JUDGMENT : Sandeep Sharma, J. Instant petition filed under Article 227 of the Constitution of India, lays challenge to order dated 5.3.2020 (Annexure P-L Colly.) passed by the learned Senior Civil Judge, Shimla in CS No. 31 of 2003 (now numbered as 185-1 of 15/2003), whereby court below held that since no findings on merit have been recorded by the court in former suit bearing CS No. 41 of 1997 and same has been dismissed in default, latter suit i.e. CS No. 31 of 2003 is to continue. 2. For having bird’s eye view, facts, relevant for adjudication of the case are that, person namely Parveer Singh (plaintiff in earlier CS No. 41 of 1997) filed civil suit bearing CS No. 41 of 1997 in the High Court of Himachal Pradesh, claiming that “Knollwsood” is HUF property and therefore, he is entitled to share as a coparcener. In the aforesaid suit, he arrayed his father namely Sardar Govinder Singh as defendant No.2. While aforesaid suit was pending adjudication in the High Court of Himachal Pradesh, above named Govinder Singh, filed CS No. 31 of 2003 (Annexure P-A), claiming similar relief as was claimed by his son Pravir Singh in CS No. 41 of 1997. In the aforesaid suit, learned Single Judge of this Court on the basis of pleadings adduced on record by the respective parties, framed as many as 12 issues, but specifically framed issue No.8, which reads as under: “8. Whether the present suit is liable to be stayed on account of pendency of the previously instituted Civil Suit No. 41 of 1997 titled S. Pravir Singh v. S. Tejinder Singh and others in the High Court of H.P. and Civil Suit 973 of 1994 pending in the High Court of Delhi, as alleged? OPD.” 3. Vide order dated 2.1.2007, learned Single Judge of this Court decided the aforesaid issue against the petitioner-defendant Sardar Govinder Singh and held that findings recorded in the former case i.e. CS No. 41 of 1997, if given, shall operate as res-judicata in the latter case i.e. CS No. 31 of 2003. Though person namely Sardar Govinder Singh (plaintiff in latter suit CS No. 31 of 2003) filed LPA No.6 of 2007, laying therein challenge to order dated 2.1.2007 passed by the learned Single Judge, but same was dismissed vide judgment dated 7.5.2015 (Annexure P-C). Though person namely Sardar Govinder Singh (plaintiff in latter suit CS No. 31 of 2003) filed LPA No.6 of 2007, laying therein challenge to order dated 2.1.2007 passed by the learned Single Judge, but same was dismissed vide judgment dated 7.5.2015 (Annexure P-C). In the aforesaid appeal, specific plea came to be made by Sh. Sardar Govinder Singh (plaintiff in CS No. 31 of 2003) that additional issue i.e. issue No. 12A framed in the suit vide order dated 6.1.2005, has not been framed in the earlier suit and as such, order dated 2.1.2007, deserves to be set-aside, however, Division Bench of this Court while negating the aforesaid plea held that parties are at liberty to raise all pleas in the earlier suit. 4. Though evidence of the Pravir Singh i.e. plaintiff in the former suit and his father Sardar Govinder Singh i.e. petitioner-defendant in the former suit CS No. 41 of 1997 stood recorded in the High Court but on account of change in the pecuniary jurisdiction, suit filed by Pravir Singh i.e. CS No. 41 of 1997 was transferred to the court of learned Additional District Judge, Shimla, and was registered as CS No. 8-S/1 of 14/1997. Similarly, another suit CS No. 31 of 2003, which was stayed vide order dated 2.1.2007, was also transferred to the court below on account of change in pecuniary jurisdiction, however, same could not proceed further in view of stay granted by this Court vide order dated 2.1.2007. In the aforesaid background, proceedings in CS No. 41 of 1997 commenced in the court of learned Additional District Judge, Shimla. Though evidence of the plaintiff stood recorded in afore suit, but repeatedly matter was adjourned for recording the statements of witnesses adduced by the defendant. However, on the subsequent date, defendant was also examined, but despite repeated opportunities, none came present for his cross-examination and as such, learned Additional District Judge vide order dated 9.5.2019 (Annexure P-E) dismissed the suit in default. On account of dismissal of the former suit bearing CS No. 41 of 1997, proceedings in latter suit i.e. CS No. 31 of 2003 commenced, wherein at the first instance, plaintiff Sardar Govinder Singh filed two applications under Order 14 Rule 5 read with Section 151 CPC and Order 7 Rule 14 CPC. On account of dismissal of the former suit bearing CS No. 41 of 1997, proceedings in latter suit i.e. CS No. 31 of 2003 commenced, wherein at the first instance, plaintiff Sardar Govinder Singh filed two applications under Order 14 Rule 5 read with Section 151 CPC and Order 7 Rule 14 CPC. Learned Senior Civil Judge, Shimla, vide order dated 13.9.2019 (Annexure PH) though dismissed the application under Order 14 Rule 5 CPC, but while allowing application under Order 7 Rule 14 CPC permitted the plaintiff Sardar Govinder Singh to adduce on record additional documents. 5. Being aggrieved and dissatisfied with aforesaid order, petitioner-defendant herein i.e. Sardar Tejinder Singh, who is defendant in CS No. 31 of 2003, filed petition under Article 227 of the Constitution of India, but before same could be heard and decided on its own merits, learned counsel for the plaintiff made a statement before this Court that he has instructions to withdraw the applications filed by the original plaintiff before the learned trial court under Order 7 Rule 14 CPC. In view of the aforesaid statement, this court vide order dated 3.1.2020, while permitting the plaintiff to withdraw the application under Order 7 Rule 14 CPC, set aside order dated 13.9.2019 (Annexure-PK). 6. At this stage, it would be apt to take note of the fact that original plaintiff namely Shri Pravir Singh in earlier suit CS No. 41 of 1997 had also filed an application under Order 9 Rule 9 CPC for setting aside order dated 9.5.2019, whereby suit of the plaintiff was dismissed in default, however same was also withdrawn, as a result of which, order of dismissal in default dated 9.5.2019, attained finality. 7. On 5.3.2020, learned Senior Civil Judge, Shimla, after dismissal of the former suit being CS No. 41 of 1997 permitted the plaintiff in latter suit i.e. CS No. 31 of 2003 to lead the evidence. Though defendant Sh. Tejinder Singh (petitioner herein) in that suit opposed the reopening of latter suit CS No. 31 of 2003 on the ground that same is barred by principle of res-judicata, but such plea of him, was not accepted. It was argued on behalf of the petitioner-defendant Sardar Tejinder Singh that since former suit has been dismissed, latter suit CS No. 31 of 2003 cannot proceed further and deserves outright dismissal. It was argued on behalf of the petitioner-defendant Sardar Tejinder Singh that since former suit has been dismissed, latter suit CS No. 31 of 2003 cannot proceed further and deserves outright dismissal. Since vide order dated 5.3.2020, learned Senior Civil Judge held that no finding on merit has been returned in the former suit i.e. CS No. 41 of 1997, latter suit bearing CS No. 31 of 2003 shall continue, petitioner defendant Sardar Tejinder Singh, has approached this Court in the instant proceedings. 8. Mr. R.L. Sood, Senior Advocate, representing the petitioner-defendant vehemently argued that order dated 5.3.2020 impugned in the instant proceedings is not sustainable in the eye of law because same has been passed in sheer violation of order dated 2.1.2007 passed by the learned Single Judge of this Court in CS No. 31 of 2003 further upheld by Division Bench of this Court in LPA No.6 of 2007 vide judgment dated 7.5.2015. While making this Court peruse aforesaid order and judgment, Mr. Sood vehemently argued that findings in the former suit CS No. 41 of 1997 shall operate res-judicata in latter suit. He submitted that since former suit has been dismissed, latter suit cannot proceed further, rather deserves to be dismissed. While making this court peruse order dated 9.5.2019, whereby CS No. 41 of 1997 having been filed by the Pravir Singh came to be dismissed in default, Mr. Sood, vehemently argued that though learned Judge below has used expression “dismissed in default”, but in facts and circumstances of the case, aforesaid order shall be deemed to have been passed under Order 17 Rule 3(a) CPC. While making this court peruse provisions contained under Order 17 Rules 2 and 3 CPC, Mr. Sood, attempted to persuade this Court that since despite various opportunities, plaintiff failed to come present on the given date for the cross-examination of the defendant, suit filed by him shall be deemed to have been dismissed in terms of provisions contained under Order 17 Rule 3(a) CPC. He further contended that findings returned by the court while invoking power under Order 17 Rule 3 (a) CPC would amount to finding on merit and as such, same shall operate as res-judicata as far as latter suit filed by Sardar Govinder Singh is concerned. He further contended that findings returned by the court while invoking power under Order 17 Rule 3 (a) CPC would amount to finding on merit and as such, same shall operate as res-judicata as far as latter suit filed by Sardar Govinder Singh is concerned. He further stated that since entire evidence of the plaintiff stood concluded/ recorded by the court below, explanation to Order 17 Rule 3 CPC would come into operation, as a result of which, Pravir Singh (plaintiff in the earlier suit) shall be deemed to be present on 9.5.2019, and thereafter, court is to proceed under Order 17 Rule 3 (a). He further submitted that issue as to “whether order dated 9.5.2019, has been passed under Order 17 Rules 2 and 3 CPC or order 9 Rule 8 CPC”, could only be adjudicated in the application for restoration filed in CS No. 41 of 1997, but once such application has been withdrawn, order referable under Order 17 Rules 2 and 3 CPC is deemed to have been accepted. 