Order XVII Rule 2 CPC - Procedure if Parties Fail to Appear on the Adjourned Date
Order XVII Rule 2 of the Code of Civil Procedure, 1908 (CPC) addresses what a civil court may do when one or more parties fail to appear on a date fixed after an adjournment. It ordinarily directs the court to the procedures under Order IX, while its Explanation permits a limited discretion to proceed as though an absent party were present.
Text of Order XVII Rule 2 CPC
2. Procedure if parties fail to appear on day fixed. 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.
Meaning and scope of Rule 2
The rule applies when a suit has been adjourned and a party does not attend the next scheduled hearing. The court may adopt the applicable procedure under Order IX CPC, which regulates the appearance of parties and the consequences of non-appearance, or pass another order appropriate to the procedural circumstances.
The provision does not mean that every absence automatically results in a decision on the merits. The nature of the order depends on who is absent, the stage of proceedings, the evidence already recorded, and the statutory conditions.
Consequences under Order IX CPC
Where the plaintiff is absent and the defendant appears, dismissal of the suit may arise under Order IX Rule 8, subject to its terms. Where the defendant is absent and the plaintiff appears, the court may proceed ex parte under Order IX Rule 6, subject to proof of due service and the applicable conditions. Where neither party appears, Order IX Rule 3 provides for dismissal.
The CPC also provides remedies in appropriate cases: Order IX Rule 4 addresses restoration after dismissals under Rules 2 or 3; Order IX Rule 9 addresses setting aside dismissal under Rule 8 on sufficient cause; and Order IX Rule 13 deals with setting aside an ex parte decree on specified grounds. The correct remedy depends on the legal character of the court's order.
Explanation: substantial evidence already recorded
The Explanation creates an important exception. If the evidence, or a substantial portion of the evidence, of the absent party has already been recorded, the court may proceed as if that party were present. This is discretionary, not automatic. Whether the evidence is substantial must be assessed in the context of the case; the mere fact that some evidence has been recorded is not invariably sufficient.
Difference between Order XVII Rules 2 and 3
Rule 2 principally addresses a party's non-appearance on an adjourned date. Rule 3 addresses default in performing an act for which time was granted, such as producing evidence or securing witnesses. Under Rule 3, when parties are present, the court may decide the suit forthwith; if a party is absent, Rule 3(b) directs the court to proceed under Rule 2. These provisions should be read together.
Practical considerations
A party unable to attend an adjourned hearing should promptly seek appropriate relief and provide supporting reasons. If an adverse order has already been passed, it is essential to obtain the order and determine whether it is a dismissal for default, an ex parte decree, or a decision on the merits before choosing the remedy and checking the applicable limitation period.
Official legislation and further reading
Consult the India Code legislative record for the Code of Civil Procedure, 1908 for the statutory text and amendments. For the related provisions on adjournments and default, see Order XVII Rule 1 and Order XVII Rule 3.
This article explains the general CPC framework. State amendments, local rules and binding judicial decisions may affect its application in a particular court.