Adjournments (Order XVII)

Order XVII of the Code of Civil Procedure, 1908 governs adjournments — the court's power to grant time to a party and to postpone the hearing of the suit. The Order is short, only three rules, but doctrinally heavy. Rule 1 confers the discretion and caps it: not more than three adjournments per party during the hearing of the suit, and only where sufficient cause is shown, with reasons recorded in writing. Rule 2 supplies the consequence where the parties fail to appear on the adjourned date — the court may proceed under Order IX or make such other order as it thinks fit. Rule 3 supplies the consequence where a party, having obtained time, fails to produce evidence or perform any necessary act — the court may decide the suit forthwith if the parties are present, or proceed under Rule 2 if they are absent.

This chapter sets out the statutory anchor, the 1976 and 2002 amendments that progressively tightened the discretion, the five provisos under Rule 1(2) that govern counsel illness, witness presence and party readiness, the distinction between Rule 2 and Rule 3 settled by the Supreme Court in Mohandas v. Ghisia Bai, the line between Order IX Rule 6 (default at first hearing) and Order XVII Rule 2 (default at adjourned hearing), and the practical guidance for the trial-court practitioner facing or seeking an adjournment.

Statutory anchor and scheme

Order XVII follows naturally on the regime for summoning and attendance of witnesses. Once the witnesses have been listed and summoned, the trial opens; the court must then manage the calendar so that the case is disposed of expeditiously, but without prejudice to a party's reasonable need for time. Rule 1(1) gives the court the power to grant time at any stage of the suit and to adjourn the hearing for reasons recorded in writing, "if sufficient cause is shown." The proviso, inserted by the Code of Civil Procedure (Amendment) Act, 1999, brought into force on 1 July 2002, caps the discretion: no such adjournment shall be granted more than three times to a party during the hearing of the suit.

The scheme is a deliberate response to the chronic problem of delay in civil litigation. The 1976 amendment had inserted Rule 1(2) provisos (a) to (e), requiring day-to-day continuation once the hearing has commenced and limiting the grounds on which adjournment may be sought. The 1999 amendment added the three-adjournment cap and required reasons to be recorded in writing for every adjournment. Together, the amendments reflect the Code's core managerial premise — explored more broadly in our chapter on the Code of Civil Procedure — that the trial court is not a passive arena but an active manager of the case.

Rule 1(1) — sufficient cause and the three-adjournment cap

The court's power under Rule 1(1) is discretionary. On the one hand, no adjournment should be granted if no sufficient cause is shown; on the other, the court should not refuse adjournment if sufficient cause is shown. The court must not be too technical in dealing with a request for adjournment, as the Supreme Court emphasised in Commissioner of Income Tax v. Express Newspapers Ltd, AIR 1994 SC 1448. The discretion to grant time stands on a different footing from the discretion to set aside a default — the latter is governed by the regime on appearance and default procedure and is anchored in "sufficient cause" of a higher standard. What constitutes sufficient cause is a question of fact in each case; neither the Supreme Court nor a High Court will lightly interfere with the lower court's exercise of discretion, as held in Thakur Sukhpal Singh v. Thakur Kalyan Singh, AIR 1963 SC 146.

The three-adjournment cap in the proviso to Rule 1(1) requires careful reading. The Supreme Court in Salem Advocate Bar Association v. Union of India, AIR 2005 SC 3353, read the proviso together with proviso clause (b) to Rule 1(2). The Court held that Order XVII does not forbid adjournment where the circumstances are beyond the control of the party — in such a case there is no restriction on the number of adjournments to be granted. The cap applies to adjournments sought without such circumstances; once the party can demonstrate that the cause is beyond its control, the cap relaxes. The Salem Advocate gloss is the practical key: the cap is on routine requests, not on adjournments forced by genuine emergency.

