Adhikari Dayanidhi Das vs Krupanidhi Nanda

P.K. Mohanti, J.—This appeal is against an order dismissing the Defendant''s application under Order 9, Rule 13, CPC Code.

The Plaintiff Respondent filed Title Suit No. 72 of 1967 for specific performance of a contract of sale in respect of a homestead land situated at Kundheibenta Sahi in Puri town. The suit was formally opened on 22-12-1971 and was adjourned to 3-1-1972 for further hearing. On that date the Court being engaged in a sessions trial the suit was posted to 8-1-1972 for further hearing. On 8-1-1972 the Defendant filed an application supported by medical certificate for one month''s time on the ground of his illness. As the Presiding Officer was on casual leave, the Munsif in charge adjourned the suit to 10-1-1972 for further hearing without passing any order on the Defendant''s application. The Defendant''s application dated 8-1-1972 was put up on 10-1-1972. The learned Subordinate Judge rejected the same and proceeded to dispose of the suit under Order 17, Rule 3, CPC Code.

On 19-1-1972 the Defendant made an application under Order 9, Rule 13, CPC for setting aside the ex parte decree on the ground that owing to his illness he could not attend Court on 10-1-1972. The application was opposed by the Plaintiff.

The learned Subordinate Judge held that the application under Order 9, Rule 13, CPC was not maintainable inasmuch as the disposal of the suit was under Order 17, Rule 3, CPC Code. He also held that the Defendant had failed to prove that he was prevented by sufficient cause from appearing in Court on 10-1-1972. Accordingly, he dismissed the petition under Order 9, Rule 13, CPC Code. Aggrieved by this decision, the Defendant has preferred this appeal.

Having heard the learned Counsel for the parties and having gone through the evidence on record, I do not feel that the finding that the Defendant had not made out sufficient cause for his absence on the date of hearing is correct. The Defendant examined himself and the doctor in support of his contentions. The doctor''s evidence is supported by the medical certificate which he had granted on 8-1-1972. The certificate (Ext. 1) was definite that the Defendant was suffering from high blood pressure and was advised to take rest and undergo treatment for two weeks. The learned Subordinate Judge disbelieved the evidence of the Defendant and the doctor on account of some minor discrepancy in their statements. The doctor stated that he had examined the Defendant only once whereas the Defendant stated that the doctor had examined him three to four times. From this it would be an unreasonable inference that the witnesses not speaking the truth. When the witnesses were giving evidence more than a year later about what happened a year earlier, their memory may not serve them completely right. I see no reason to disbelieve the witnesses particularly when no evidence has been produced by the Plaintiff in rebuttal.

The learned Subordinate Judge went wrong in taking into consideration the previous negligence on the part of the Defendant. It is well settled that if sufficient cause is made out for non-appearance of a party on the date on which the suit is called on for hearing, he cannot be penalised for his previous negligence which has been condoned or overlooked. vide Mayurbhani Oil and Oil Products Ltd. v. Munilal Ramdayal ILR 1960 Cuttack 591 and Nanak Chand Khandelwalla and Others Vs. Fakir Chand Khendelwalla and Another, . On the facts proved, I find that the Defendant was prevented by illness from appearing in the suit on 10-1-1972 when the suit was called on for hearing.

The next question arising for determination in this appeal is whether the disposal of the suit on 10-1-1972 was under Order 17, Rule 3 or Order 17, Rule 2, CPC Code. Order 17, Rule 2 provides:

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 on one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit.

Order 17, Rule 3 enjoins:

Where any party to a suit to whom time has been granted fails to produce his evidence, or perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forth with.

The distinction between Order 17, Rule 2 and 3 is that Rule 2 applies when the party is absent and Rule 3 applies when the party is present. Rule 3 comes into operation when three conditions are satisfied, vivo (i) the adjournment must have been at the instance of the party, (ii) the party concerned should have appeared in Court, and (iii) there must have been default of the kind mentioned in the rule. In the instant case, the Defendant and his pleader were absent on 10-1-1972 when the suit was called on for hearing. It was-not at the instance of the Defendant that the suit was adjourned to 10-1-1972. The Defendant''s application dated 8-1-1972 for one month''s time was put up on 10-1-1972 and was rejected. He had not been allowed time till 10-1-1972 to produce his evidence or to do any other act necessary to the further progress of the suit. The Court had suo motu adjourned the hearing to 10-1-1972. On the aforesaid facts, the suit must be treated to have been disposed of under Order 19, Rule 2, CPC and that being so an application under Order 9, Rule 13, CPC for setting aside the ex parte decree was maintainable.

In the result, the appeal is allowed and the ex parte decree passed in the suit is set aside. The learned Subordinate Judge shall proceed with the trial of the suit from the stage when the ex parte proceedings were taken against the Defendant. The Defendant shall pay to the Plaintiff Rs. 75/ - (seventy-five) as costs before he is allowed to contest the suit.