In Re: Ramineni Suryanarayana

This revision is directed against the order of the District Munsif, Guntur, dismissing the petition for setting aside an ex parte decree. In a suit for the recovery of a sum of Rs. 2,740/- said to be the price of the pesticides supplied to the defendant, the defendant had pleaded partial discharge and the only issue raised in the suit is whether the payment pleaded by the defendant is true. The burden of proving that issue was placed rightly on the defendant. In spite of several adjournments no evidence was adduced by the defendant when it was posted for trial. On 3-7-1978 the defendant did not produce any witnesses or any evidence and as noted by the learned Munsif "he himself has not entered into the witness box to substantiate the plea taken by him, the burden of which lies upon him". The suit was decreed on the evidence of P. W. 1, who was examined on that day and denied the defendant''s plea of partial discharge in the written statement that he had paid Rs. 2,000/-. Accordingly the suit was decreed on 4-7-1978. From the judgment it is clear that the counsel for the defendant was present on 3-7-1978 when the evidence of P. W. 1 was recorded and on 4-7-1978 when the judgment was pronounced. On the footing that an ex parte decree was passed against him the defendant filed a petition under Order IX, Rule 13, C. P. C. to set aside the decree. The petition was dismissed both on the ground that it was not an ex parte decree and a petition under Order IX, Rule 13, C. P. C. does not lie and on the ground that there are no sufficient grounds for allowing the petition.

In this revision petition it is contended by Mr. B. V. Subbaiah, the learned counsel for the petitioner, that the proceedings taken on 3-7-1978 and the judgment and decree rendered on 4-7-1978 must be treated as an ex parte decree inasmuch as the defendant was not present in person and his counsel has asked for an adjournment and the same having been refused did not further participate in the proceedings. It is true that the defendant was not present in person, but admittedly his counsel was present and sought an adjournment. Presence of the counsel on behalf of the defendant constitutes the presence of the defendant. If, as admitted by the petitioner, his counsel has sought an adjournment of the hearing he effectively represented the defendant on the date when the evidence of P. W. 1 was recorded and the judgment was pronounced. There is nothing on record to show that after the adjournment was refused, the counsel withdrew from the case or resorted ''no instructions''. On the contrary both on that day and even on the next date when the judgment was pronounced, he was present. Order , R. 1 enables the party to enter appearance, file any application or perform any act in person or by his recognised agent or by a pleader except where it is otherwise expressly provided by any law for the time being in force. Hence presence of the party''s counsel amounts to presence of party for purposes of Order 17, R. . The presence of the counsel constitutes the presence of the defendant and the proceedings taken in his presence on 3-7-1978 and the judgment rendered on 4-7-1978 cannot be treated as ex parte judgment and a such a petition under Order IX, Rule 13, C. P. C. was rightly held to be not maintainable.

Mr. Subbayya, the learned counsel for the petitioner, however relied upon certain decisions of this Court to contend that if a party is present through counsel he cannot be deemed to be present for the purpose of proceeding under Order 17, Rule 3, C. P. C. and if the party is not present in person but is only present through counsel he must be deemed to be absent and any proceeding taken in such a situation must be deemed to be ex parte proceeding entitling sch party to file an application under Order 9, Rule 13, C. P. C. He first referred to the Full Bench decision of this Court in M. Agaiah Vs. Mohd. Abdul Kereem, , in which it was held thus :-

"Both on the language of the relevant rules and the decided cases, the position is clear that where the parties fail to appear in Court, it is open to the Court to dismiss the suit for default, the other alternative being to adjourn it to another date. But it is not competent to the Court in the absence of parties to proceed to dispose of the case on the merits, though the defaulting party is also guilty of non-compliance with the requirements of Rule 3."

The Full Bench was dealing with a case where a party who was granted time to perform an act not only failed to do it but also absented himself on the date to which the hearing was adjourned. The Court held that in such a case Rule 2 and not Rule 3 of Order 17 applied. The Court further held that Rule 3 comes into operation only where the parties are present and are prepared to proceed with the further hearing of the case but commit default of the kind mentioned in that rule. This decision is not an authority for the proposition that the appearance of a party through a counsel is tantamount to the absence of a party and for the purpose of the application of Order 17, Rule 2 or 3, the Court contemplates the presence of the party in person. The learned counsel also relied upon another decision of a single Judge of this Court in Marothu Suryarao Vs. Paluri Pediyya and Others, , wherein Ekbote, J., as he then was held:-

"Order 17, Rule 3, C. P. C., does not apply to case where a party appears merely for the purpose of seeking an adjournment, after the refusal of which, whether he goes out or although remains present does not participate in the hearing of the case, in either case he would be considered as not present.......................... ... ... ... ... ... ... .... ..... .... ... ... ... ... ... ... .. .... ..... ...

