Harihar Roy vs Badri Narayan Das

A.M. Bhattacharjee, J.—On the date fixed for hearing of a defendant''s application under Order 9 Rule 13 of the Code of Civil Procedure, the defendant prayed for an adjournment on the ground of the inability of his lawyer to attend the Court, The prayer for adjournment having been refused and the defendant therafter taking no further step to prosecute the application, the same was dismissed for default and the defendant has now filed this appeal against the said order of dismissal. Appearing for the plaintiff/respondent in support of the order of dismissal, the learned Counsel Mr. R.K. Sanyal, has urged that as the decree sought to be set aside was not an exparte but a contested one, an application under Order 9 Rule 13 could not lie. Mr. Sanyal has drawn our attention to the certified copy of the decree where it has been noted in the ordering portion that "the suit is decreed on nominal contest". It is obvious that if the suit was decreed on contest, whether nominal or substantial, no application'' could lie for setting aside the same under Order 9 Rule 13 as the said Rule on its express terms would apply only "in any case in which a decree is passed exparte".

It appears from the Order decreeing the suit, being No. 21 dated 17.1.1984, that "the suit was fixed for hearing on 20.12.1983. P.W. 1 Badrinarayan (i.e. the plaintiff) was examined and partially cross-examined on that day. He was to be cross-examined on the following day. The defendant filed an application for adjournment on 21.12.1983. It was considered and rejected. Nobody appeared for the defendant for cross-examining the witness. Defendant was found absent on call". And the suit was then eventually decreed by the trial-Judge on a consideration of the evidence of the plaintiff who was only cross-examined in part and other materials on record by the aforesaid Order dated 17.1.1984. Could it be said to have been decreed on contest to rule out application of Order 9 Rule 13 of the CPC which undisputedly applies only to exparte decrees?

As the suit was disposed of not at the first hearing but at the adjourned hearing, the relevant provisions for the determination of this question would be the provisions of Rule 2 and Rule 3 of Order 17, which are as follows : -

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.

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.

The words "any party to the suit to whom time has been granted" and "for which time has been allowed" in Rule 3 would at once make it clear that Rule 3 can apply when the case has been adjourned on time being granted to a party at his instance to enable him to perform any of the acts specified in Rule 3. When the case has been adjourned, not on the prayer of a party, but by the court on its own for want of time or for the working hours being over or for some other reasons, the provisions that would govern the adjourned hearing the provisions of Rule 2. In the case at hand, the case was adjourned on 20.12.1983 by the court on its own for further hearing to 21.12.1983 and that being so, a failure of the defendant to appear and to proceed with the case on that date directly attracted the provisions of Rule 2. It may, however, be noted that even assuming that Rule 3 applied, the absence of the defendant on the adjourned date would have attracted the provisions of Rule 3(b), which, in its turn, would have brought Rule 2 into operation. Clauses (a) and (b) of Rule 3 have been substituted by the Amendment Act, 1976 for the words "the Court may, notwithstanding such default, proceed to decide the suit forthwith". As a result oil the combined operation of Rule 2 and Rule 3(b), as amended, the position, therefore, is that whether a suit has been adjourned at the instance of a party to enable him to perform any of the acts as referred to in Rule 3, or has otherwise been adjourned by the Court for some other reasons, if the parties or any of them fail to appear on the adjourned date, the court may proceed under Rule 2.

Be that as it may, as already noted, the suit in the case at hand, was not adjourned at the instance of any party within the meaning of Rule 3, but was otherwise adjourned within the meaning of Rule 2. On the adjourned date, an application for adjournment on behalf of the defendant was rejected and the defendant failed to appear to proceed with the suit. The plaintiff was already examined-in-chief and was also partially cross-examined on the day proceeding. The trial court, finding the defendant to be absent on call, proceeded to consider the evidence already on record and ordered that "the suit is decreed on nominal contest". Can this, in law, be treated to be a decree on contest to rule out the application of Order 9 Rule 13? We have no doubt that, both on principle as well as on authority, the answer must be in the negative.