9. Per contra, Mr. Sumit Sood, learned counsel appearing for the respondent/original plaintiff Sardar Govinder Singh vehemently argued that impugned order passed by the learned trial court calls for no interference because same is based upon proper appreciation of facts as well as law. Mr. Sood, while making this Court peruse order dated 9.5.2019, passed by the learned Additional District Judge vehemently argued that same has not been passed invoking power under Order 17 Rule 3 (a) CPC, but in terms of Order 9 Rule 8 CPC. He submitted that bare perusal of aforesaid order clearly reveals that same was not passed on merits, rather suit having been filed by Mr. Pravir Singh i.e. CS No. 41 of 1997 was dismissed in default. He further submitted that though by no stretch of imagination, aforesaid order can be said to have been passed under Order 17 Rule 3 (a) CPC, but even if for the sake of argument, it is accepted that same has been passed under Order 17 Rule 3 (a) CPC, same would not make any difference because no finding on merit has been recorded. He submitted that while invoking power under Order 17 Rule 3 (a) CPC, trial court is required to decide the suit on merit on the basis of pleadings and evidence adduced on record by the parties. He submitted that while invoking power under Order 17 Rule 3 (a) CPC, trial court is required to decide the suit on merit on the basis of pleadings and evidence adduced on record by the parties. He submitted that since in the case at hand, plaintiff Pravir Singh had already led evidence, court below, if intended to have invoked provisions contained under Order 17 Rules 2 and 3 CPC, was required to return finding on merit. He submitted that since no finding on merit ever came to be returned in the former suit i.e. CS No. 41 of 1997, no illegality can be said to have been committed by the court below while ordering continuation of latter suit having been filed by the respondent defendant Sardar Govinder Singh i.e. CS No. 31 of 2003. 10. Having heard learned counsel for the parties and perused material adduced on record, vis-à-vis reasoning assigned in the instant proceedings, this Court finds that facts, as noticed herein above, are not in dispute, rather stands admitted by the parties. Since learned Single Judge of this Court vide order dated 2.1.2007, passed in CS No. 31 of 2003 held that finding in the former suit bearing CS No. 41 of 1997 if given, shall operate as res-judicata in the present case i.e. CS No. 31 of 2003, coupled with the fact that aforesaid finding returned by the learned Single Judge was upheld, in LPA No. 6 of 2007 decided by Division Bench of this Court on 7.5.2015, there is no occasion for this Court to go into that question afresh. 11. Moot question, which needs to be decided in the case at hand is that “whether impugned order dated 9.5.2019, passed by the court below, whereby suit bearing CS No. 41 of 1997 having been filed by Pravir Singh, came to be dismissed in default, can be said to have been passed invoking the provisions contained under Order 17 Rule 3(a) CPC or same is order simpliciter of dismissal in default?” 12. Mr. R.L. Sood, learned Senior Counsel appearing of the petitioner defendant vehemently argued that impugned order dated 9.5.2019, passed by the learned Additional District Judge, Shimla, is deemed to have been passed in the presence of the plaintiff or his counsel. Mr. R.L. Sood, learned Senior Counsel appearing of the petitioner defendant vehemently argued that impugned order dated 9.5.2019, passed by the learned Additional District Judge, Shimla, is deemed to have been passed in the presence of the plaintiff or his counsel. While making this court peruse provisions contained under Order 17 Rules 2 and 3 CPC, especially explanation given under the aforesaid aforesaid provision of law, Mr. Sood attempted to carve out a case that since substantial part of the evidence stood led on record by the plaintiff and matter was only fixed for cross-examination of the defendant, court below had no option, but to dismiss the suit having been filed by the plaintiff in terms of provisions contained Order 17 Rule 3 (a) CPC. 13. Before ascertaining the correctness of the aforesaid submissions made by the learned senior counsel appearing for the petitioner defendant, it would be apt to take note of the provision contained under Order 17 Rules 2 and 3 CPC. “Order 17 Rules 2 & 3 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. 3. Court may proceed notwithstanding either party fails to produce evidence, etc.— 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.” 14. Aforesaid provision of law if read in its entirety, suggests that in the event of failure of the parties to appear on the day fixed, court may proceed to dispose of the suit in one of the modes provided under Order 9 or make such order as it thinks fit. The explanation given below afore provision of law is in the nature of an exception to the general power given under the rule, conferring discretion on the court to act under the specified circumstance i.e. where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If aforesaid situation arises, the court may in its discretion deem as if such party was present. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present. The crucial expression in the Explanation is "where the evidence or a substantial portion of the evidence of a party". There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose, but definitely court while involving power under Order 17 Rule 2 CPC shall have to decide the case on the basis of material available on record. The Court has to be satisfied on the facts of each case about this requisite aspect. 15. Though having carefully perused impugned order dated 9.5.2019, this Court is persuaded to agree with Mr. Sumit Sood, learned counsel for the respondent-original plaintiff Sardar Govinder Singh that by way of aforesaid order suit has been dismissed in default, which could be restored by the court by invoking power under Order 9 Rule 13 CPC on the application, if any, made by the party, but even if it is presumed that order dated 9.5.2019 has been passed by the court below invoking power under Section 17 Rule 2 and 3 CPC, same may be of no help to the petitioner defendant because admittedly, no finding on merit has been recorded by the court while passing impugned order thereby dismissing the suit in default. As has been observed herein above, explanation to Rule 2 of 17 empowers/permits the court to decide the case in the absence of absentee party, but definitely it has to decide the case on the basis of pleadings as well as evidence already on record by the absentee party. Careful perusal of order dated 9.5.2019, though reveals that repeatedly, matter came to be adjourned on the request of the plaintiff in that suit CS No. 41 of 1997 and at one point of time, costs was also awarded in lieu of adjournment, but to pass any order under Order 17 Rules 2 and 3 CPC, it was incumbent upon the court to return finding on the basis of pleadings and evidence, if any, led on record by the parties. Since in the case at hand, plaintiff Pravir Singh had already led evidence and matter was fixed for cross-examination of the defendant, court having taken note of the repeated adjournment taken by the plaintiff could decide the suit on merit in the absence of the plaintiff or his counsel on the basis of material already available on record. 16. Mr. R.L. Sood, learned senior counsel appearing for the petitioner-defendant argued that in the given facts and circumstances of the case, the court below was not required/obliged to specifically mention that order is being passed under Order 17 Rules 2 and 3 CPC and there was no requirement, if any, to return finding on merits, rather on account of willful absence of the plaintiff or his counsel for cross-examination of the defendant on the given date, suit shall be deemed to have been dismissed on merit under Order 17 Rules 2 and 3 CPC. To substantiate his aforesaid plea, he placed heavy reliance upon the judgment passed by coordinate Bench of this court in case titled Asha Devi v. Dau Dayal (deceased) through his LRs, 2019 SCC OnLine HP 1380, wherein it has been held that decision rendered under the provisions of Order 17 Rule 3 CPC is a decree and will operate as res judicata and bar a second suit for the same relief. However, having carefully perused aforesaid judgment in its entirety, this Court finds that same has no application in the present facts and circumstances of the case, rather same is distinguishable. 17. However, having carefully perused aforesaid judgment in its entirety, this Court finds that same has no application in the present facts and circumstances of the case, rather same is distinguishable. 