Bhagyam and Others vs Luis

K.G. Balakrishnan, J.—Defendants in O.S. 182 of 1986 on the file of 1st Additional Sub Court, Eroakulam are the Appellants herein. They filed I.A. 5670/88 in O.S. 182 of 1986 under Order 9, Rule 13 CPC for setting aside the ex parte decree passed against them. That application was dismissed and hence this appeal.

The suit was posted in the special list for trial on 7th November 1988. On that day the presiding officer was on leave and it was adjourned to 10th November, 1988. On that day these Appellants were not present and their counsel made an application for adjournment. That application was dismissed and the court examined the Plaintiff and marked Exts. A-1 to A-7 documents on the Plaintiff''s side and decreed the suit as prayed for. Thereafter these Appellants filed application under Order 9, Rule 13 for setting aside the ex parte decree.

The court below dismissed that application on the ground that the suit was disposed of on merits and therefore the application under Order 9, Rule 13 was not maintainable. It was also held by the court below that these Appellants were not set ex parte.

We heard counsel on either side. It is submitted by the Appellants'' counsel that the court below passed an ex parte decree and, therefore, a petition under Order 9, Rule 13 was maintainable. It seems that the court must have assumed that the disposal of the suit was under Rule 3 of Order 17 or under Explanation of Rule 2 of Order 17. In this case, admittedly, these Appellants were not present on 10th November 1988, the date on which the suit was disposed of by the court below. Had the court proceeded and disposed the suit under Rule 3(a) of Order 17, a petition under Order 9, Rule 13 was not maintainable. But Rule 3(a) is applicable only when a party to the suit to whom time has been granted failed to produce his evidence, or to cause the attendance of his witness, or to perform any other act necessary to the further progress of the suit, for which time has been allowed. It is also necessary that if the court proceeded under Rule 3(a) the party also must be present. Admittedly, Appellants were not present and they were not previously granted time and that they failed to produce their evidence or to cause attendance of their witness, the disposal of the case was not under Rule 3(a) of Order 17. See the decisions reported in Shanmugham v. Federal Bank 1987 KLT (S N) 23 and M.V. George v. S.M.S. Traders 1980 KLT 307

Rule 2 of Order 17 is applicable were, 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 of the Code. But in a case 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. Explanation to Rule 2 of Order 17 is applicable in a partly tried suit. If a Plaintiff or a Defendant after having adduced some evidence and later failed to appear and give further evidence in the matter the court can proceed with such cases as if that party were present.

In the instant case the disposal of the suit was not under Explanation to Rule 2 of Order 17 as the Appellants had not adduced any evidence or that the suit was adjourned at their instance.

As the disposal of the case was not either under Explanation to Rule 2 of Order 17 or under Rule 3(a) of Order 17 it cannot be assumed that the judgment was on merit and that Order 9 of Rule 13 is not applicable. The learned Sub Judge passed an ex parte order in the absence of these Appellants. The application filed by the Appellants ought to have been considered on merits under Order 9, Rule 13 CPC and as it was not considered the impugned order is liable to be set aside.

We set aside the impugned order and remit the matter to the court below for considering the application on merits under Order 9, Rule 13 of the Code. The parties shall appear before the court below on 25th August, 1995.