Delhi Rent Control Act, 1958 was based on a fresh notice and on a separate cause of action. It was also stated by the Additional Rent Controller that in the previous proceedings there was no finding on merits regarding the landlord-tenant relationship between the parties. The order of the Additional Rent Controller was challenged before the Delhi High Court by the respondents. The High Court rejected the plaint on the basis that it was in the teeth of the principles of res judicata. It had taken a view that the first eviction petition was dismissed under Order 17 Rule 3 CPC [court may proceed notwithstanding either party fails to produce evidence, etc] and therefore the finding recorded with respect to the landlord-tenant relationship can be said to be one on merit.Analysis by the Supreme CourtAt the outset the Court referred to the decisions wherein it had dealt with the issue - whether res judicata can be the basis or ground for rejection of the plaint and summarised the guiding principle for deciding an application under Order 7 Rule 11(d) of the CPC [rejection of plaint where the suit appears from the statement in the plaint to be barred by law]. On the issue pertaining to the dismissal of the first eviction suit on Order 17, Rule 3 CPC, the Court noted that the provision contemplates that 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. The course under Order 17 Rule 3 can only be adopted when the absentee party has already adduced evidence or a substantial part of it. Otherwise, the Court has to proceed under Rule 2. Now, Order 17 Rule 2 provides that 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 9 CPC or...

[Order 17 Rule 3 CPC] Suit Can Be Decided On Merit If There Is Some Material, Though It May Not Be Strictly "Evidence" : Supreme Court

Sohini Chowdhury

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