17. There cannot be any quarrel with the aforesaid exposition of law, but facts of the case at hand are totally different from the facts of the case decided by the coordinate Bench of this Court. In the case before the coordinate Bench of this Court, suit was dismissed invoking power under Order 17 Rule 3(a) CPC and subsequent suit filed on the same and similar facts was held to be barred by res-judicata. In Asha Devi’ s case supra, suit filed by the plaintiff for permanent mandatory injunction came to be dismissed under Order 17 Rule 3 (a) CPC on account of his having failed to lead evidence. Though in that case, plaintiff failed to lead evidence, but yet court while dismissing the suit under Order 17 Rule 3(a) CPC passed judgment and decree on the basis of pleadings adduced on record by the respective parties. It would be apt to take note of following paras of the judgment passed in Asha Devi’s case (supra): “21. It was on the basis of the pleadings of the parties that the court of the then Senior Sub Judge, Kullu, on 6.10.2000 framed the following issues: "1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed for? OPP 2. Whether in the alternative, plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff has no enforceable cause of action to file the present suit? OPD 5. Whether the plaintiff has encroached upon the land of the defendant, if so, its effect? OPD. 6. Relief." 22 Admittedly, the plaintiff failed to lead any evidence, and, therefore, the suit was dismissed under Order XVII Rule 3 on 25.3.2000 by observing as under: "Heard. I am satisfied that sufficient opportunities have been afforded to the plaintiff to produce plaintiff's evidence but to no avail. Heard. In view of no evidence on record, the issue No.1 and 2 are decided against the plaintiff and issue No. 3 to 6 are decided against the defendant as having not pressed. Accordingly, the suit of plaintiff is dismissed under Order 17 Rule 3 CPC. Heard. In view of no evidence on record, the issue No.1 and 2 are decided against the plaintiff and issue No. 3 to 6 are decided against the defendant as having not pressed. Accordingly, the suit of plaintiff is dismissed under Order 17 Rule 3 CPC. File, after completion, be consigned to records." 23. Failure to adduce the evidence to prove the allegation of fact has to be held as a dismissal on merits under Order XVII Rule 3 CPC. The dismissal of the suit for want of evidence was a judicial order and admittedly, the same was not assailed in appeal and has, therefore, attained finality and cannot be permitted to be reopened and the said order is binding not only on the parties, but on this court as well. 24 Order XVII Rule 3 CPC reads as under: "3. Court may proceed notwithstanding either party fails to produce evidence, etc.-- 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]." 25. In Rama Rao vs. Suriya Rao and anr., 1876 I.L.R. (1) Mad. 84, it was observed by the Division Bench of Madras High Court that where the relief sought for in respect of certain property in a suit is different from the relief sought for in respect of the same property in a prior suit (between the same parties or their privies), but the title on which the relief sought for is based is the same in both suits, the dismissal of the formal suit for failure to establish such title is a bar to the second suit. Dismissal of a claim for failure on part of plaintiff to produce evidence to substantiate it, is of the same effect as a dismissal founded upon evidence, for the purpose of barring a subsequent suit as res judicata. 26. In Venkatachalam vs. Mahalakshmamma, 1887 (10) Mad. Dismissal of a claim for failure on part of plaintiff to produce evidence to substantiate it, is of the same effect as a dismissal founded upon evidence, for the purpose of barring a subsequent suit as res judicata. 26. In Venkatachalam vs. Mahalakshmamma, 1887 (10) Mad. 272, it was held by another learned Division Bench of Madras High Court that the plea of res judicata ordinarily presupposes an adjudication on the merits; but Section 148 of the Code of Civil Procedure (Act VIII) of 1859 contains a statutory direction that in case the plaintiff neglects to produce evidence and to prove his claim as he is bound to do, the Court do proceed to decide the suit on such material as is actually before it, and that the decision so pronounced shall have the force of a decree on the merits, notwithstanding the default on the part of the plaintiff. 27. ………. 28.. …… 29. Similar issue came up before the learned Division Bench of Oudh High Court in Har Dayal vs. Ram Ghulam, AIR (31) 1944 Oudh 39, wherein the Court was dealing with a suit that had been dismissed for non payment of costs on adjournment and whether the same falls under Order 7 Rule 3 and not Rule 1 and it was observed as under: "In order that the provisions of R.3 should apply with full force and effect it is not necessary that there should be actual decision on the merits. The words "to comply with any previous order' in O. 17 Rule 3 are sufficiently general to include the order for payment of costs occasioned by an adjournment. An order that nonpayment of the costs of adjournment (to enable the plaintiff to implead a certain person as a necessary party) the suit shall stand dismissed falls within the purview of O. 17 Rule. 3 and not R. 1. The Court in dismissing the suit in consequence of that order, must, therefore, be deemed to have decided it on merits. As the order falls within O. 17 R. 3, the dismissal of the suit operates as a bar to the maintainability of the second suit." 30. …………. 31. 3 and not R. 1. The Court in dismissing the suit in consequence of that order, must, therefore, be deemed to have decided it on merits. As the order falls within O. 17 R. 3, the dismissal of the suit operates as a bar to the maintainability of the second suit." 30. …………. 31. What would be the effect of dismissal of the suit under Order XVII Rule 3 CPC is no longer res integra insofar as this Court is concerned as legal position has been elaborately dealt with by this Court (Coram: Justice Arun Kumar Goel, as his Lordship the then was) in Prem Raj Sharma vs. Baldev Verma, 2002 (2) Shim.LC 74 . The relevant observation reads as under: "[17] Before adverting further in the case provisions of Order 17 Rule 3 and Section 11 of the Code of Civil Procedure need to be extracted: Order XVII Rule 3" 3. Court may proceed notwithstanding either party fails to produce evidence, etc. 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. Section 11 Res-Judicata. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I, II, III, IV Xxxxx Explanation (V). Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused. As per provisions of Order 17 Rule 3(a), trial Court had no option but for proceeding in accordance with law when evidence was not produced by the parties before it. Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused. As per provisions of Order 17 Rule 3(a), trial Court had no option but for proceeding in accordance with law when evidence was not produced by the parties before it. In accordance with the mandate of law, it has chosen to proceed to decide the suit forthwith. This resulted in passing of the judgment Ex. PZ. In this context, it may be noted that provisions' of Order 17 Rule 3 Code of Civil Procedure were amended vide Act 104 of 1976. Defendant, failed to produce his evidence as was necessary to the further progress of the suit for which time had been allowed. Had the Court adjourned the case and/or in case Defendant was not present in his suit supra, situation would have been different. Therefore, there is nothing wrong in the matter having been decided forthwith. What is the affect of earlier decision as well as of the provision of Section 11 Explanation (V) Code of Civil Procedure supra will be dealt with hereinafter. [24] A plain reading of Explanation (V) extracted above clearly shows that the relief which was expressly claimed by the Defendant in the suit filed by him on the issues whereon they were at variance, relief could be determined by the Court. It has not been expressly granted. Thus for the purpose of Section 11 Civil Procedure Code, the same shall be deemed to have been refused. In the face of this position, the plea of Mr. Gupta learned Senior Counsel appearing for the Defendant that since issue had not been determined on merits, as such, does not operate as res judicata cannot be accepted. [25] In this context, it may be noted that the doctrine of res judicata is founded on equity, justice, fair play and good conscience. It is based partly on the maxim of Roman Jurisprudence "interest reipublicaeut sit finis litmus", which means that concern the State that there be an end to law suits; and partly on maxim nemo debet bix vexari prounaeteadem cause", which means that no man should be vexed twice over for the same cause. The principle is founded on ancient precedents, has been held to have been dictated by the wisdom and is applicable for all times. The principle is founded on ancient precedents, has been held to have been dictated by the wisdom and is applicable for all times. [26] It may appropriately be observed in this behalf that besides above, principle of res judicata is based on public policy also. It is aimed at judicial verdict attaining finality at some stage. [27] In case the argument of the learned Senior Counsel is taken to its logical end then there would be no end to the litigation and an unsuccessful litigant like Defendant can keep merrily going on with the filing of cases one after the other till and so long he is unable to get desired results. In this behalf, it may also be appropriately noted that the primary requirement of res judicata is title to the property. It was a question which was directly in issue in the suit filed