Chamber Notes
Notwithstanding Such Default: The Two Failures Order XVII Separates, and the One It Treats Worse
14 October 2026 · 18 min read
A code that fixes dates has to decide what happens when a date is not used. The decision is unavoidable, because the alternative — a hearing that proceeds only when both sides are ready for it — is not a procedure at all. So every system of civil procedure contains some provision for the adjourned date, and the provision has to answer two questions that are easily run together. What may the Court do about the delay itself? And what may the Court do about the party whose failure caused it?
The Code of Civil Procedure, 1908 answers both in Order XVII, which is headed "Adjournment" and runs to three rules. Rule 1 is about granting time. Rule 2 is about the party who fails to appear on the adjourned date. Rule 3 is about the party to whom time was granted and who fails to use it. The Order is usually described by reference to the restrictions in Rule 1 — sufficient cause, reasons to be recorded, not more than three adjournments, hearing from day to day once it has commenced — and on that description it is the Code's principal instrument against delay.
Read instead for consequences, the Order looks different. The restrictions in Rule 1 are addressed to the Court and attach nothing to their own breach. The consequences are in Rules 2 and 3, they are severe, and they are not triggered by delay. They are triggered by default, and the Order distinguishes two kinds of it. One is answered by a disposition the defaulting party can apply to have set aside. The other is answered by a decree. The second is the one that follows from appearing.
Three rules, two subjects
The three rules do not form a sequence. Rule 1 governs the grant of time, before anything has gone wrong. Rules 2 and 3 govern two distinct failures after it has.
Rule 2 is about appearance. "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." Its subject is absence, and it does not ask what the absent party was supposed to do that day.
Rule 3 is about the act for which time was given. It applies "[w]here 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". Its subject is the unused indulgence, and it does not require that anybody be absent. A party can be in default under Rule 3 while standing in court.
The two can therefore overlap, and the Code says which prevails. Rule 3 permits the Court, "notwithstanding such default", to take one of two courses: "(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 clauses were substituted by section 68 of the Code of Civil Procedure (Amendment) Act, 1976, with effect from 1 February 1977, and what they do is route the defaulter who is absent back into Rule 2 and keep for clause (a) only the defaulter who is there. Presence is the condition on which the Court may decide the suit forthwith.
Every limit in Rule 1 is addressed to the Court
Sub-rule (1) of Rule 1, as substituted by section 26 of the Code of Civil Procedure (Amendment) Act, 1999 with effect from 1 July 2002, provides that the Court "may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing". Its proviso then limits the number of adjournments that may be granted to a party during the hearing of the suit to three.
Four features of that sub-rule are worth separating.
The power is to grant time, and it exists "at any stage of the suit". The limit in the proviso is confined to the hearing of the suit. The cap is thus narrower than the power it qualifies: time granted at a stage which is not the hearing is outside the proviso's terms altogether.
The cap is counted per party, not per suit. Two defendants with separate defences bring their own allowances with them, and a suit with several contesting parties can absorb a multiple of three adjournments without any party exceeding anything.
The sub-rule requires reasons to be recorded in writing. That requirement is about the record. It makes an adjournment traceable, and it gives an appellate Court something to look at later; it does not make the adjournment harder to obtain.
And the proviso states no consequence. It does not say that a fourth adjournment is void, that the suit is to be disposed of, that the party forfeits anything, or that the Court must proceed. It says the adjournment shall not be granted. If it is granted, the Order is silent on what follows, and no other provision of the Code attaches a consequence to the breach as such. An order of adjournment is not in the list of appealable orders in Order XLIII Rule 1 — which includes orders under Order IX, Order XI, Order XXI, Order XXII, Order XXXIX, Order XLI and others, and nothing under Order XVII — so the party aggrieved by it has no appeal. What it has is section 105(1), by which, where a decree is appealed from, "any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal", and Rule 1A of Order XLIII, inserted in 1976, which states the party's corresponding right: where an order is made against him and a judgment is then pronounced and a decree drawn up, he may in an appeal against the decree contend "that such order should not have been made and the judgment should not have been pronounced". Both are remedies at the end of the suit against the order that prolonged it.
The restrictions that sit in the sub-rule about costs
Sub-rule (2) of Rule 1 is headed "Costs of adjournment". It requires the Court, in every case where it adjourns, to fix a day for the further hearing and to make "such orders as to costs occasioned by the adjournment or such higher costs as the court deems fit". Attached to that sub-rule is the proviso substituted by section 68 of the 1976 Act, in five clauses, and the five clauses contain the most demanding language in the Order.
