Chotu vs Khem Chand (Died) Represented By His Legal Representatives

J.V. Gupta, J.—This petition is directed against the order of the Additional District Judge, Gurgaon, dated 12th January, 1979, whereby the order of the trial court dismissing the application u. o. 9 R. 13 as not maintainable was affirmed. The relevant facts which are not in dispute are as under.

The Plaintiff Khem Chand filed a suit for possession on 6th October, 1971. After the Plaintiff closed his evidence on 3rd September, 1975, the case was fixed for Defendant''s evidence for 17th October, 1975. On that date, the witnesses of the Defendant were not present and the case was adjourned to 4th December, 1976, subject to payment of costs of Rs. 15/-. On 4th December, 1975, the following order was passed by the Court:

Present: Sh. Gobind Lal, Advocate for the Plaintiff.

Counsel for the Defendant is present No DW present. It has been stated by the counsel for the Defendant that the D Ws have not been produced today because the Plaintiff had told him that he will be out of station today. Under these circumstances. I grant no more, but last, opportunity as already directed on the last date of hearing. For evidence of the Defendants, to come up on 16th December, 1975. It is made clear to the Defendant that his case shall be deemed closed on the next date after recording the evidence present on that day.

On 16th December, 1975, the case was called at 10.50 AM when counsel for the Plaintiff was present but the counsel for the Defendant and the Defendant were not present. It was ordered that the case be called again at 11.00 AM. Again the position was the same as at 11.00 AM and it was ordered that the case be again called at 12 noon. At that time, the counsel for both the parties were present and the following order was passed:

Counsel for the Defendant has stated that no DW is present today nor was any DW summoned for today. He has pressed for another adjournment, which is opposed by the opposite party. The Defendant does not deserve any more opportunity for adducing his evidence. The records of the file reveal that on 3.9.75, the case was adjourned for Defendant''s evidence for 17.10.75. On 17-10 75, at the request of Defendant, another opportunity was granted and there was a clear direction that on the next date of hearing, the case of the Defendant shall be deemed closed after recording the evidence present on that date. The case from 17-10-74 was adjourned to to 4-12-1975 on payment of conditional cost of Rs. 15/. On 4-12-1975, no DW was present. The Defendant sought another opportunity and the case was adjourned to 16-12-75. It was again made clear to the Defendant that his case shall be deemed closed on the next date. Today, again the Defendant has not brought any witness nor was any witness summoned by the Defendant for today. Even the Defendant has not appeared to make a statement in support of his own case. The Defendant, it appears, is interested in prolonging the case. Under these circumstances, the Defendant cannot be allowed any more opportunity. Conditional cost of Rs. 15/- has also not been paid. The evidence of the Defendant was closed under order 17 Rule 3 CPC. Counsel for the Defendant stated that he will be prepared to argue the case after lunch. Accordingly, to come up at 2.30 p. m. for arguments.

The case was again called at 2.30 p. m. and the following order was passed:

It is 2.30 p. m. Now case has again been called up. Present counsel for the Plaintiff. Counsel for the Defendant Sh Mohan Lal Gupta, at this stage has made a statement duly signed by him to the effect that he cannot argue on merits of this case as he has no instructions to prosecute the suit further. Arguments of Id. counsel for the Plaintiff heard. Records gone through. Judgment announced. Vide judgment even dates, suit decreed with costs. Decree be drawn and the file be consigned to the record room.

The Defendant filed an application u o. 9 R. 13, CPC dated 24th December, 1976 for setting aside the ex parte decree dated 16th December, 1975. This application was contested on behalf of the Plaintiff, inter alia, on the ground that no such application was maintainable as the decree could not be said to be ex parte as the evidence was closed u. o. 17 R. 3 CPC, and the suit was decreed on merits. This objection prevailed with the trial court which came to the conclusion that since the impugned judgment and decree dated 16th December, 1975, were passed u. o. 17 R. 3 CPC on merits, the remedy with the Defendant lay in filing appeal against the said judgment and decree, and the present application u. Order 9 R. 13 CPC, was not maintainable. Consequently, the application was dismissed vide order dated 7th March, 1977. In appeal, the learned Additional District Judge affirmed the said findings of the trial court, and, thus, maintained the order rejecting the application ride order dated 12th January, 1979. Aggrieved with the same, the Defendant has filed this petition in this Court.

At the time of motion hearing, the prayer for staying the execution of the decree was declined. It has been stated at the Bar on behalf of the Plaintiff-Respondent that in execution of the decree, the possession has been taken by him during the pendency of this petition.