The Allahabad High Court in Chandra Prakash Ojha v. District Judge Bareilly, AIR 2004 All 113, applied the same logic in reverse — the cap is a floor on discipline, not a ceiling beyond which the court is helpless. The corollary anchored in our chapter on inherent powers under Section 151 is that the court retains residual discretion to control its own process where the proviso would otherwise produce manifest injustice. In a probate proceeding where 90 dates had been fixed and 43 were for final hearing, the High Court directed expeditious disposal — the three-adjournment cap could not be used as a shield to indefinitely delay. The Orissa High Court in Bisandayal v. United Bank of India, AIR 2004 Ori 86, similarly observed that the trial court must control the proceedings rather than play as a toy in the hands of litigants.

Rule 1(2) provisos (a) to (e) — the 1976 amendments

Rule 1(2), as amended in 1976, supplies five provisos that further structure the discretion. Proviso (a) requires that, once the hearing has commenced, it shall be continued from day to day until all witnesses in attendance have been examined, unless the court records exceptional reasons for adjournment beyond the following day. The day-to-day rule is the core managerial device of the modern trial court; it is reflected in our chapter on the hearing of the suit, where examination-in-chief and cross-examination are expected to follow each other in quick succession.

Proviso (b) restricts adjournment requests by a party to circumstances beyond the party's control. Proviso (c) excludes one particular ground: the engagement of the party's pleader in another court is not by itself a ground for adjournment. The Calcutta High Court in Pijush Kanti v. Kinnori Mullick, AIR 1984 Cal 284, applied the same logic to the absence or engagement of senior counsel — particularly where the other side's lawyer is present and ready to proceed.

Proviso (d) governs counsel illness: where the illness or inability of the pleader is put forward, the court shall not grant adjournment unless satisfied that the party could not have engaged another pleader in time. The Gujarat High Court in V.R. Pandya v. Taraben, AIR 1981 Guj 226, supplied the practical qualification — to ask a litigant in India to engage another advocate there and then is tantamount to a refusal to look at the obvious; at least a day's time should be given. The same court in Bashir Ahmed v. Mehmood Hussain Shah, AIR 1995 J&K 27, allowed adjournment where the cross-examination of the plaintiff was incomplete and the defendant's counsel had fallen ill — engaging new counsel at that very hearing would be fraught with serious consequences.

Proviso (e) is the witness-management rule: where a witness is present in court but the party or pleader is not present, or is present but not ready to examine or cross-examine, the court may record the statement of the witness and dispense with examination-in-chief or cross-examination by the absent or unready party. The Supreme Court in Manohar Singh v. D.S. Sharma, AIR 2010 SC 508, qualified the proviso: where a genuine and bona fide request for adjournment is made, the court should grant time on payment of costs rather than resort to forfeiture of the right to cross-examine. The proviso is a coercive lever, not a default rule.

Lawyer strikes and bar boycotts

The Supreme Court in Raman Services Pvt Ltd v. Subhash Kapoor, AIR 2001 SC 207, deprecated in strong terms the practice of adjourning cases due to absence of lawyers on the ground of a strike call given by the bar. The Court observed that, while some courts had conducted cases even during strike or boycott periods, the majority had been impliedly sympathetic by not rising to the occasion in defence of the high traditions of law. The Court's clear position: a strike call is not sufficient cause for adjournment under Rule 1(1).

The Allahabad High Court in Associated Engineering Industries v. Inder Mohan Kohli, AIR 2000 All 162, applied the same principle in the context of a decision of a bar association to boycott a particular presiding officer's court. The decision was held insufficient justification for the counsel to abstain so long as he held the vakalat of a party. The decision in Chander Singh v. Chhotu Lal, AIR 1994 P&H 65, made the related point that adjournment should not be granted by the trial court merely to enable a party to file a revision petition in the High Court.

Costs as a condition of adjournment

Rule 1(2) requires the court, in every case of adjournment, to fix a day for further hearing and to make such orders as to costs occasioned by the adjournment, "or such higher costs as the court deems fit." Costs are the standard sanction. Where the adjournment is granted on the condition of payment of costs, the court can strike out the defence and proceed ex parte if costs are not paid — as held in East India Railway Co. v. Jit Mal, ILR 47 All 26 (1925). Where, however, the adjournment is ordered merely on payment of costs, without making it a condition, the consequence does not follow — the Gauhati Bank decision in Gauhati Bank Ltd v. Baliram Dutta, AIR 1950 Cal 326, draws this distinction clearly.