by the Defendant referred to hereinabove. Court at Solan before whom it was filed was competent to have adjudicated the same. Parties were also the same in the earlier suit of the Defendant as well as the present suit. Thus, simply because decision on merits had not been given will not defeat Ex. PZ, whereby the earlier suit of the Defendant stood dismissed for non production of evidence, this fact coupled with the Explanation (V) supra, clearly shows that the relief claimed by the Defendant in his suit was declined to him. [28] Needless to point out in this behalf that when language is simple and meaning is clear nothing needs to be read down in the provision nor external aids are required for interpreting such a provision of law. Once this conclusion is arrived at, what follows is that Section 11 Explanation (V) of the Code of Civil Procedure clearly covers the present case. [29] On behalf of the Defendant, Mr. Bhupender Gupta, learned Senior v. Advocate, referred to some precedents, to which a reference will be made hereinafter. [30] First decision relied upon was in case Salo v. Munshi Ram and Ors., 1985 AIR(HP) 85. What was held in Paras 17 and 18 in it was in the following terms: 17. [29] On behalf of the Defendant, Mr. Bhupender Gupta, learned Senior v. Advocate, referred to some precedents, to which a reference will be made hereinafter. [30] First decision relied upon was in case Salo v. Munshi Ram and Ors., 1985 AIR(HP) 85. What was held in Paras 17 and 18 in it was in the following terms: 17. Sheikh Habibulla v. Jamuna Singh, 1958 AIR(Pat) 95 it was held that the dismissal of a suit on the ground of abatement cannot operate as res judicata though a second suit on the same cause of action will of course be barred, the reason being that resjudicata essentially arises out of a decision given on merits while a bar against fresh action is founded on the provision of law as laid down in the Code of Civil Procedure and not necessarily on an order which is tantamount to a final decision on merit though it is true that for certain purposes that order may operate as judgment. 18. In Sheodam Singh v. Daryao Kumuar, 1966 AIR(SC) 1332 it was held that if the decision in the former suit is not on merits, then the case cannot be said to have been heard and finally decided. The examples of such cases could be that the former suit was dismissed by the trial Court for want of jurisdiction, or for default of Plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifarious ness or on the ground that the suit was badly framed, or on the ground that a technical mistake, or for failure on the part of the Plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the Plaintiff to a decree, or .for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit. This decision does not improve the case of Defendant in view of the discussion in this judgment. [31.] In Ram Nagendra Tiwary and Ors. This decision does not improve the case of Defendant in view of the discussion in this judgment. [31.] In Ram Nagendra Tiwary and Ors. v. jagdamba Ojhian and Ors., 1984 AIR(Pat) 316, plea of res judicata was negatived because the court trying prior suit was not competent to try the same, as such it was held that Section 11 is inapplicable. This is not the situation in the present appeal. Moreover, such an argument was not raised on behalf of Defendant. [32] Similarly, reliance placed on behalf of the Defendant on State of Maharashtra and Anr. v. National Construction Company, Bombay and Anr., 1996 AIR(SC) 2367, is also ill founded. In this case the suit was filed by the State of Maharashtra invoking the bank guarantee furnished by National Construction Company earlier against the Bank only. This was a short cause suit in the Bombay High Court. This was dismissed for want of non joinder of party holding that the contractor was a necessary party. Thereafter, suit was filed by imp leading the Bank as well as Contractor. In this background, after placing reliance on the decision of Sheodam Singh v. Daryao Kunwar supra and on Inacio Martins v. Narayan Hari Naik, 1993 3 SCC 123 , what was held and is relevant in the present case is as under para 8. [33] "This statement of the law by the High Court is, with respect incorrect of the decision of this Court in Sheodhan Singh v. Daryo Kunwar, 1966 AIR(SC) 1332 at p. 1336 ; (1966) 3 SCR 300 at 307, where, while considering the meaning of the words "heard and finally decided", used in Section 11 of the Code, it was held: Wherefor example, the former suit was dismissed by the trial Court for want of jurisdiction or on the ground of nonjoinder of parties and the dismissal is confirmed in appeal (if any), the decision not being on the merits, would not be res judicata in a subsequent suit. (Emphasis supplied) [34] This Court in its recent decision, lilac to Martins v. Narayan Hari Naik, 1993 3 SCC 123 , has reiterated this propositions. It is, therefore, clear that the dismissal of the Short Cause Suit and the subsequent appeal could not have operated as a bar to Spl. Civil Suit No. 27/83. (Emphasis supplied) [34] This Court in its recent decision, lilac to Martins v. Narayan Hari Naik, 1993 3 SCC 123 , has reiterated this propositions. It is, therefore, clear that the dismissal of the Short Cause Suit and the subsequent appeal could not have operated as a bar to Spl. Civil Suit No. 27/83. The plea based on the principle of res judicata fails." [35] A reference to this decision clearly shows that it does not in any manner advance the case of the Defendant. 35. A case nearer to the facts of the present case is Chamaru v. Chippal, 1973 SLJ 146. In this case order passed by the Court in the earlier suit was in the following terms: Counsel for the parties present. Neither the Plaintiff nor his evidence present. Nor any summoned through Court. The suit is accordingly dismissed under Order 17, Rule 3, Code of Civil Procedure, Announced. The file after completion be consigned. Sd/ C.S. Sauhta,Sub Judge, 1st Class, Kangra. In this background, what was held in the second appeal by this Court was as under: 9. It is next contended by the Appellant that as no evidence had been led it was not possible to try the suit on its merits and, therefore, also the suit could not have been dismissed under Order 17 Rule 3. Now, merely because the parties have led no evidence in a suit does not mean that the suit cannot be dismissed. A Plaintiff may file a suit and then be unable to produce any evidence in support of his case. It is open to the court to dismiss the suit on its merits. Dismissal on the merits impliesin the circumstances, that the allegations contained in the plaint were not made out, and the trial Court, therefore, has dismissed the suit. [36] In case Mahalingeshwara Devaru and Anr. v. Seetharama Bhatta and Anr., 1978 AIR(Kar) 213, what was observed and is relevant in the present case is as under: The principle of res judicata is not affected by a subsequent contrary view taken by a superior Court in any other case. A wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. A wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. Therefore, even if a decision happens to be wrong in view of the later judgment of the High Court, it is binding between the parties and its legal effect remains the same whether the reason for the decision was sound or not. , AIR 1966 SC 1061 , Rel. on. [37] In C. Chennaiya Naidu v. Panchayat Board, Vennkadathampatti, 1979 AIR(Mad) 135, while drawing distinction in a order passed under Order 17 Rules 2 and 3, it was held that when both the parties and their counsel were present in Court. The case was called. Order 17 Rule 2 Code of Civil Procedure would not apply and the case would be covered under Order 17 Rule 2 Code of Civil Procedure. In this background, it was held that the District Judge was right in coming to the conclusion that the appeal was competent. [38] In Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his L.Rs., 1990 1 SCC 193 , it was held as under: Thus it is settled law that normally a decree passed by a court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coramnonjudice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the Court to pass a decree which cannot be cured by consent or waiver of the party. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the Court to pass a decree which cannot be cured by consent or waiver of the party. If the court has jurisdiction but there is defect in its exercise which does notgo to the root of its authority, such a defect like pecuniary or territorial could be waived by the party. They could be corrected by way of appropriate plea as its inception or in appellate or revisional forums, provided law permits. The doctrine of res judicata Under Section 11 Code of Civil Procedure is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons Jaim ing under them. Thus the decision of a competent court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate "as res judicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. "But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. The decision on an issue of law founded on fact in issue would operate as res judicata. "But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, Vis not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a Court. Therefore, the doctrine of res judicata does not apply to a case for decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the Court inherently lacks jurisdiction. [39] It is no body's case that decision in the suit of Defendant is a nullity. Rather Defendant has given reasons for not prosecuting the said suit. [40] A Full Bench of Kerala High Court in Kadapurath Mam Khalid v. Beemapura Palamkakkada Sulekha and Ors., 1986 AIR(Ker) 251, held as under: To press into service the doctrine of res judicata or estoppel by record it is enough if the party concerned shows that the parties to both the suits were the same, and are persons whose names are on the record at the time of the decision, even if a party may be a person who got intervened in the suit. Where two tarvards were the parties in both the earlier and subsequent suits the judgment in the earlier suit will not cease to operate as res judicata merely because a finding is recorded in the earlier suit that the power holder of the Karanavan of the tar wad, could \ not have filed the suit on behalf of the tar wad as the properties did not belong to the tar wad. The parties being the same the subsequent suit will not be maintainable. The parties being the same the subsequent suit will not be maintainable. 