It is now beyond doubt that the mere presence in Court of a party or his counsel not duly instructed cannot be considered as an appearance of the party within the meaning of Order 17, Rule 3, C. P. C., ... ... .... ... ... ... ... ... ... ... .. .. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...".

That again was a case where the party sought an adjournment and after the adjournment was refused, he left the Court and the Court set him ex parte and proceed to pronounce the judgment in the presence of the counsel "not duly instructed" and who did not take further part in the proceedings. Further it was a clear case where the Court set ''the defendant ex parte" and the counsel was "not duly instructed" and did not take part in the proceedings. In those circumstances, the Court held...........................................

"Mere presence in Court of a party or his counsel not duly instructed cannot be considered as an appearance of the party within the meaning of Order 17, Rule 3, C. P. C."

The learned counsel further relied upon a judgment of my learned brother Ramachandra Raju, J. in Thummala Suryamma Vs. The Andhra Pradesh State Electricity Board and Others, wherein it was held that mere physical presence in Court does not amount to participation in the hearing when there is no actual participation as such in the hearing and the decree passed should be deemed to be one under Order 17, Rule 2, C. P. C. and not under Order 17, Rule 3 and as such a petition under Order 9, Rule 13, C. P. C. lies. This also is not a case where it was laid down that if the party is not present in person but is present through counsel he should be deemed to be not present for the purpose of O. 17, R. 2, C. P. C. The test laid down was whether the presence of the counsel for the party was mere physical presence in the Court or was it a presence in the Court amounting to participation in the hearing. On the facts and circumstances of that case it was held that the counsel present did not represent the party. Though the petitioner also relied upon a decisions of the Madras High Court in C.R. Corera and Bros. Vs. The Chief Secretary, Govt. of Pondicherry, , that decision actually goes counter to his contention that the counsel''s mere presence cannot be deemed to be the presence of the party for the purpose of Order 17, Rule 2 or 3, C. P. C. In para 7 Somasundaram, J. observed as follows:-

"Rule 3 applies to a case where the suit is adjourned on the application of a party and he is in default at the adjourned hearing. This is what has happened in this case. For Rule 3 to apply the party must be present at the adjourned hearing. His advocate has been present in this case. The decision under Order XVII, Rule 3 amounts to a decree and the remedy of the party aggrieved can be only by way of appeal."

The earlier Full Bench decision of the Madras high Court in Pichamma v. Sreeramulu (AIR 1918 Mad 143 (2) (FB)) which is sought to be relied upon by the learned counsel for the petitioner, also does not help him in any manner. That decision laid down thus:-

"There is no conflict between Rules 2 & 3 of Order 17. They are independent and mutually exclusive. Where the requisites of Rule 2 are satisfied, that rule and not Rule 3 should be applied although, in addition to the absence of the party, circumstances exist which would satisfy the requirements of Rule 3."

That decision does not deal with the question whether the presence of the parties in person or includes presence of the parties through their counsel; it lays down...........................

Rule 2 of Order 17, deals with cases of absence of parties and Rule 3 with failure to do what was ordered. If the party fails to appear Rule 2 applies and the Court should not assume that he is guilty of default and apply the stringent provisions of Rule 3. Rule 3 applies only to cases where the parties are present and have not satisfied the Court as to the existence of any adequate reason for their not having does what they were directed to do."

In the instant case, from the proceedings of the Court and the Judgment recorded by it, it is clear that the defendant was present through his counsel both on 3-7-1978 and 4-7-1978. The evidence was recorded in his presence and the judgment was pronounced in his presence. Although he sought an adjournment was refused he did not cease to represent the defendant-petitioner. He did not report ''no instruction''. He did not withdraw from the case or fail to participate in the proceedings. Merely because he did not lead any evidence to substantiate the plea taken by the defendant, it cannot be said that the defendant was set ex parte and an ex parte judgment and decree was rendered against him. Consequently a petition under Order 9, Rule 13, C. P. C. does not lie. That is what the lower court has held and I see no reason to interfere with the order. Even otherwise, assuming that a petition under Order 9, R. 13 does lie, there are no merits in the petition. He has not adduced any explanation as to why he could not be present although several adjournments were given.

This revision petition therefore fails and is accordingly dismissed.

Petition dismissed.