The Bombay amendment to Rule 1(2) ordinarily caps the costs at fifty rupees in ordinary suits and one hundred rupees in special suits; the Gujarat amendment puts the figures at thirty and forty-five rupees respectively. The figures, though dated, mark the order of magnitude the High Courts had in mind — costs are a discipline, not a punishment. The same managerial logic runs through the framing rules: a suit properly framed under Order II tends to need fewer adjournments because the issues are tighter and the witnesses fewer.

Rule 2 — failure to appear at the adjourned hearing

Rule 2 supplies the procedure where, on any day to which the hearing has been 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 by Order IX, or make such other order as it thinks fit. The Supreme Court in Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425, held that where the defendant does not appear at the adjourned hearing — irrespective of whether or not he appeared at the first hearing — Rule 2 applies, and the court is given the widest possible discretion to dispose of the suit by an Order IX route or make such other order as it thinks fit.

The Explanation to Rule 2, inserted in 1976, supplies an important qualification: 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 is adjourned, the court may, in its discretion, proceed with the case as if such party were present. The Explanation is in the nature of an exception to the general power under Rule 2 — it allows the court to escape an Order IX disposal where there is enough on the record to decide the case on merits. The Supreme Court in B. Janakiramaiah v. A. Parthasarathi, AIR 2003 SC 3527, emphasised the limit: the Explanation applies only where evidence or a substantial portion has been recorded; where after close of evidence the decree is passed merely because of the defendant's absence, without evaluation of evidence, the decree remains an ex parte decree and an application under Order IX Rule 13 to set it aside is maintainable.

The distinction between Order IX Rule 6 and Order XVII Rule 2

The line is doctrinally clean. Order IX Rule 6 governs the case where the defendant fails to appear at the first hearing — an ex parte decree may be passed. Order XVII Rule 2 governs the case where the defendant fails to appear at an adjourned hearing — the procedure laid down in Order IX applies, but only by reference. The distinction was established by the Bombay High Court in Tilak Singh v. Pradyumna Singh, AIR 1937 Lah 152, and the Calcutta High Court in Enatulla v. Jiban, ILR 41 Cal 990 (1914), and reaffirmed by the Supreme Court in Sangram Singh.

The procedural consequences track the distinction. If the plaintiff fails to appear at an adjourned hearing, the court may dismiss the suit under Rule 2 read with Order IX Rule 8; the plaintiff may apply under Order IX Rule 9 to set aside the dismissal — but no separate appeal lies, as held in Manaklal v. Phulabai, AIR 1939 Nag 91. If the defendant fails to appear, the court may pass an ex parte decree under Rule 2 read with Order IX Rule 6, and the defendant may apply under Order IX Rule 13 to set it aside. If both parties fail to appear, the court may dismiss under Order IX Rule 3, and the plaintiff may either bring a fresh suit or apply for restoration under Order IX Rule 4.

Rule 3 — failure to produce evidence on time granted

Rule 3, as recast in 1976, applies where a party to whom time has been granted fails to produce his evidence, to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit. The court, notwithstanding such default, may proceed in one of two ways: (a) if the parties are present, decide the suit forthwith; or (b) if the parties or any of them are absent, proceed under Rule 2.

The Privy Council and the High Courts had held, before the 1976 amendment, that "decide the suit forthwith" means not that the court must dismiss or decree the suit on default, but that the court may further adjourn or, without further adjournment, take such evidence as may be tendered and decide the suit on merits — the position established in Sukku v. Ram Lotan, ILR 41 All 433 (1919), and Narain v. Jagdeo, ILR 33 All 690. The Supreme Court in Union of India v. Mangilal Jain, AIR 1959 SC 1099, confirmed that the court has discretion either to proceed and dispose of the suit on merits or to adjourn it. The word "forthwith" qualifies "proceed", not "decide" — it means "without granting any further adjournment", as held in Dayal Wasanji v. Kedarnath Onkarlal & Co., AIR 1953 Bom 273.

