N.A. Suyambulingam vs V.K. Swaminathan and Another

V. Ramaswami, J.—This is an appeal against the order of the learned single Judge allowing A.A.O. No. 783 of 1986 and setting aside an

Ex Parte judgment in O.S. No. 180 of 1983, on the file of the first Additional Subordinate Judge, Erode. The suit was taken up for trial on

22.10.1984, and on that date P.W. 1 was examined and Exs. A1 to A9 were marked. On that day, counsel for the first defendant was also

present. The case was adjourned for further trial on 24.10.1984. On that day, counsel for the first defendant withdrew his appearance and the first

defendant was set Ex Parte. P.W. 1 was further examined and the case was posted to 25.10.1984. It appears that on that day the second

defendant was examined and Ex. B1 also was marked. The arguments of the plaintiff were heard and the judgment was delivered on 31.10.1984.

On 22.11.1984 the first defendant filed an application to set aside the Ex Parte decree. That petition was dismissed by the learned Subordinate

Judge. However, on appeal, the learned single Judge of this Court allowed the appeal and set aside the judgment and decree and remanded the

matter for fresh trial on merits.

In this appeal, learned Counsel for the appellant (plaintiff) raised two contentions. Firstly, he contended that the judgment dt. 31.10.1984, is not

an Ex Parte judgment (sic) is not maintainable. This was on the ground that the suit had been taken up for trial and, in fact, some evidence had

been taken and therefore on merits and the judgment delivered should not be treated as an Ex Parte judgment. The relevant provision of the CPC

is Rule 2 of Order 17, which reads as follows:

Rule 2 : 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 of Order 9 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.

As may be seen from the Explanation, the party failing to appear should have let in evidence or a substantial portion of the evidence in order to

enable the Court to proceed with the case as if the party were present. The first defendant has not let in any evidence in this case. Only the plaintiff

had let in evidence and the second defendant also has let in evidence. The contesting first defendant had not entered on his defence, so to say, by

giving any evidence and his counsel withdrew his appearance during the examination of P.W. 1 on 24.10.1984. In such circumstances, in view of

the Explanation to Rule 2 of Order 17 , it would not be said that the first defendant should be treated as having begun his part of the case in the

suit, entitling the Court to proceed with the case as if he was present. In the circumstances, the treatment of the case as Ex Parte was right and

does not call for any interference.

The next contention of learned Counsel was on merits. The ground, on which the petition to set aside the Ex Parte decree was filed, was that the

defendant had taken ill and was bed-ridden and in support this, he had produced a medical certificate. He had also examined himself as P.W. 1

and the doctor who had given the medical certificate as P.W. 2 in the petition to set aside the Ex Parte decree. The learned Subordinate judge

refused to accept the certificate or the evidence let in by the party. But, however, the learned single Judge held that since the medical officer himself

bad been examined and a certificate had been issued by him, the evidence could not be rejected. We are unable to agree with the learned Counsel

that there is any flaw in this approach of the learned single judge. Nothing more could be expected from the first defendant except to examine the

doctor and produce the medical certificate and he had also examined himself. There was also nothing on evidence to disbelieve the evidence of the

doctor. In the circumstances, we are with the learned single Judge that the first defendant was prevented by sufficient cause due to illness from

appearing in Court and contesting the suit on 31.10.1984. This appeal accordingly fails and it is dismissed.