Clause (a) provides that once the hearing of the suit has commenced it "shall be continued from day-to-day until all the witnesses in attendance have been examined", unless the Court finds that for exceptional reasons, to be recorded by it, an adjournment beyond the following day is necessary. Clause (b) provides that no adjournment "shall be granted at the request of a party, except where the circumstances are beyond the control of that party". Clause (c) removes the commonest ground of all: that the pleader of a party is engaged in another Court "shall not be a ground for adjournment". Clause (d) admits the illness or inability of a pleader only if the Court is satisfied that the party "could not have engaged another pleader in time". Clause (e) deals with the witness who has come: where a witness is present but the party or his pleader is absent, or is present and not ready to examine or cross-examine him, the Court may record the witness's statement and pass such orders as it thinks fit dispensing with the examination-in-chief or the cross-examination.
Two observations follow from where those clauses are placed.
The first is that clause (b) is in tension with sub-rule (1) as drafted. Sub-rule (1) permits an adjournment where sufficient cause is shown. The normal vehicle for showing cause is a request by the party who has it. Clause (b) forbids an adjournment granted at a party's request unless the circumstances were beyond that party's control. Sufficient cause within a party's control — a step genuinely overlooked, a document genuinely not ready — therefore satisfies the sub-rule and fails the proviso.
The second is that clause (e) is the only provision in Rule 1 that attaches a procedural consequence, as distinct from a monetary one, to a party's unreadiness. It does not restrain the Court; it empowers it, and the power it gives operates on the party who is not ready rather than on the calendar. A cross-examination can be dispensed with. That is a loss of a right to test evidence, suffered on an adjourned date, by a party who may well be present in court. It belongs, in substance, with Rules 2 and 3 rather than with the restrictions it is grouped among.
What Rule 2 borrows from Order IX
Rule 2 does not itself specify a disposition. It directs the Court to "one of the modes directed in that behalf by Order IX", and the modes there are familiar because they are the ones that govern the first hearing: dismissal where neither party appears, under Rule 3; hearing the suit ex parte where the plaintiff appears and the defendant does not and the summons is proved to have been duly served, under Rule 6(1)(a); dismissal where the defendant appears and the plaintiff does not, under Rule 8.
The feature those dispositions share is that each of them can be undone by the party against whom it was made, on the same ground, before the same Court.
A dismissal under Rule 3 can be set aside under Rule 4 if the plaintiff satisfies the Court that there was sufficient cause for his non-appearance, and the Court "shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit". A dismissal under Rule 8 bars a fresh suit on the same cause of action by Rule 9(1), and the same sub-rule allows the plaintiff to apply to have the dismissal set aside on sufficient cause for his non-appearance. A decree passed ex parte may be set aside under Rule 13 if the defendant satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing. Rule 14 forbids a decree being set aside on such an application unless notice of it has been served on the opposite party, and Rule 9(2) imposes the same requirement on an application under that rule.
And the refusals are appealable. Order XLIII Rule 1(c) gives an appeal from an order under Rule 9 of Order IX rejecting an application, in a case open to appeal, for an order to set aside the dismissal of a suit, and Rule 1(d) gives the same against a refusal under Rule 13 to set aside a decree passed ex parte. The absent party therefore has a defined route: an application on sufficient cause to the Court that made the order, and an appeal if the application is refused.
None of that depends on the absence being excusable. It depends on the Court being satisfied, later, that it was — which is a different thing, and the only thing the party in default is in a position to establish once the date has passed.
The default that does not depend on absence
Clause (a) of Rule 3 gives the Court a different power. Where time has been granted and the act has not been done, and the parties are present, the Court may "proceed to decide the suit forthwith".
What that produces is a decision of the suit. It is not a dismissal for non-appearance and it is not a hearing conducted ex parte; the party against whom it goes was in court when it was made. It is therefore a decree in the ordinary sense, and the remedy against a decree is an appeal under section 96. The provisions of Order IX that permit a disposition to be set aside are, by their own terms, confined to the situations they describe: Rule 4 and Rule 9 to dismissals for non-appearance, and Rule 13 to a decree "passed ex parte against a defendant". A decision given under Rule 3(a) against a party who was present does not answer to any of those descriptions. That characterisation, and not the strength of his explanation, is what an application to set such a decree aside has to overcome first.
Place the two side by side on the same facts. Time has been granted to a plaintiff to produce his evidence; on the adjourned date the evidence is not there.
If he stays away, the Court is taken by Rule 3(b) to Rule 2 and by Rule 2 to Order IX. The disposition may be a dismissal under Rule 8 if the defendant is present; Rule 2 leaves the Court a choice of modes and the power to make such other order as it thinks fit. The plaintiff may then apply under Rule 9 to have it set aside on sufficient cause for his non-appearance, and, in a case open to appeal, he may appeal against a refusal under Order XLIII Rule 1(c). His absence, whatever it cost him in costs, has kept the question of the merits open.
If he attends and says the evidence is not ready, the Court may decide the suit forthwith. His remedy is an appeal against the decree, on the record as it stood on that date — which, on the hypothesis, contains no evidence from him.