The five conditions for Rule 3 to apply, distilled from Pearce v. Shama Churn, ILR 6 Cal 357 (1872), are: (i) the hearing must be adjourned on the application of a party, not on the court's own motion; (ii) on the application of the party who subsequently makes the default; (iii) the adjournment must be granted to enable the party to produce evidence, secure attendance of witnesses, or perform any other act necessary to the suit; (iv) the party must fail to perform within the time allowed; and (v) the rule does not apply to adjournments sought by all parties for compromise — established in Arjun Singh v. Mohendra Kumar, AIR 1964 SC 993. The compromise carve-out is significant because it preserves the discipline of withdrawal and adjustment of suits under Order XXIII, where adjournment for compromise sits in a separate procedural pocket.

Distinguishing Rule 2 from Rule 3 — the Mohandas test

The doctrinal line between Rule 2 and Rule 3 was unsettled before the 1976 amendment, with different High Courts taking different positions on the case of a "double fault" — non-appearance under Rule 2 plus default in producing evidence under Rule 3. The Supreme Court in Mohandas v. Ghisia Bai, AIR 2002 SC 1339, supplied the modern test. Rule 2 applies when the suit is adjourned and there is default of appearance; Rule 3 applies when the suit is adjourned on the application of a party and there is default in performing the act for which the adjournment was granted, but the party is present in court. The test is simple — if the party (or pleader) is not present, Rule 2 applies; if present but in default of evidence, Rule 3 applies.

The Court in Mohandas applied the test to the facts: neither the plaintiff nor his witnesses were present on the date fixed for evidence; the suit was therefore dismissed under Rule 2, not Rule 3. The Karnataka High Court in Gulab Devi v. Premvati, AIR 1996 Kar 144, took the same position: Rule 3 requires that all parties be present; if absent, the court must proceed under Rule 2. The procedural significance is substantial — a Rule 2 dismissal can be set aside on an Order IX Rule 9 application; a Rule 3 dismissal is on merits, with the remedy lying in first appeal under Section 96 rather than restoration.

Conscious presence and refused adjournments

A party is said to have failed to appear, even if he is physically present in court, if he applies for adjournment, the application is refused, and he does not thereafter participate in the proceeding — the position taken by several High Courts and reflected in the Allahabad jurisprudence on Order XVII Rule 2. The converse is also true: a conscious presence of a party, who does participate after his adjournment application is refused, amounts to appearance, even if he then walks out — the position taken by the Karnataka High Court in Rama Rao v. Shantibai, AIR 1977 Kant 121.

Where the advocate of the plaintiff withdraws on the ground that he is not prepared to proceed further, and the suit is dismissed, the dismissal is for default under Rule 2 — not on the merits — as held in Gulab Devi v. Premwati, AIR 1996 Raj 161. The plaintiff's remedy is restoration under Order IX Rule 9, with limitation governed by the Limitation Act Article 122 — thirty days from the date of dismissal.

Costs payable as a condition — the Black Diamond line

The Supreme Court in Black Diamond Glassware v. Kusumlata Gupta, AIR 2004 SC 5079, drew a clean distinction between two adverse consequences. Where the defendant fails to appear at an adjourned hearing and fails to pay costs imposed as a condition, the court may proceed ex parte; but striking out the defence outright is not proper. The defence can be struck out only where the costs were imposed as a condition precedent and the defendant had clear notice of the consequence. The distinction tracks the principle that procedural sanctions must be proportional to the default.

The Supreme Court in BP Moideen Sevamandir v. AM Kutty Hassan, AIR 2008 SC 2989, added a related point. Where a second appeal is referred to Lok Adalat for settlement and no settlement is reached, the High Court hearing the appeal on merits should not let any prejudice creep into its judicial mind on account of what it perceives as unreasonable conduct of a litigant before the Lok Adalat — the Lok Adalat conduct is irrelevant to the disposal of the appeal on merits.