Under the Explanation to Rule 2, inserted by the Amendment Act of 1976, a party, notwithstanding his failure to appear on the adjourned date of hearing, may still be deemed to be present only if the whole whole or at least a substantial part of his evidence has already been recorded and in such a case the court may, notwithstanding such absence, proceed with the case "as if such evidence is on record, the court, if it chooses to proceed, must proceed exparte in the absence of the defaulting party. In this case, no part of the evidence of the defendant was recorded and even though the plaintiff was cross-examined in part on behalf of the defendant the evidence of the plaintiff in cross-examination was obviously the evidence of the plaintiff only and not of the defendant. The court must, therefore, have proceeded exparte and the decree, howsoever labelled, was an exparte decree.

Our view finds full support from a Division Bench decision of this Court in Braithwaite, Burn & Jessop v. Abdul Gafoor (1985 2 Cal HCN 34), to which our attention has been drawn by Mr. Banerjee, the learned Counsel for the defendant/appellant. It appears from the judgment (supra, at 36), that in that case also the plaintiff''s witnesses were examined and also cross-examined, but on the failure of the defendant to appear on the date to which the suit was adjourned for further evidence, the trial court proceeded with the hearing of the suit when the plaintiff examined one more witness and the court, after hearing argument decreed the suit was "disposed of under the provisions of Order 9 Rule 6 of the CPC and not otherwise because...............reading Rule 2 along with Explanation in the given situation, the court had no other alternative but to adopt the procedure under Order 9 Rule 6". To the same effect in yet another earlier Division Bench decision of this Court in Tapati v. Lakshmi Kanta (1984 - 1 Calcutta High Court Notes 358) to which also our attention has been drawn by Mr. Banerjee. There it has been pointed out (at 364) that where evidence of a party or at leat a substantial portion thereof has not been recorded and that party fails to appear on an adjourned date, then the Explanation to Rule 2 would not apply and the Court can not in its discretion proceed with the suit as a contested one. It has been pointed out further that on a harmonious reading of Rule 2 and Rule 3 of Order 17, it would appear that "the Court may dispose of the suit as a contested one when notwithstanding default to adduce evidence, both parties are present - vide, Rule 3(a) - or when evidence or substantial portion thereof on behalf of a party has been already recorded but such party is absent on an adjourned date of hearing - vide, Explanation to Rule 2 of Order 17 of the Code of Civil Procedure".

Thus the position that would emerge from a consideration of the provisions of Rule 2 and Rule 3 of Order 17, as amended by the Amendment Act of 1976, is that when both the parties have appeared on the date to which the hearing or further hearing of the suit is adjourned, or the whole or at least a substantial portion of the evidence of a party who has failed to appear on that date has already been recorded, the decree passed would be one on contest. We would accordingly hold that the decree in the case at hand could not be., in law, and was, therefore, not a decree on contest and, in view of the provisions of Order 17, Rule 2 read with Order 9 Rule 6, the suit must be deemed to have been decreed exparte and, therefore an application under Order 9 Rule 13 for setting aside the said decree was perfectly maintainable. As already noted, the decisions of the two Division Bench decisions of this Court in Braithwaite, Burn & Jessop (supra) and in Tapati v. Lakshmi Kanta (supra) are also to the same effect. We would, however, like to add that the observations in Braithwaite, Burn & Jessop (supra. 38, para 8) to the effect that "there can be no decision on merits unless both the parties are present", may, if not properly understood, give rise to the impression that the decision in a suit decreed exparte, where the plaintiff'' alone was present and the defendant was absent, is not a decision on merits. An exparte decision decreeing the suit is also nevertheless a decision on merits, though not on contest and as it would appear from the concluding paragraph of the judgment (para 9), the Division Bench has also treated such a decree as one on contest. All that the Division Bench wanted to mean by the aforesaid observations is that there can be no decision on contest unless both the parties are present. But there again, it should be noted that there may be a decree on contest even though a party has failed to appear on the date of hearing if the whole or at least a substantial portion of his evidence was already recorded, as in that case the court may treat such party to be present because of the deeming provisions in the Explanation of Rule 2 of Order 17.

Be that as it may, once we hold, as we do, that the application under Order 9 Rule 13 was maintainable as the decree in question was an exparte one, we are inclined to hold further that in the facts and circumstances of this case, the trial court should not have dismissed that application for default and should have allowed the adjournment prayed for by the defendant. The defendant applied for adjournment on the ground that his "Advocate, who has been elected to be councilor of the Calcutta Municipal Corporation, is heavily engaged to prepare is return of Election expenses and as such your petitioner (i.e. the defendant is unable to proceed with the above case today". The trial Judge rejected this application after observing "prayer is considered and rejected as grounds not sufficient" and on the defendant''s taking no further step, dismissed the application under Order 9 Rule 13.