14 What is required to be proved or established, to hold that there is bar of res judicata for the subsequent suit, is that in both the suits, the title of the parties agitated, is identical, but not the identity of the actual properties involved in the two litigation. It has been so declared by the Supreme Court in Ram Lakshmi Dasi v. Banamali Sen, 1953 AIR(SC) 33. The dictum reads: The test of resjudicat is the identity of title in the two litigations and not the identity of the actual property involved in the two cases. [41] In Nikunja Bihari Das v. Jatindra Nath Kar and Ors., 1956 AIR(Cal) 613, while considering Section 11 of the Code of Civil Procedure, it was observed as under: A decision by necessary implication is as much res-judicata as an express decision. That this is so in the case where Explanation IV of Section 11, Code of Civil Procedure, has to be considered, there can be no doubt, but even in other cases where a matter has been raised in the pleadings but there is no express decision but there is a decision by necessary implication, the Courts have, always held that the principle of res judicata is applicable. 47. Law declared by this judgment squarely covers the facts of the present case and is thus applicable to all fours. A Division Bench of Oudh High Court in Har Dayal v. Rain Ghulam, 1944 AIR(Oudh) 39, held as under: In order that the provisions of Rule 3 should apply with full force and effect it is not necessary that there should be actual decision on the merits. The words "to comply with any previous order" in Order 17, Rule 3 are sufficiently general to include the order for payment of costs occasioned by an adjournment. An order that upon nonpayment of the costs of adjournment (to enable the Plaintiff to implied a certain person as a necessary party) the suit shall stand dismissed falls within the purview of Order 17, Rule 3 and not Rule 1. The Court in dismissing the suit in consequence of that order, must, therefore, be deemed to have decided it on merits. The Court in dismissing the suit in consequence of that order, must, therefore, be deemed to have decided it on merits. As the order falls within Order 17, Rule 3, the dismissal of the suit operates as a bar to the maintainability of the second suit. 48. Examining the present appeal in the light of the facts as enumerated hereinabove as well as on the basis of the decisions of different courts including Supreme Court of India, I am of the considered view that the relief having been not expressly allowed in the earlier suit filed by the Defendant shall be deemed to have been declined to him and thus mere non decision of all of those issues as was urged on his behalf of the Defendant does not stop the operation of Section 11 Explanation (V) of the Code of Civil Procedure. Once the judgment was passed under Order 17 Rule 3 Code of Civil Procedure particularly when identity of title to property in both the suits was/is the same, parties were/are the same and Court was competent to have adjudicated; then on the basis of the legal position explained above it can be safely said that the claim of the Defendant stood negatived in the earlier suit. Therefore, questions No. 1 and 6 are decided against the Defendant." 32 It is, thus, clear from the aforesaid exposition of law that a decision rendered under the provisions of Order XVII Rule 3 CPC will operate as res judicata and bar a second suit for the same relief i.e. mandatory injunction. Therefore, the suit out of the present appeal emanates clearly not maintainable and barred by res judicata.” 18. In the aforesaid judgment, Hon’ble Apex Court held that court dismissing the suit under Order 17 Rules 2 and 3 CPC must have decided it on merits. Till the time, earlier suit is not decided on merit, subsequent suit on same and similar facts cannot be closed or dismissed being hit by principle of res-judicata. Since judgment passed in Har Dayal v. Ram Ghulam 1943 SCC Online Oudh CC 131, AIR 1944 Oudh 39, pressed into service by Mr. R.L. Sood, learned Senior counsel appearing for the petitioner has been already considered by the coordinate Bench of this Court in Asha Devi v. Dau Dayal, 2019 SCC Online HP 1380, there is no need to take note of the same. R.L. Sood, learned Senior counsel appearing for the petitioner has been already considered by the coordinate Bench of this Court in Asha Devi v. Dau Dayal, 2019 SCC Online HP 1380, there is no need to take note of the same. True, it is that in the aforesaid judgment, it came to be held that upon non-payment of costs of adjournment, suit shall stand dismissed and same would fall clearly within the purview of Rule 3 and not Rule 1. However, in the case at hand, though vide order dated 5.12.2018, costs of Rs. 8,000/- was imposed in lieu of the adjournment sought by him but since no steps, if any, ever came to be taken by the plaintiff to get the suit dismissed on account of non-payment of costs, he is estopped from taking such plea at this stage, especially, when zimini orders available on record reveal that after passing of order dated 5.12.2018, matter was adjourned twice on 19.12.2018 and 18.4.2019. Even perusal of order dated 9.5.2019, impugned in the instant proceedings nowhere suggests that plea with regard to non-payment of costs awarded vide order dated 5.12.2018, was raised by the plaintiff at the time of passing of order dated 9.5.2019. Moreover, if the aforesaid judgment is read in its entirety, it suggests that suit was in its preliminary stage and there was no option for the court, but to dismiss the same on merit. 19. Similarly, judgment passed by the Hon’ble Apex Court in Aspi Jal and Anr. v. Khushroo Rustom Dadyborjor, 2013 (4) SCC 333 , relied upon by Mr. R.L. Sood, learned Senior counsel, is of no help as far as present case is concerned. In the aforesaid case, court specifically dealt with the applicability and object of provision contained under Sections 10 and 11 CPC as well as application of doctrine of res-judicata. In the aforesaid judgment, there was no occasion for the court to deal with provision contained under Order 17 Rule 3 CPC. There cannot be any quarrel with the proposition of law laid down in the aforesaid judgment that underlying object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same cause of action, but that is not the question which needs determination in the case at hand. There cannot be any quarrel with the proposition of law laid down in the aforesaid judgment that underlying object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same cause of action, but that is not the question which needs determination in the case at hand. This Court has already observed in the earlier part of the judgment that in terms of order dated 2.1.2007, passed in CS No. 31 of 2003, finding if any, given in former suit i.e.CS No. 41 of 1997 shall operate as res-judicata in the latter suit i.e. CS No. 31 of 2003, but admittedly, no findings on merit have been returned in former suit and as such, latter suit shall not be barred by principle of re-judicata. In the aforesaid judgment, Hon’ble Apex Court has held that use of negative expression in Section 10 i.e. “no court shall proceed with the trial of any suit” makes the provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied. Since in the case at hand, there is nothing to suggest that earlier suit was decided on merits that too in terms of order 17 Rule 3 CPC, plea raised by Mr. R.L. Sood, learned Senior Counsel that latter suit bearing CS No. 31 of 2003 cannot continue being hit by principle of res-judicata, deserves rejection being devoid of any merit. 