Restoration after dismissal under Rule 2

Where a suit is dismissed under Order XVII Rule 2 read with Order IX Rule 8, the plaintiff's remedy is to apply for restoration under Order IX Rule 9. The application must be made within thirty days of the dismissal, with sufficient cause shown for non-appearance. The Allahabad High Court in Makhan Singh v. Eleventh Additional District Judge, Agra, AIR 2004 All 73, held that where a suit is adjourned for hearing on one of the issues — settled in line with the procedure on settlement of issues under Order XIV — and the plaintiff remains absent, the dismissal is under Rule 2 and not Rule 3, and an Order IX Rule 9 application is maintainable, particularly where no notice of final disposal was issued to the plaintiff.

The Supreme Court in Noor Mohammad v. Jethanand, (2013) 5 SCC 202, criticised the enormous delay caused by frequent adjournments, dismissal for non-prosecution, restoration after long intervals and renewed stay orders. The Court reiterated that the matter should have been dealt with strictly in accordance with the provisions of the Code — the discipline of Order XVII is not to be treated as elastic.

Distinguishing Order XVII from cognate provisions

Three procedural distinctions matter. First, between Order XVII Rule 2 and Order IX Rule 6: Rule 6 governs first-hearing default; Rule 2 governs adjourned-hearing default. The procedural routes overlap because Rule 2 incorporates Order IX modes by reference, but the entry-point distinction is doctrinally important. Second, between Order XVII Rule 2 and Rule 3: Rule 2 governs absence; Rule 3 governs failure to produce evidence when present. The Mohandas test draws the line. Third, between an order dismissing a suit under Order XVII Rule 2 (no appeal lies; restoration under Order IX Rule 9) and an order on merits under Rule 3 (first appeal lies under Section 96; restoration is not available). The remedy chosen must match the nature of the order.

A fourth distinction is procedural. The Order XVII discipline operates alongside the costs framework in Sections 35, 35A and 35B, examined in our chapter on costs in civil suits, and intersects with the trial management ethos that underpins disposal of the suit at the first hearing under Order XV. Section 35B in particular — the costs for adjournments occasioned by a party's failure to take a step — supplements the costs power under Rule 1(2). The two provisions read together give the court a graded sanction: standard costs under Rule 1(2), enhanced costs under Section 35B for unjustified delays.

MCQ angle — the recurring distinctions

Three propositions recur in prelims with high frequency. First, the cap on adjournments under the proviso to Rule 1(1) is three per party during the hearing of the suit, but the cap is relaxed where the circumstances are beyond the control of the party — the Salem Advocate Bar Association reading. Second, under Rule 1(2) proviso (c), the engagement of a pleader in another court is not by itself a ground for adjournment; the court may, however, give time under proviso (d) where the pleader is ill and the party could not have engaged another in time. Third, the Mohandas test for the Rule 2/Rule 3 distinction: if the party is absent, Rule 2 applies; if present but in default, Rule 3 applies.

Two further distinctions are worth carrying forward. The Explanation to Rule 2, inserted in 1976, allows the court to proceed as if an absent party were present, provided that party's evidence or a substantial portion has already been recorded — but only then. And the consequence of a Rule 2 disposal is governed by Order IX (no separate appeal; restoration available); the consequence of a Rule 3 disposal is on merits (first appeal under Section 96).

Practical takeaways for the trial-court practitioner

Three points for the practitioner. First, when seeking adjournment, lead with the precise sufficient cause and, where possible, anchor it in proviso (b) — circumstances beyond the party's control — rather than in the bare three-adjournment quota; the Salem Advocate gloss makes clear that circumstances-beyond-control adjournments are not capped. Second, when the opposite party fails to appear, identify carefully whether Rule 2 or Rule 3 applies — the Mohandas test on presence is the gateway. The wrong characterisation produces the wrong remedy: an Order IX Rule 9 application against a Rule 3 dismissal is not maintainable, and a first appeal against a Rule 2 dismissal is not the prescribed remedy. Third, when costs are imposed as a condition of adjournment, treat them as a condition precedent — the defence may be struck out only where the costs were so imposed and clear notice given, as Black Diamond establishes.

