The supreme court in the matter of Prem Kishore & ors v/s Brahm Prakash & ors held that a suit can proceed underorder 17 rule 3 of CPCeven in the absence of evidence provided the opposing party has led some evidence or has examined a substantial part of such evidence.
The court observed that the suit can be decided under order 17 rule 3 on merits if there is some material for deciding the same even when such material may not be strictly evidence however the court cautioned that such discretion should be exercised sparingly as it can restrict the remedy of losing party to seek redress.
The matter involves an eviction suit which was dismissed by the Delhi rent controller as the father of the appellant failed to adduce the evidence despite many opportunities given by the court and no appeal or fresh eviction suit was filed after that.
The appellant after the death of his father being a successor claimed interest in the suit and filed a fresh eviction suit.
The suit was opposed by the respondent as being barred by the principle of res judicata.
The court however observed that the suit is not barred by res judicata as the previous eviction suit was not disposed of finally but just the proceedings were stopped.
Going forward the court observed that order 17 rule 3 provides that where a party has failed to adduce evidence despite being given opportunities by the court can despite such default proceed to decide the suit if parties are present or if they or anyone of them is absent the court can proceed with the suit if any evidence or substantial portion of such evidence of such party is already recorded.
Thus the court held that a suit can be decided under order 17 rule 3 on merits for the default of a party provided there is material for deciding it on merits however such material need not be strictly evidence.
Written by Amruta Pawar, semester 6th, College; The university of Mumbai thane sub-Campus.
