Gauri Shanker Konodia vs Durga Prasanna Majumdar and Others

S.B. Sinha, J.—This application raises um interesting question of Jaw with regard to the interpretation of Order 17 Rules 2 and 3 and 1 Order 9 Rule 13 of the Code of Civil Procedure.

The fact of the matter lies in a very narrow compass.

The Opp-party filed a suit against the Petitioner praying therein for a decree for all sum of Rs. 3300/-. In the said suit the Petitioner appeared and filed a written statement on 7.8.1987 one witness was examined on behalf of the opp-party and he was cross-examined on behalf of the Petitioner. On the (sic) date fixed, no-body appeared on behalf of the Defendant-Petitioner. On that date, (26.8.88) another witness namely D.P. Mukherjee was examined and the case was closed.

The learned Munsif adjourned the case fixing 2.9.88 for ex parte argument and upon (sic) the counsel for the Plaintiff passed a judgment on 14 9.1983. 5. The Petitioner thereafter filed an application for setting aside the exparte decree purled to be under Order 9 Rule 2 of the Code Civil Procedure on 14.9.1988. By an order dated 3.4.1989 passed in Misc. Case No. 11 of 1988, the learned trial court dismissed the said application holding inter alia therein that the application was not maintainable.

The Petitioner preferred an appeal aga-(sic) the said order before the Judicial Commissioner Ranchi which was registered as Misc. Appeal No. 12 of 1989. The IIIrd Additional judicial Commissioner, Ranchi to whose court aforementioned appeal was transferred for disposal, dismissed the said appeal. The Petitioner has questioned the legality of the aforementioned two judgments in this civil revision application.

Mr. S.N. Rajgarhia, learned Counsel appearing on behalf of the Petitioner submitted that the learned courts below misdirected themselves in holding that the application under Order 9 Rule 2 of the CPC was not maintainable inasmuch as in terms of Order 17 Rules 2 and 3, the trial court in the facts and circumstances of the case could have disposed of the suit only in one of the modes as provided under Order 9 of the Code of Civil Procedure.

The learned Counsel in this connection has relied upon a decision of this Court in Ramsarup Prasad v. Central Bank reported in 11981 PLJR 419 and in Prakash Chander Manchanda and Another Vs. Janki Manchanda,

Mr. P. Ghosh, learned Counsel appearing on behalf of the Plaintiff opp-party, on p other hand, submitted that in this case Clause ''a'' of Rule 3 of Order 17 of the CPC is attracted and not Clause ''b'' thereof inasmuch as from the records, it would appear that on 26.8.88 the counsel for the Defendant-Petitioner refused to proceed with the hearing of the suit in absence of the Defendant. According to the learned Counsel the presence of the advocate of a party must be deemed to be the presence of the party him self and in view of the fact that the Defendant Petitioner cross-examined one of the witnesses examined on behalf of the Plaintiff opp-party, the court had no other option but to proceed to decide the suit as if the parties were present.

learned Counsel in this connection has placed string reliance in Union of India v. V.A. Venkataian reported in 1975 Mad 123 and in Juri Lal Rungta v. Banarsi Devi reported in 1986 All 94.

Order 17 Rules 2 and 3 read as follows:

Rule 2. - 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 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.

Rule 3. - Court may proceed notwithstanding either party to fail 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 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?

(b) if the parties are, or any of them is absent, proceed under Rule 2

From a perusal of Rule 2 of Order 17, it would appear that on an adjourned date of hearing if 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 he thinks fit.

Explanation appended to the said provision, however, states that where the evidence or substantial portion of evidences have been recorded on behalf of any party and such a party fails to appear on the day to which the hearing of the suit is adjourned the court may proceed with the suit as if such parties were present.

In this case, admittedly the Defendant did not examine any witnesses. Thus no evidence or substantial portion of the evidence on behalf of the Defendant was adduced. Explanation appended to Order 17 Rule 2 of the Code of Civil Procedure, thus will have no application in this case.

In the order-sheet dated 26.8.88, it was recorded as follows:

Plaintiff files Hazari. Case called out and taken up for exparte hearing. Plaintiff produced one witness namely D.P. Mukherjee. P.W. 1 examined. No other witnesses is in attendance. Case closed. Put up for expart argument on 2.9.1988.

