B. Champalal Jain vs Chewarchand Ashok Kumar and Co.

Shanmukham, J.—The defendant in O.S. 201 of 1979 on the file of the first Additional Subordinate Judge, Pondicherry is the petitioner in

this revision. His application I.A.2201 of 1983 purported to have been filed under Order 9, Rule 12, C.P.C., was dismissed by the learned

Subordinate Judge, Pondicherry on the ground that the remedy of the petitioner is to prefer an appeal. It is this order that is sought to be revised in

this revision.

It is seen from the records that the plaintiff has closed his evidence. Thereafter, the defendant examined himself as D.W. 1, on 18th December,

1982 and on 8th December, 1982, the chief examination was continued on 15th December, 1982 and on 21st February, 1983 he was cross-

examined. His cross-examination was not over. The matter was adjourned to 25th February, 1983. Even on that day the cross-examination could

not be concluded. Therefore, the matter was adjourned to 26th April, 1983, for continuation of the cross-examination. On that day also the cross-

examination was not completed. On 26th April, 1983 the matter stood adjourned for further cross-examination on 15th June, 1983. On 15th June,

1983, the defendant was absent. An application was filed on defendant''s behalf for adjournment which was dismissed. The learned Subordinate

Judge passed an order saying that the defendant''s evidence was closed and consequently the matter was adjourned for arguments to 25th July,

1983. As both the sides prayed for time, the matter was adjourned to 30th June, 1983. On 30th June, 1983 arguments were heard in part and for

further continuation it was adjourned to 4th July, 1983 and the records reveal that arguments were heard on 4th July, 1983 and the matter was

adjourned for judgment on 13th July, 1983. Thus, it is clear from the records that the defendant did participate substantially in the trial.

Beside, a reference to Order 17, Rule 3read with Explanation to Rule 2, of Order 17, C.P.C., will clearly indicate that even though the

defendant is absent if a substantial portion of his evidence has already been recorded, the Court, in its discretion, may proceed with the case as if

such party were present. In other words, he will be deemed to have been present in Court notwithstanding his actual absence. In this case as

already referred to by me, the defendant not only has examined himself, but also submitted to cross-examination. But on account of his absence,

cross-examination could not be continued. Therefore, the Court closed the evidence and posted the matter for arguments. The records disclose

that the Learned Counsel for the defendant also had addressed arguments.

Both on 15h June, 1983, 30th June, 1983 and 4th July, 1983 no doubt the defendant was absent. Assuming that the Learned Counsel for the

defendant did not address arguments as now alleged by the Learned Counsel for the petitioner, yet by virtue of Explanation to Rule 2 of Order 17,

C.P.C., it is manifest that the defendant shall be deemed to have been present and that the Court had the competence to proceed with the case on

merits. Here it is worthwhile to refer to Order 17, Rules 2 and 3, C.P.C.

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.

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.

Thus it is obvious that the Court below when it closed the evidence on 15.6.1983, and proceeded with the matter subsequently on 10.6.1983

and on 4th July, 1983, did proceed with the case under Order 17, Rule 3(a), C.P.C. According to this provision, the Court is empowered to

proceed with the trial notwithstanding either party fails to produce evidence and if the parties were present. No doubt, in this case, the defendant

was not present on those three days aforesaid. But by virtue of the Explanation attached to Rule 2 of Orders 17, C.P.C. if substantial portion of

the evidence of any party had already been received 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. In this case, the Court below has proceeded to dispose of the

case under Orders 17, Rule 3(a), C.P.C, read together with the Explanation to Rule 2 of Order 17 C.P.C. If so, it is not an ex parte disposal, but

a judgment rendered on merits. The application under Order 9, Rule 13, C.P.C. was rightly dismissed by the Court below. Thus, I find that the

order passed by the Court below is unassailable and does not call for any interference. The revision is therefore, dismissed with costs.