True, under our Codes of Procedure, a party is entitled to conduct his case in person without the aid of a lawyer, but that right has become a mere paper-right, because our laws are very much esoteric and the labyrinth of our laws, both procedural and substantive, and the enigmatic features prevailing under our present adversary legal system leave a party almost with no option but to engage a Counsel to prosecute his case. In such a case, to quote from the decision of the Supreme Court in Rafiq and Another Vs. Munshilal and Another, , "the obligation of the party is to select his Advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things" as "after engaging Lawyer, the party may remain supremely confident that the Lawyer will look after his interest". And if a party has done all that, than, as the Supreme Court has observed further in the form of a question, "what is the fault of the party who having done everything in his power and expected of him would suffer because of default of his Advocate".

This has again been reiterated by the Supreme Court in Goswami Krishna Murarilal v. Dhan Prakash (1981-4 SCC 574 and these observations have again been quoted with approval in another later decision of the Supreme Court in Smt. Lachi Tewari and Others Vs. Director of Land Records and Others, It should be noted that in Rafiq v. Munshilal (supra), the Supreme Court, after raising the question as to whether the party should suffer for the negligence, inaction or other default of his Advocate, has categorically stated that "the answer is obviously in the negative". That is, if we may say with respect, what it should he, for if an officer of the court, as a lawyer is, lets down a party the court, instead of penalising the party for the default of its officer and thus letting him down further, should see that he gets due opportunity to present his case by engaging another lawyer or otherwise, we would accordingly hold that though the ground for adjournment, namely, the inability of the lawyer to attend court for his being busy to prepare the return of his Election expenses was not otherwise quite a satisfactory one, the Court, in the interest of justice, should have granted adjournment, unless it was satisfied that the party had sufficient time to engage another lawyer of his choice.

It is true that the Proviso (d) to Rule 1 to Order 17, inserted by the Amendment Act, 1976, provides that "where illness of a Pleader or his inability to conduct the case for any reason, other than his being engaged in another court, is put forward as a ground of an adjournment, the court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another Pleader in time" and that may give rise to the impression that it is for the party, seeking adjournment on the ground of the inability of his Lawyer to attend court, to satisfy the court affirmatively that he had no sufficient time to engage another Counsel. It must be noted that the provisions of Order 17 applying to suits proprio vigore apply to proceedings under Order 9 in view of the Explanation to Section 141 of the Code, inserted by the Amendment Act of 1976. But even under those provisions, we would like to think that a court should not refuse adjournment when it finds that a parry is unable to proceed with the hearing of his case because of the default on the part of the Lawyer of his choice to appear, unless it is further satisfied that the party even after he could know about his Lawyer''s inability to attend, had sufficient time to engage another Lawyer. The court must look beyond to the party behind the Lawyer. Let us frankly confess that in this Court we are passing over cases almost daily on the ground that the Lawyer of one party or the other is engaged before another Bench, even though Clause (c) of the Proviso to Rule 1 of Order 17 clearly provides that "the fact that the Pleader of a party is engaged in another court shall not be a ground for adjournment". The provisions of Order 17 may not, in terms, apply to appeals or revisions. But still then, are we doing a little wrong in view of the principle enacted in that Proviso (c)? We do not think so, as refusal to pass over in such a case would result in depriving a litigant, who might be waiting patiently for years and years in this Court only to have his case hard, of his valuable right to duly and effectively present his case and, as already stated, we must look to the litigant behind the Lawyer. And borrowing from Bassanio in Shakespeare''s Marchant of Venice, may we also add that even if we are doing a little wrong, we are doing it for greater right?

We would accordingly allow this appeal, set aside the impugned order dismissing the application under Order 9 Rule 13 and send the case back to the court below to try and dispose of the said application under Order 9 Rule 13 in accordance with law as early as possible and, at any rate, within the month of June, 1988. The parties are directed to appear before the trial court on 15th February, 1988 to receive directions of that court as to further proceedings. No costs. Records, with a copy of this judgment, to go down at once.

Ajit Kumar Nayak, J.

I agree.