Order XVII is the discipline that holds the trial together. The next chapter, on the examination of witnesses at the hearing stage under Order XVIII, takes up what happens on the day the trial actually proceeds — chief examination on affidavit, cross-examination in open court, and the procedural mechanics of recording evidence. The affidavit regime under Order XIX supplies the form in which much of that evidence is now received.

Frequently asked questions

Is the three-adjournment cap under Order XVII Rule 1 absolute?

No. The Supreme Court in Salem Advocate Bar Association v. UOI, AIR 2005 SC 3353, read the proviso to Rule 1(1) together with proviso clause (b) to Rule 1(2), and held that where the circumstances are beyond the party's control, there is no restriction on the number of adjournments that may be granted. The cap applies to routine requests, not to genuine emergency. The court must, however, record reasons in writing for every adjournment, whether within the cap or beyond, as required by the 2002 amendment.

Is the engagement of a pleader in another court a ground for adjournment?

No. Proviso (c) to Rule 1(2), inserted by the 1976 Amendment, expressly excludes this ground. The Calcutta High Court in Pijush Kanti v. Kinnori Mullick, AIR 1984 Cal 284, applied the same logic to the absence or engagement of senior counsel where the other side's lawyer is present and ready to proceed. A bar boycott or strike call is similarly not sufficient cause, as held in Raman Services Pvt Ltd v. Subhash Kapoor, AIR 2001 SC 207, and Associated Engineering Industries v. Inder Mohan Kohli, AIR 2000 All 162.

What is the difference between Order IX Rule 6 and Order XVII Rule 2?

Order IX Rule 6 governs the case where the defendant fails to appear at the first hearing of the suit — an ex parte decree may be passed. Order XVII Rule 2 governs the case where the defendant fails to appear at an adjourned hearing — the court may dispose of the suit in one of the modes directed by Order IX, including ex parte decree under Order IX Rule 6, but the entry point is Rule 2. The Supreme Court in Sangram Singh v. Election Tribunal, AIR 1955 SC 425, held that Rule 2 confers the widest possible discretion to dispose of the suit by an Order IX route or make such other order as it thinks fit.

How does the Supreme Court distinguish Rule 2 from Rule 3 of Order XVII?

The Supreme Court in Mohandas v. Ghisia Bai, AIR 2002 SC 1339, supplied the modern test. Rule 2 applies when the party (or pleader) is not present — the suit is disposed of by an Order IX route. Rule 3 applies when the party is present but has failed to produce evidence, secure attendance of witnesses, or perform any other act for which time was granted — the court may decide the suit forthwith. Where neither the party nor witnesses are present on the date fixed for evidence, the case must be dismissed under Rule 2, not Rule 3, even if time had been granted to lead evidence.

When does the Explanation to Order XVII Rule 2 apply?

The Explanation, inserted in 1976, applies only where the evidence or a substantial portion of the evidence of an absent party has already been recorded. In such a case, the court may, in its discretion, proceed with the case as if such party were present — and decide on merits instead of by an Order IX route. The Supreme Court in B. Janakiramaiah v. A. Parthasarathi, AIR 2003 SC 3527, emphasised the limit: where the decree is passed merely because of the defendant's absence, without evaluation of evidence, the decree remains ex parte and an Order IX Rule 13 application is maintainable.

What is the consequence of failing to pay costs imposed as a condition of adjournment?

Where costs are imposed as a condition precedent to the adjournment, failure to pay results in striking out of the defence and the court may proceed ex parte — established in East India Railway Co. v. Jit Mal, ILR 47 All 26 (1925), and confirmed in Black Diamond Glassware v. Kusumlata Gupta, AIR 2004 SC 5079. Where, however, costs are merely ordered without being made a condition, the defence cannot be struck out for non-payment; the most that follows is an ex parte proceeding. The distinction tracks the principle that procedural sanctions must be proportional to the default and clearly notified in advance.