Learned Counsel for the Petitioner contended that since the counsel for the Defendant pleaded no instructions and the Defendant himself was never present, the order passed on 16th December, 1975, would be deemed to have been passed u. Order 17 R. 2, and not u. Order 17 R. 3, CPC, and that being so, the application u. Order 9 R. 13. CPC was maintainable. In support of this contention, he referred to M. Agaiah Vs. Mohd. Abdul Kereem, . Rama Rao and Others Vs. Shantibai and Others, and Thummala Suryamma Vs. The Andhra Pradesh State Electricity Board and Others, It was further contended that if the default is covered by both the Rules, i. e. R. 2 and R. 3 of Order 17, it shall be R. 2 which governs the case. In support of this contention he referred to P. Govinda Menon and Another Vs. Visalakshi Amma and Others, Rashid Shapurji Chenai and Others Vs. The Collector Land Acquisition, . and M.S. Khalsa Vs. Chiranji Lal and Others,

The main question to be determined in this petition is as to whether the order passed on 16th December, 1975, was passed u. o. 17 R. 3 CPC, or will it be deemed to have been passed u. Order 17 R. 2, CPC. Both the courts below have found that the trial court proceeded u. Order 17 R. 3 and decided the case on merits on the basis of the evidence on record. In Rama Rao''s case (supra) both the provisions of Order 17 R. 2 & 3, were considered, and what constitutes appearance of a party at the hearing was debated. It was held therein that "there can be no doubt that the mere conscious presence of the party himself in the Court for participation when the case is called out, whether the party thereafter actively participates at the hearing or not, does amount to appearance of that party at that hearing. In the case of personal presence of the party, it constitutes appearance even when he abstains from appearing after refusal of an adjournment. Thus, in the case of the presence of the party which constitutes appearance, even his further withdrawal has no effect and R. 3 is attracted. The difficulty sometimes arises when the party is himself absent, and" the appearance is through his counsel. In such a situation, the question has to be answered, with reference to the extent of the authority of the counsel and his conduct at the commencement of the hearing when the case is called. The real test is whether the counsel has done any act at that hearing of the suit or was his presence merely to inform the Court that he was not duly instructed to appear at the hearing on account of which there is no appearance of the party through him on that date. In such a situation, it will be a question of fact in each case to be answered with reference to the extent of the authority of the counsel and the indication of the same given by him to the Court at or before commencement of the hearing when the case is called. It is equally clear that once the counsel has commenced participating at the hearing without indicating that he was not duly instructed to represent the party at that hearing, except to seek an adjournment, his subsequent withdrawal when the hearing has commenced will not amount to non-appearance of party through him." Applying the said ratio to the facts of the present case, it is quite evident that the counsel for the Defendant when appeared earlier at 12 noon on l6th December, 1976, never pleaded no instructions; he rather pressed for another adjournment which the Court did not grant, and the evidence was closed u. 0.17 R. 3. CPC. At that stage, counsel for the Defendant stated that he will be prepared to argue the case after lunch, and accordingly the case was taken up at 2. 30 p. m. on that day for arguments. It was at that stage when he made a statement that he cannot argue on merits as he had no instructions to prosecute the suit further. Thus, from the orders passed by the trial Court on the file it is quite evident that the evidence was closed u. Order 17 R. 3, C. P. C Moreover it will be a question of fact to be determined in each case as to whether the order was passed u. Order 17 R. 2 or R. 3. As regards the facts of the present case it has been concurrently found by both the courts below that the order was passed u. Order 17 R. 2, C. P. C. That being so, I do not find any illegality or infirmity therein as to be interfered with in this petition.

Thus, on the facts and circumstances of the case, it has been rightly held by the Courts below that the application u. Order 9 R. 13, CPC, as such, was not maintainable because the decree passed on 16th December, 1975, could not be held to be an expert decree. The only remedy open to the Petitioner was to file an appeal against the the said decree, and thus, get the order passed u. Order 17 R. 3 set aside. Apart from that, even in the application u. O 9 R. 13, C P C, he has not prayed for setting aside the order closing his evidence u. Order 17 R. 3, and has only prayed for setting aside the expert decree passed on merits. The objection as to the maintainability of this application was taken by the Plaintiff at the very first instance but even at that stage the Defendant did not avail himself of the proper remedy. In this view of the matter the petition fails and is dismissed with no order as to costs.