20. Similarly, reliance placed upon G. Ratna Raj (Dead) by his LRs v. Sri Muthukumarasamy Permanent Fund Ltd and Anr, 2019 (11) SCC 301 , is wholly mis-placed in the given facts and circumstances of the case. In the afore judgment, Hon’ble Apex Court had an occasion to deal with the scope and applicability of provisions contained Order 17 Rules 2 and 3 CPC, order 9 Rule 6 (a) and Order 9 Rule 13 CPC. If the aforesaid judgment is read in its entirety, it clearly reveals that where the plaintiff appears and after recording his evidence, his case was closed on account of absence of the defendant on the date fixed, explanation under Order 17 Rules 2 CPC shall be attracted. If the aforesaid judgment is read in its entirety, it clearly reveals that where the plaintiff appears and after recording his evidence, his case was closed on account of absence of the defendant on the date fixed, explanation under Order 17 Rules 2 CPC shall be attracted. In such cases, court may proceed under Order 17 Rule 3 (b) read with Order 17 Rule 2 of the Code for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order 9 of the Code. Moreover, in the case before the Hon’ble Apex Court, evidence of the plaintiff was recorded, but since none came forward on behalf of the plaintiffs to cross-examine the defendant or his witness, they were proceeded ex-parte in the proceedings. After proceedings defendant ex-parte, learned Single Judge of the High Court passed preliminary decree against the defendant. Defendant filed application under Order 9 Rule 13 CPC for setting aside decree. Single Judge dismissed both the applications being not maintainable holding that preliminary decree being ex-parte cannot be set-aside by way of application under Order 9 Rule 13 CPC, however, Division Bench in appeal held that preliminary decree was an ex-parte decree passed by the learned trial court and thereafter, application filed under Order 9 Rule 13 CPC was maintainable. It would be apt to take note of the following paras: “21. Now when we examine the facts of the case at hand keeping in view the law laid down in the case of B Janakiramaiah Chetty (supra), we find that the plaintiff’s evidence was recorded and his case was also closed. It is not in dispute that the defendants were placed ex parte on the date when the case was fixed for recording defendants’ evidence but the same was not recorded due to the defendants’ absence on the said date. In other words, it was a case where the defendants did not lead any evidence. 22. It is not in dispute that the defendants were placed ex parte on the date when the case was fixed for recording defendants’ evidence but the same was not recorded due to the defendants’ absence on the said date. In other words, it was a case where the defendants did not lead any evidence. 22. In such a situation arising in the case, in our view, the case at hand would not fall under Explanation to Order 17 Rule 2 of the Code because in order to attract the Explanation, "such party" which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treat “such party” as "present" on that day and is accordingly empowered to proceed in the suit. 23. In this case, the party, who was absent and was proceeded ex parte was the "defendants" and they had not led any evidence whereas it was the plaintiff, who was present and had led his evidence. 24. In other words, if the plaintiff had remained absent and was found to have led evidence, the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the plaintiff as "present" for passing appropriate orders. Such is, however, not the case here. 25. Similarly, in converse situation, if the defendants had remained absent (as has happened in this case) on that date and if it would have noticed that they had adduced the evidence either fully or substantially prior to the date on which they were proceeded ex parte, the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the defendants as "present" on that day for passing appropriate orders in the suit. Such is, however, again not the case here.” 21. In the aforesaid judgment, Hon’ble Apex Court while interpreting crucial expression in the Explanation “where the evidence or a substantial portion of the evidence of a party” held that there is a positive purpose in this legislative expression, which would mean that the evidence on record is sufficient to substantiate the absentee party’s stand and for disposal of the suit. In the aforesaid judgment, Hon’ble Apex Court while interpreting crucial expression in the Explanation “where the evidence or a substantial portion of the evidence of a party” held that there is a positive purpose in this legislative expression, which would mean that the evidence on record is sufficient to substantiate the absentee party’s stand and for disposal of the suit. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision, meaning thereby, while passing order, if any, Order 17 Rule 3 CPC, though court shall deem the defendants to be present, but definitely shall decide the suit on the basis of pleadings as well as evidence adduced on record by the respective parties at the time of passing of the order. 22. In other cases cited by learned senior counsel for the petitioner, Sh. S.S. Brar v. Smt. Gulner Zia, 2014 SCC Online Del 392, C. Chennaiya Naidu v. Panchayat Board, Venukadathampatti, 1978 SCC Online Mad 101 and C. Chennaiya Naidu v. Panchayat Board, Vennkadathampatti, 1979 AIR (Mad) 135, though courts had an occasion to deal with the provision contained Order 17 Rules 2 and 3 CPC, but in all the aforesaid cases, learned trial court while invoking power under Order 17 Rules 2 and 3 CPC passed ex-parte decree against which opposite party could always file application under Order 9 Rule 13 CPC for setting aside ex-parte decree. However, in the case at hand, no ex-parte decree was passed, rather suit was dismissed in default. Since there was no finding on merit and order of dismissal in default passed in terms of provisions contained under Order 9 Rule 8 CPC, no illegality can be said to have been committed by the court below while ordering that subsequent suit would continue. 23. It would be apt to take note of the judgment passed in Case B. Janakiramaiah Chetty v. A.K. Parthasarthi and Ors, AIR 2003 SC 3527 , wherein Hon’ble Apex Court while holding that power under Order 17 Rules 2 and 3 CPC can be adopted only when the absentee party has already led evidence or a substantial part thereof. 23. It would be apt to take note of the judgment passed in Case B. Janakiramaiah Chetty v. A.K. Parthasarthi and Ors, AIR 2003 SC 3527 , wherein Hon’ble Apex Court while holding that power under Order 17 Rules 2 and 3 CPC can be adopted only when the absentee party has already led evidence or a substantial part thereof. Most importantly, in the aforesaid judgment, Hon’ble Apex Court has held that before passing order under the aforesaid provision of law, the Court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the Court to record its satisfaction in that perspective. Relevant paras of the aforesaid judgment read as under: “8. In order to determine whether the remedy under Order IX is lost or not what is necessary to be seen is whether in the first instance the Court had resorted to the Explanation of Rule. 2. 9.The Explanation permit, the Court in its discretion to proceed with a case where substantial portion of 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. As the provision itself shows, discretionary power given to the Court to be exercised in a given circumstances. For application of the provision, the Court has to satisfy itself that (a) substantial portion of the evidence of any party has been already recorded; (b) such party has failed to appear on any day and (c) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the Court to adopt any of the modes provided in Order IX or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The Explanation is in the nature of an exception to the general power given under the Rule, conferring discretion on the Court to act under the specified circumstance i.e. where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the Court may in its discretion deem as if such party was present. If such is the factual situation, the Court may in its discretion deem as if such party was present. Under Order IX Rule 3 the Court may make an order directing that the suit be dismissed when neither party appears when the suit is called on for hearing. There are other provisions for dismissal of the suit contained in Rules 2, 6, and 8. We are primarily concerned with a situation covered by Rule 6. The crucial words in the Explanation are 'proceed with the case'. Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the Court or not. 10. In Rule 2, the expression used is "make such order as it deems fit", as an alternative to adopting one of the modes directed in that behalf by Order IX. Under Order XVII Rule 3(b), only course open to the Court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the Court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the Court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the Rule. While Rule 2 speaks of disposal of the suit in one of the specified modes. Rule 3 empowers the Court to decide the suit forthwith. The basic distinction between the two Rules. However, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the Court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present.” 24. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the Court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present.” 24. In the aforesaid judgment, Hon’ble Apex Court has held that if the evidence is sufficient for disposal of the suit, there is no need for adjournment or defer the decision, meaning thereby, court while dismissing the suit by invoking provisions contained under Order 17 Rules 2 and 3 CPC is required to go into the evidence led on record by the plaintiff or defendant and after being satisfied that no case is made out shall pass judgment and decree. 25. In case titled Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 , Hon’ble Apex Court categorically held that if the former suit is dismissed by the trial court for want of jurisdiction, or for default of plaintiff 's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res-judicata in a subsequent suit. Para 13 of the afore judgment is reproduced herein below: “13. This brings us to the main point that has been urged in these appeals, namely, that the High Court had not heard and finally decided the appeals arising out of suits Nos. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation while the other appeal was dismissed on the ground that the appellant therein had not taken steps to print the records. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation while the other appeal was dismissed on the ground that the appellant therein had not taken steps to print the records. It is therefore urged that the two appeals arising out of suits Nos. 77 and 91 had not been heard and finally decided by the High Court, and so the condition that the former suit must have been heard and finally decided was not satisfied in the present case. Reliance in this connection is placed on the well-settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff 's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit. But none of these considerations apply in the present case, for the Additional Civil Judge decided all the four suits on the merits and decided the issue as to title on merits against the appellant and his father. It is true that the High Court dismissed the appeals arising out of suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may itself not be on the merit the result of the High Court's decision is to confirm the decision on the issue of title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree of the trial court on the merits, whatever may be the reason for the dismissal of the appeals arising from suits Nos. 77 and 91. In these circumstances though the order of the High Court itself may not be on the merits, the decision of the High Court dismissing the appeals arising out of suits Nos. 77 and 91 was to uphold the decision on the merits as to issue of title and therefore it must be held that by dismissing the appeals arising out of suits Nos. 77 and 91 the High Court heard and finally decided the matter for it confirmed the judgment of the trial court on the issue of title arising between the parties and the decision of the trial court being on the merits the High Court's decision confirming that decision must also be deemed to be on the merits. To hold otherwise would make res judicata impossible in cases where the trial court decides the matter on merits but the appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trial court on the merits. It is well-settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicata again becomes res subjudice and it is the decree of the appeal court which will then be res judicata. It is well-settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicata again becomes res subjudice and it is the decree of the appeal court which will then be res judicata. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming into the trial court's decision given on merits, the appeal court's decree cannot be res judicata, the result would be that even though the decision of the trial court given on the merits is confirmed by the dismis- sal of the appeal on a preliminary ground there can never be res judicata. We cannot therefore accept the contention that even though the trial court may have decided the matter on the merits there can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the appeal court is confirmation of the decision of the trial court given on the merits. Acceptance of such a proposition will mean that all that the losing party has to do to destroy the effect of a decision given by the trial court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties. We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal. 26. In case titled Ram Gobinda Dawan and Ors v. Smt. Bhaktabala 1971(1) SCC 387 , Hon’ble Apex Court has held that former suit must have been decided on merit to get the latter suit rejected on the principle of doctrine of res-judicata. 26. In case titled Ram Gobinda Dawan and Ors v. Smt. Bhaktabala 1971(1) SCC 387 , Hon’ble Apex Court has held that former suit must have been decided on merit to get the latter suit rejected on the principle of doctrine of res-judicata. Paras 23 to 25 of the afore judgment read as under: “23. For an earlier decision to operate as res-judicata it has been held by this Court in Pulavarthi Venkata Subba Rao and others v. Valluri Jagannadha Rao and others(1) that the same must have been on a matter which was 'heard and finally decided'. 24. In Sheodan Singh v. Smt. Daryao Kunwar(2) the question whether a decision given by the High Court dismissing certain appeal on the ground of limitation or on the ground that the party had not taken steps to prosecute the appeal operates as resjudicata, was considered by this Court. In that case A had instituted against B two suits asserting, title to a certain property. B contested those claims and also instituted two other suits to establish his title to the same property as against A. A's suits were decreed and B's suits were dismissed. B filed four appeals, two appeals against the decision given in A's suits and two appeals against the dismissal of his two suits. It is seen that all the appeals were taken on the file of the High Court but the two appeals filed by B against the decision in the suits instituted by him were dismissed by the High Court on the grounds that one was filed beyond the period of limitation and the other for non-prosecution. At the final hearing the High Court took the view that the dismissal of B's two appeals, referred to above, operated as resjudicata in the two appeals filed by B against the decision in A's suits on the question of title to the property. It was urged before this Court on behalf of B that the dismissal of his appeals on the grounds of limitation and non-prosecution by the High Court does not operate as res-judicata as the High Court cannot be considered to have 'heard and finally decided' the question of tit,--. This contention was not accepted. This Court referred to instances where a former suit was dismissed by a trial court for want of jurisdiction or for default of plaintiff's appearance etc. This contention was not accepted. This Court referred to instances where a former suit was dismissed by a trial court for want of jurisdiction or for default of plaintiff's appearance etc. and pointed out that in respect of such class of cases, the decision not being on merits, would not be res-judicata in a subsequent suit. It was further pointed out that none of those considerations apply to a case where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing. It was held that such dismissal 'by an appellate court has the effect of confirming the decision of the trial court on merits, and that it amounts to the appeal being heard and finally decided on the merits whatever may be the ground. for dismissal of the appeal". 25. It will be seen from the above reasoning that in order to operate as res-judicata, the previous decision must have been given after the matter was heard and finally decided on merits. This Court has further held' that the High Court, in that case, when it dismissed the two appeals in' question, though on a preliminary ground of limitation or default in printing must be considered to have heard and finally decided on merits. Far from supporting Mr. Mukherjee's contention that a decision given in default of appearance under any circumstance, operates as res-judicata, the above decision lays down clearly that a previous decision to operate as res-judicata must be one in a case heard and finally decided on merits.” 27. In case titled State of Uttar Pradesh and Anr v. Jagdish Sharan Agrawal and Ors, 2009 (1) SCC 689 , Hon’ble Apex Court has held that previous suit dismissed in default for want of prosecution, cannot be termed as decision on merit and as such, shall not operate as res-judicata. Relavants paras of the aforesaid judgment are reproduced herein below: “14. In the present case, the suit filed by Nagar Palika was dismissed on technical ground and in any case the State was not a party. So far the suit where the state was a party and amendments were made, the same was dismissed for non- prosecution. But the same was not dismissed under Order 9 Rule 8. In the present case, the suit filed by Nagar Palika was dismissed on technical ground and in any case the State was not a party. So far the suit where the state was a party and amendments were made, the same was dismissed for non- prosecution. But the same was not dismissed under Order 9 Rule 8. Order 9 Rule 8 and Order 9 Rule 9 of CPC read as follows: 8. Procedure where defendant only appears Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 9. Decree against plaintiff by default bars fresh suit (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. Therefore Order IX Rule 9 cannot be said to be applicable. The dismissal of the suit for non-prosecution was not a decision on merit. Consequently, the said order cannot operate as Resjudicata. 15. Above being the position the High Court's order is clearly unsustainable and is set aside. The matter is remitted to the District Judge, Lalitpur to decide the proceeding on merit. Appeals are allowed but without any order as to costs.” 28. Consequently, the said order cannot operate as Resjudicata. 15. Above being the position the High Court's order is clearly unsustainable and is set aside. The matter is remitted to the District Judge, Lalitpur to decide the proceeding on merit. Appeals are allowed but without any order as to costs.” 