Balarkrishna Pillai vs Balakrishnan Nair and Others

U.L. Bhat, J.—Appellant herein filed the suit against the Respondents. The suit was dismissed on 7th April 1982. Appellant filed I.A. 465 of 1982 to restore the suit under Order IX Rule 9 CPC The Court below dismissed the application holding that the dismissal of the suit was not under Order IX Rule 8 CPC and hence it could not be restored under Order IX, Rule 9 Code of Civil Procedure. This judgment is now challenged.

It appears the suit O.S. 77/80 concerned in this case and another suit, O.S. 17/82, were tried jointly and purportedly disposed of on merits. The decree and judgment in O.S. 17/82 have been confirmed in A.S. No. 65/82 of the District Court, Thodupuzha.

Evidence was being recorded in O.S. 77/80. The case was posted for trial to 1st April 1982. On that day Plaintiff was not ready. Adjournment application filed on behalf of the Plaintiff was dismissed. Plaintiff did not adduce evidence on that day. Evidence on behalf of the Defendants was adduced on that day and succeeding days. Arguments were heard on 5th April 1982 and suit dismissed on 7th April 1982. There is no doubt that the dismissal purports to be on merits. Learned Counsel for the Appellant would contend that even though the dismissal purported to be on merits, in law it has to be treated as dismissal under Order XVII, Rule 2 and can be set aside under Order IX, Rule 9 Code of Civil Procedure. Learned Counsel would further contend that the dismissal was not under Order XVII, Rule 3 Code of Civil Procedure.

The provisions of Rules 2 and 3 of Order XVII CPC have undergone change by virtue of the CPC (Amendment) Act, 1976. The rules in the present form read as follows:

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 to make such other order as it thinks fit.

Explanatim. - 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.

A Division Bench of this Court had occasion to interpret this rule in M.V. George v. S.M.S. Traders 1980 KLT 307. The Court observed:

Order 17, Rule 2 and Order 17, Rule 3 of the CPC as they stand after the CPC Amendment Act, 104 of 1976 are materially different from the corresponding provisions as they stood prior to the amendment. Order 17, Rule 3 contemplated a judgment on the merits. But a judgment does not become a judgment on the merits falling under Order 17, Rule 3 merely because the judgment purports to be on the merits. The Court may have, in the judgment discussed the issues in the case, considered the evidence and decided the case on the merits. But nevertheless it will not be a disposal under Order 17, Rule 3 if the pre-requisite for application of the rule is not satisfied. The party to whom time has been granted must be in default. If the case comes up not after grant of such time to the party, Order 17, Rule 3 will have no application. The disposal will then be under Order 17, Rule 2 though it purports to be one on the merits. In such a case a Defendant notwithstanding the purported disposal on the merits could seek to reopen the decree by an application under Order 9, Rule 13 of the Code of Civil Procedure.

The Court noticed the explanation added to Order 17, Rule 2 as well as the changes in Rule 3 and observed:

Prior to the amendment the Court, notwithstanding the default of party, was entitled to proceed with the suit. But after the amendment it could decide to proceed with the suit under the rule only if the parties are present. If the parties are or any of them is absent the Court would proceed only under Rule 2.

The above said amendment makes the earlier decisions on the distinction between Order 17, Rule 3 and Order 17, Rule 2 inapplicable after the amendment. The power of the Court to proceed to decide the suit under Order 17, Rule 3 is restricted now to cases where the parties are present. If the parties are or any of them is absent the Court would proceed only under Rule 2.

There is another important change in the provisions which have been noticed. It is not in all cases coming under Rule 2 of Order 17 that the Court could proceed to dispose of the suit, in the mode prescribed under Order 9 of the Code of Civil Procedure. If the explanation is attracted the Court would proceed to dispose of the suit as if the parties were present. The explanation would be attracted to a case where the evidence or substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which hearing of the suit is adjourned. The Court has then a discretion to proceed with the case as if the party was present. It may in its discretion decide to proceed ex parte. In a case where invoking the explanation, the Court Droceeds to deal with the case on the merits on finding that the conditions to attract the explanation are present, the disposal is not under Order 9. In such a case there is no question of reopening the decree by resort to Order 9 of Code of Civil Procedure. In other words though the right to proceed to decide on the merits in case of default of appearance of party has been taken out of Order 17, Rule 3 it has been conferred in restricted cases by the explanation to Order 17, Rule 2. Where the Court has chosen to proceed to decide on the merits under the explanation Order 9 cannot be invoked.

The Supreme Court had occasion to consider the above provisions in Prakash Chander Manchanda and Another Vs. Janki Manchanda, . The Court observed:

It is clear that in cases where a party is absent the only course as mentioned in Order 17, Rule 3(b) is to proceed under Rule 2. It is therefore clear that in the absence of the Defendant, the Court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as it now stands also clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9. The explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent, and for that party no evidence has been examined up to that date the Court has no option but to proceed to dispose of the matter in accordance with Order 17, Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure.