The difference is not marginal. One route leads to a hearing on sufficient cause before the trial Court, with the possibility of the suit resuming where it stopped; the other leads to a first appeal on a closed record. The Code reaches that result deliberately: the clauses that distribute the two outcomes were put in by the 1976 Act, and the distributing criterion they chose is presence.
It is possible to see the reason. Clause (a) is addressed to the case where the Court has everybody before it and can be told, there and then, why the act was not done. If the explanation is good, Rule 1 is available and the Court can grant further time. If it is not, nothing is gained by adjourning, and the suit can be decided on what there is. A set-aside remedy would in that situation re-open a question the Court has already heard the party on. The absent party has not been heard, which is why the Order sends his case to a procedure built around hearing him later.
That explains the design. It does not make the asymmetry any less real for the party deciding, on the morning of a date he is not ready for, whether to appear.
Where the Explanation puts the party who has already led evidence
The Explanation to Rule 2, inserted by section 68 of the 1976 Act, qualifies the route into Order IX in one class of case. Where the evidence or a substantial portion of the evidence of any party has already been recorded and that party fails to appear on an adjourned date, "the Court may, in its discretion proceed with the case as if such party were present".
The fiction is narrow and its effect is large. It does not create a new disposition; it removes the basis for the Order IX dispositions, all of which are premised on non-appearance. A party treated as present cannot be dismissed for absence or have the suit heard ex parte against him. What follows instead is a decision in the case as it stands — and, on the terms of the deeming, the Court is in the position clause (a) of Rule 3 describes if the absence coincided with a failure to do an act for which time had been allowed.
So the Explanation makes the stage of the suit decide which regime applies to the same conduct. Absence at the beginning of a trial attracts the reversible dispositions of Order IX. The same absence, once a substantial portion of that party's evidence is on the record, attracts a decision on the merits in his absence, which is appealable and is not open to an application to set it aside. The party who has invested most in the trial is the one for whom non-appearance carries the heavier consequence, and the provision that does this is an Explanation to a rule about failure to appear.
The one place money becomes a bar
The Code does attach a hard consequence to delay, and it is not in Order XVII. Section 35B, inserted by the 1976 Act, provides that if on any date fixed for the hearing of a suit or for taking any step in it a party fails to take the step which he was required by or under the Code to take on that date, or obtains an adjournment for taking it or for producing evidence or on any other ground, the Court may order him to pay the other party costs "reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date". Payment of those costs, on the date next following the date of the order, "shall be a condition precedent to the further prosecution of" the suit by the plaintiff or the defence by the defendant, according to who was ordered to pay. The Explanation applies the condition defence by defence where separate defences have been raised. Sub-section (2) keeps those costs out of the costs awarded by the decree, and provides that if they are not paid a separate order shall be drawn up and is executable against the person liable.
That is the Code's only provision under which an adjournment, as such, can stop a party from proceeding. It is worth noticing what it is not. It is not a limit on the number of adjournments, and it does not operate on the Court's power to grant one. It fixes a price, payable the next day, and makes non-payment a bar. The structural work that the three-adjournment proviso is usually credited with is done, so far as the Code does it at all, by a costs section with a condition precedent attached.
What the Order actually disciplines
Order XVII is two provisions in one. The restrictive half — sufficient cause, reasons in writing, the cap of three, day-to-day hearing, the grounds that clauses (b) to (d) shut out — is addressed to the Court's permission and is enforced only through the record and, eventually, through section 105(1) in an appeal from the decree. The operative half is Rules 2 and 3 together with clause (e) of the proviso, and it is addressed to the party, with consequences that run from the loss of a cross-examination to the loss of the suit.
Three things follow for anyone appearing on an adjourned date.
The first is that the Order's own limits do not supply an objection worth much at the time. A party resisting a fourth adjournment has the proviso to Rule 1(1) to point at, and a Court that grants it anyway commits an irregularity for which the Code provides a remedy at the end of the case and none during it. Clauses (b) to (d) are better material than the numerical cap, because they state grounds that may not be acted on at all rather than a number that may not be exceeded. Clause (e) is not a restriction at all, and is the only part of Rule 1 that can be turned into an order on the spot — which is why the presence of one's own witness in court is a fact worth putting on the record.
The second is that the choice Rule 3 creates should be made knowingly. A party who cannot perform the act for which time was taken is in default whether he appears or not, and the Order gives the Court a wider power against him if he appears. Nothing in that is a reason to stay away — absence invites a disposition the party must then spend an application and possibly an appeal to undo, and under the Explanation to Rule 2 it may invite no such disposition at all once his evidence is substantially recorded. It is a reason to attend with an explanation that engages Rule 1, because the only thing that keeps clause (a) of Rule 3 from being exercised is a reason to grant further time.
The third is that a costs order made on an adjournment is not a postscript. Under section 35B it is a condition on the further prosecution of the suit or the defence, payable the following day, and left unpaid it becomes a separately executable order. The order most likely to be noted and forgotten is the one that has to be complied with the next day.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.