From the aforementioned order-sheet dated 26.8.88, it is thus evident that court below had adopted the procedure laid down under Order 9 of the CPC and thus the question of the presence of the party through his advocate on that date did not arise.

The learned court below consciously ignored the appearance of the advocate of the Defendant-Petitioner and thus he proceeded with the suit as if the Defendant was not present on 26.8.88.

The decision cited by Mr. Ghosh, therefore, have no application in the facts and circumstances of the case.

In Ramsarup Prasad (supra), a division bench decision of this Court held:

Rule 2 of Order 17 itself clearly states that where, on any date 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 9 on make such other order as it thinks (sic) Order 9 deals with the failure of the parties to appear at the first hearing of the suit while Rule 2 of Order 17 deals with their failure to appear at any adjourned hearing, and although the provisions of Order 9 themselves do not apply to a case in which the Plaintiff or Defendant having already appeared has failed to appear at the adjourned hearing of the case, the said provision have been made specifically applicable by the provisions contained in Rule 2 of Order 17. Once the provisions of Rule 2 of Order 17 make Order 9 itself applicable to the disposal of a suit then, in our opinion, it does not require much discussion to observe that all the rules or Order 9 would become applicable. Because if the power of disposal is conferred on a court then it WOULD be very awkward for either the defaulting Plaintiff or Defendant not to have the remedial measures available to him as provided under Order 9 itself. This appears to be the only intention of the provisions of Order 17 Rule 2 of the Code. Taking any other view would expose the defaulting party to grave injustice and serious consequence.

In Prakash Chander v. Janki Manchanda (Supra), the Supreme Court held as follows:

It is clear that in cases where a party is absent only course is as mentioned in Order 17(3)(b) to proceed under Rule 2. It is therefore clear that in absence of the Defendant, the court had no option but to proceed under Rule 2. Similarly the language of Rule 2, as 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 Civil P.C. It is therefore clear that after this amendment in Order 17 Rule 2 and 3 Civil P.C. there remains no doubt and therefore there is no possibility of any controversy. In this view of the matter it is clear that when in the present case on 30.10.1985 when the case was called nobody was present for the Defendant. It is also clear that till that date the Plaintiffs evidence has been recorded. The Defendant was only to begin on this date or an earlier date when the case was adjourned. It is therefore, clear that up to the date i.e. 30.10.85 when the trial court closed t the case of Defendant there was no evidence on record on behalf of the Defendant. In this view of the matter therefore the explanation to Order 17 Rule 2 was not applicable at all. Apparently when the Defendant was absent Order 17 Rule 2 only permitted the court to proceed to dispose of the matter in any one of the modes provided under Order 9.

It is also clear that Order 17 Rule 3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of Defendant was closed nobody appeared for the Defendant. In this view of the matter it could not be disputed that the court when proceeded to dispose of the suit on merits had committed an error. Unfortunately even on the review application, the learned trial court went on in the controversy about Order 17, Rule 2 and 3, which existed before the amendment and rejected the review application and on appeal the High Court also unfortunately dismissed the appeal in limine by on� word.

The Supreme Court in that case set aside the order of the courts below, holding that the application under Order IX Rule 13 of the CPC was maintainable.

It is, therefore, clear that in view of the fact that the learned court below having proceeded to hear the suit ex parte in terms of its order dated 26.8.1988 and further having heard the argument advanced on behalf of the Plaintiff ex parte, the application under Order 9 Rule 13 of the CPC was maintainable.

The learned courts below therefore, failed to exercise their jurisdiction vested in them by law.

In this view of the matter, the impugned order cannot be sustained.

In the result, this application is allowed, the impugned order is set aside and the learned trial court is directed to consider the application for setting aside the ex parte decree filed by the Petitioner on merits and pass an order in accordance with law.

However, as the matter had been pending for a long time the hearing of the application for setting aside the ex parte decree should be expedited and the same should be disposed of within a period of six weeks from the date of receipt of a copy of this order.

In the facts and circumstances of the case, there will be no order as to costs.