Order 9 CPC deals with appearance of parties and consequence of non-appearance. Rule 1 requires the parties to appear on the day fixed in summons for Defendant to appear and answer. The suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court. According to Rule 3, where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. Where the suit is so dismissed, Rule 4 provides that the Plaintiff may, subject to the law of limitation, bring a fresh suit, or he may apply for an order to set the dismissal aside and in appropriate cases, the Court shall make an order setting aside the dismissal. Rule 8 deals with procedure where Defendant only appears. When 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 dismiss the suit so far as it relates to the remainder. Where a suit is wholly or partly dismissed under Rule 8, Rule 9 precludes the Plaintiff 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 in appropriate cases the Court is empowered to set aside the dismissal. These are the provisions relating to appearance and non-appearance of parties of first hearing.

The provisions of Order 17 deal with subsequent stages of the litigation. Rule 1 of Order 17 enables the Court for sufficient cause at any stage of the suit to adjourn the hearing of the suit. Where the Court declines to grant adjournment of hearing of the suit the Court has to proceed under Rule 2 or Rule 3. These two rules deal with different situations. Rule 2 deals with case of failure of parties to appear on any day for which hearing of the suit is adjourned, i.e., evidently adjourned under Rule 1. The Court may proceed to dispose of the suit in any one of the modes prescribed in that behalf or make such other order as it thinks fit. In other words where Rule 2 applies the Court is enabled to dispose of the suit either under Rule 6 or Rule 8 of Order 9. Where the suit is so disposed of the party whose failure to appear led to the disposal has remedies in accordance with the corresponding provisions of Order 9, viz., Rules 9 or 13. As indicated above where Rule 2 applies ordinarily dismissal must be under Order 9. The explanation inserted by the Amending Act of 1976 vests a discretion in the Court to dispose of the suit on merits only in one contingency, viz., that the evidence or substantial portion of the evidence has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned. In such a case the Court in its discretion may proceed with the case as if such parties are present.

Rule 3 applies to a case where any party to a suit to whom time has been granted fails (a) to produce his evidence, or (b) to cause the attendance of the witnesses or (c) to perform any other act necessary to the further progress of the suit, for which time has been allowed. In such contingencies, the Court may notwithstanding the default proceed in one of the two ways, that is, (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. Even where conditions requisite under Rule 3 are satisfied the Court can proceed to decide the suit only when the parties are present. If the parties are or any one of them is absent the Court cannot dispose of the suit on merits. It can proceed only under Rule 2. Under the main part of Rule 2, disposal is to be under Order 9. Where the conditions contemplated in the explanation under Rule 2 exist the Court has discretion to decide the suit on merits. Where the disposal purports to be on merits, if the conditions requisite for disposal on merits are absent, disposal in the eyes of law is only under Order 9 Code of Civil Procedure. In such a case, remedies under Order 9 CPC would be available to parties.

In the present case Order 17, Rule 3 CPC is not attracted. This is not a case where the Plaintiff failed to produce his evidence though time was granted to him or failed to cause attendance of witnesses though time was granted to him or failed to perform any other act necessary to the further progress of the suit for which time was granted. Posting of the suit for trial on 1st April 1982 was not in response to a request or application made by the Plaintiff. It was a posting given by the Court of its own accord. Therefore Rule 3 cannot apply. Rule 2 will apply because the suit came up for trial on 1st April 1982 on adjournment of the hearing as contemplated under Rule 2. If that be so disposal can only be under Order 9, subject of course to the operation of explanation. The explanation is not attracted in the instant case because evidence or substantial portion of the evidence of the Plaintiff had not been recorded and the failure of the Plaintiff to appear was not preceded by recording of such evidence. We are therefore of the opinion that disposal in the instant case was a disposal under Order 9 Code of Civil Procedure. Plaintiff is therefore entitled to seek restoration of the suit, subject to the existence of good ground, under the provisions of Order 9 Code of Civil Procedure.

According to the Plaintiff he could not be present in Court for the trial of the suit because he was ill and laid up in Mount Sinai Hospital for treatment. Plaintiff examined as P.W. 1 spoke to his case. He relied on Ext. A-1 medical certificate issued and proved by P.W. 2. The evidence of P.Ws. 1 and 2 in the light of Ext. A-1 clearly establishes his case of inability to attend Court for trial on account of illness. We are therefore satisfied that Plaintiff has established sufficient cause for his non-appearance at the time of trial. The Court below erred in rejecting the petition. The petition ought to have been allowed.

In the result, we set aside the order of the Court below and allow I.A. 465 of 1982. The Court below will restore O.S. 77/82 to the file and proceed to dispose of the same in accordance with law.

Appeal is thus allowed, but without costs.