28. Since in the case at hand, plaintiff had not come present to cross-examine the defendant, court below taking recourse of the Order 9 Rule 6 (a) ought to have passed preliminary decree under Order 17 Rule 2 CPC and same being ex-parte decree within the meaning of Order 9 Rule 6 (a) could be set-aside by way of application, if any, made under Order 9 Rule 13 CPC. In this regard reliance is placed upon judgment passed by the Hon’ble Apex Court G. Ratna Raj (Dead) by his LRs v. Sri Muthukumarasamy Permanent Fund Ltd and Anr, 2019 11 SCC 301 , wherein in paras 26 and 27, it has been held as under: “26. We are, therefore, of the view that since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Order 17 Rule 3 (b) read with Order 17 Rule 2 of the Code for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order 9 of the Code or could have made any other order as it thinks fit. 27. As mentioned above, the Trial Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree. Such decree, in our opinion, was an "ex parte decree" within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants.” 29. Such decree, in our opinion, was an "ex parte decree" within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants.” 29. Recently Hon’ble Apex Court in case titled Prem Kishore and Ors v. Brahm Prakash and Ors, 2023 Live Law (SC) 266, has held that power conferred on Courts under Rule 3 of Order 17 of the CPC to decide the suit on the merits for the default of a party is a drastic power which seriously restricts the remedy of the unsuccessful party for redress. While observing that power under Rule 3 Order 17 shall be used sparingly in exceptional cases, Hon’ble Apex Court has held that there must be some material for a decision on the merits, even though the materials may not be technically interpreted as evidence. Most importantly, Hon’ble Apex Court has held that an order closing the proceedings is not final decision of the suit within the meaning of Order 9 Rule 8 and Order 17 Rule 3 CPC and same shall not operate as res judiciata. Relevant paras of the afore judgment read as under: “52. The power conferred on Courts under Rule 3 of Order 17 of the CPC to decide the suit on the merits for the default of a party is a drastic power which seriously restricts the remedy of the unsuccessful party for redress. It has to be used only sparingly in exceptional cases. Physical presence without preparedness to co-operate for anything connected with the progress of the case serves no useful purpose in deciding the suit on the merits and it is worse than absence. In any contingency, the discretion is always with the Court to resort to Rule 2 or 3 respectively or to grant an adjournment for deciding the suit in a regular way in spite of default. Rules 2 and 3 respectively are only enabling provisions. In order to decide the suit on the merits, the mere existence of the conditions enumerated in Rule 3 alone will not be sufficient. There must be some materials for a decision on the merits, even though the materials may not be technically interpreted as evidence. Rules 2 and 3 respectively are only enabling provisions. In order to decide the suit on the merits, the mere existence of the conditions enumerated in Rule 3 alone will not be sufficient. There must be some materials for a decision on the merits, even though the materials may not be technically interpreted as evidence. Sometimes the decision in such cases could be on the basis of pleadings, documents and burden of proof. Anyhow, it is appreciable for the Court to indicate by the judgment that the decision is for default or on the merits. The only alternative of the Court in cases covered by Rule 3 or the explanation to Rule 2 is not to decide on the merits alone. If such an interpretation is given, it will amount to an unjustified preference to one who purposely absents than to one who presents but unable to proceed with the case. 'Appearance' and 'presence' have well recognised meanings. They imply presence in person or through pleader properly authorised for the purpose of conducting the case. Rule 3 comes into play only when presence is to proceed with the case, but default is committed in any one of the three ways mentioned in Rule 2 or explanation to Rule 2 is extracted. Those are cases in which some materials are there for the Court to decide the case on the merits and not cases where decision could only be for default. That is clear from a combined reading of Rules 2 and 3 respectively and the explanation. In this case, none of these conditions were present and the decision was evidently for default. Rule 2 alone is attracted. (see : R. Ravindran v. M. Rajamanickam, 2006 SCC Online Mad 169) 53. The order passed by the Rent Comptroller dated 27.01.1998 referred to in para 8 of this judgment, has a different angle too. Let us once again read the order passed by the Rent Controller closely. The order is in two parts. In the first part, the Rent Controller says that the counsel for the plaintiff is present. Then, he proceeds to observe that the counsel for the plaintiff made a statement that no witness has come today nor they were summoned. The Rent Controller, further, notes that on none of the grounds further adjournment has been prayed for. In the first part, the Rent Controller says that the counsel for the plaintiff is present. Then, he proceeds to observe that the counsel for the plaintiff made a statement that no witness has come today nor they were summoned. The Rent Controller, further, notes that on none of the grounds further adjournment has been prayed for. Thereafter, he states that the last opportunity was granted to the plaintiff on 09.09.1997 and thereafter, on 01.11.1997. However, the plaintiff did not care to call his witnesses. In such circumstances, the Rent Controller closed the eviction petition proceedings. The exact words used by the Rent Controller in the order dated 27.01.1998 are: “the PE is thus closed.” In the second part of the order, the Rent Controller, thereafter, proceeds to observe that since the relationship of Landlord-Tenant is under dispute and the plaintiff has failed to produce any evidence to establish such relationship, he did not find any 18 good reason to fix the case further for recording of evidence. In such circumstances, he dismissed the eviction petition, as the plaintiff could be said to have failed to establish his case. In the last, he observed that the file be consigned. 54. At the stage of hearing of the case, Order 17 of the CPC, applied. Under that Order on a date of adjourned hearing, if a party was absent, the Court either would act under Order 9 or otherwise as it thought fit; or if a party was present but it did not produce evidence, it would proceed to decide the suit forthwith without benefit of evidence. This last thing tantamounts that the Court was to say whether the suit was or was not proved, either wholly or in part and to pass the decree accordingly. 55. The moot question is whether the eviction petition was dismissed for default which dismissal would certainly bar a fresh suit if instituted on the same cause of action. The words, which we have quoted above, certainly do not mean dismissal either on merits or on default. It was argued before us that the order should only be taken to mean what an order under Order 17 can possibly be and nothing else. We are not impressed by such submission. The words, which we have quoted above, certainly do not mean dismissal either on merits or on default. It was argued before us that the order should only be taken to mean what an order under Order 17 can possibly be and nothing else. We are not impressed by such submission. The order did not purport to be one of dismissal for default or on merits and it cannot be taken to mean other than what it purported to be. It is in ordinary phraseology; not legal phraseology and it cannot be divested of its ordinary meaning. Its ordinary meaning is that the proceeding was closed and the suit would not count as a pending one. The later description would be redundant if the order was one of final disposal of the suit. The order did not purport to be a final disposal of the suit. It merely stopped the proceedings. It did nothing more. This is not final decision of the suit within the meaning of Order 9 Rule 8 and Order 17 Rule 3 resply of the CPC. 30. No doubt, vide order dated 2.1.2007, passed by this Court in CS No. 31 of 2003, it was ordered that finding returned in former case i.e. CS No. 41 of 1997 shall operate as res-judicata in latter suit i.e. CS No. 31 of 2003, but since no finding, if any, ever came to be recorded in the former suit i.e. CS No. 41 of 1997, latter suit merely on account of dismissal of former suit in default cannot be closed by applying principle of res-judicata. 31. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this Court finds no merit in the present petition and accordingly, same is dismissed and order impugned in the instant proceedings is upheld. Since parties have been litigating for more than two decades, this Court hopes and trusts that court below would make all out efforts to conclude the trial expeditiously, preferably, within one year. Learned counsel for the parties undertake to cause presence of their respective clients before the court below on 15.6.2023, enabling it to proceed with the matter in terms of mandate contained in the instant judgment. Since specific issue with regard to limitation has been framed, same shall be decided at the first instance by the learned trial court.