Puthuvachola Muhammed vs Narayanikutty Amma and Others

K.P. Balanarayana Marar, J.—The question that arises in this appeal is whether an appeal lies against an order dismissing a suit for default.

Appellant is the Plaintiff in O.S. 106/80 before Sub Court, Ottapalam. After framing issues the suit was posted for trial to 20th of August 1984. An application for adjournment was presented on behalf of Plaintiff. The court rejected that application. Plaintiff''s Counsel was not ready to proceed with the trial. Plaintiff was also absent on the date of hearing. In the circumstances the court dismissed the suit. A decree is also seen to have been drawn. Plaintiff has presented this appeal against that judgment and decree. The grievance of the Appellant is that the rejection of the request for adjournment is illegal and improper. The maintainability of the appeal is questioned by learned Counsel for the Respondents.

Heard Counsel on both sides.

Order IX of the CPC lays down the procedure to be followed on the appearance or non-appearance of the parties on the first hearing and Order XVII regulates the procedure at the adjourned hearing. When a party who has appeared on the first hearing date fails to appear on an adjourned date the court may proceed to dispose of the suit in one of the modes prescribed under Order IX. If both parties are absent the suit may be dismissed under Rule 3 of Order IX. If only Plaintiff appears and the Defendant is absent the court, has to proceed ex parte under Rule 6 of Order IX. If the Plaintiff is absent but the Defendant is present the suit shall be dismissed under Order IX, Rule 8. The remedies available to the parties in each case are also contemplated in Order IX. The relevant rules are Rules 4, 9 and 13.

Order XVII regulates the procedure at the adjourned hearing. The court may if sufficient cause is shown at any stage of the suit grant time to the parties and may from time to time adjourn the hearing of the suit. Rule 2 of Order XVII provides that where on any day to which the hearing of the suit is adjourned the parties or any of them fail to appear the court shall 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. This Rule contains an. explanation introduced by the amendment of 1976. The explanation says that 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. The procedure to be followed by the court where a party 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 granted is provided in Rule 3 of Order XVII. It is stipulated that the court may proceed to decide the suit forthwith notwithstanding such default if the parties are present. On the other hand, if the parties are or any of them is absent the court may proceed under Rule 2. On a reading of Rules 2 and 3 of Order XVII it is seen that Rule 2 applies when one or both of the parties do not appear on the day fixed for the adjourned hearing and in such a case the court has to proceed in accordance with the provisions in Order IX. The court is competent to make such order as it thinks fit. But in view of the specific provision contained in Rule 2 the court has to dispose of the suit in one or other of the modes directed in that behalf by Order IX of the Code. Rule 3 also applies to the adjourned hearing but if the parties are or any of them is absent the court has to proceed under Rule 2.

The provisions of Rules 2 and 3 of Order XVII had changed by virtue of the Amendment Act of 1976. The amended provisions came up for consideration before the Supreme Court in Prakash Chander Manchanda and Another Vs. Janki Manchanda, . The Supreme Court held:

It is clear that in cases where a party is absent the only course as mentioned in Order 17, Rule 3(b) is 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 it 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 of the Code of Civil Procedure.

A division Bench of this Court after a survey of the various decisions on the topic observed in Sankara Pillai v. Balakrishnan Nair 1988 (1) KLT 339, that Rule 3 applies to a case where any party to a suit to whom time has been granted fails (a) to produce his evidence, or (b) to cause the attendance of the witnesses or (c) to perform any other act necessary to the further progress of the suit, for which time has been allowed. In such contingencies, the court may notwithstanding the default proceed in one of the two ways, i.e. (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. It was further observed that even where conditions requisite under Rule 3 are satisfied the court can proceed to decide the suit only when the parties are present. If the parties are or any of them is absent the court cannot dispose of the suit on merits. It can proceed only under Rule 2. The disposal then is to be one under Order IX of the Code. In such a case remedies under Order IX, CPC would be available to parties.

Learned Counsel for Appellant maintains that the decision appealed against was one rendered on merits and has to be treated as a disposal under Rule 3 of Order XVII. In support of this contention he had cited the decision of this Court in Sankara Pillai v. Sankaran 1987 (2) KLT 382. Therein it was observed that Order XVII, Rule 3 of the CPC was satisfied if either party or his Counsel was present and the party was in default or any of the matters specified under that rule. Evidently there was default in so far as neither Counsel nor the Plaintiff was in a position to go on with the evidence. Counsel was admittedly present. It was observed that the presence of the Counsel was in law presence of the party who had been summoned to appear either in person or by Counsel. This Court held that even assuming that Plaintiff was absent, the presence of Counsel and the default of the party together attracted Rule 3, thereby making the judgment of the trial court appealable. The distinction between Rules 2 and 3 of Order XVII of the Code as amended by the Amendment Act of 1976 and the principles enunciated by the Supreme Court in Prakash Chander Manchanda and Another Vs. Janki Manchanda, are seen to have been overlooked by the learned Judge who rendered the decision in 1987 (2) KLT 382 (supra). We are bound by the decision of the Supreme Court and the Division Bench decision in 1988 (1) KLT 339 (supra). It has to be held that in a case where one of the parties remains absent and for that party no evidence has been adduced upto that date the court has no option but to proceed to dispose of the matter in accordance with Rule 2 of Order XVII. It necessarily follows that the disposal can only be in any of the modes prescribed under Order IX of the Code. Plaintiff was admittedly absent on the date of hearing and no evidence had been adduced on his side upto the date of hearing. The disposal can only be one under Rule 2 of Order XVII and the remedy available to the Plaintiff is the mode prescribed in Order IX.

Rule 8 of Order IX stipulates the procedure to be followed when the Plaintiff does not appear when the suit is called for hearing. The court shall make an order that the suit be dismissed, unless the Defendant admits the claim or part thereof, in which case a decree has to be granted on such admission. The court is passing an order for dismissal and not a decree. The remedy is an application under Rule 9 of Order IX. That Rule provides that Plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action where a suit is wholly or partly dismissed under Rule 8. But Plaintiff may apply for an order to set the dismissal aside. If he satisfies the court that there was sufficient cause for his non-appearance the court shall make an order setting aside the dismissal upon such terms as to the costs or otherwise as it thinks fit. The only remedy provided in the Code in the case of a dismissal of a suit for default is the one provided in Rule 9 by way of an application to get the dismissal order set aside. In the case of a decree passed ex parte two remedies are available. (1) To apply under Rule 13 of Order IX and (2) to appeal u/s 96. The remedies are concurrent. A party can apply under Rule 13 of Order IX to get the ex parte decree set aside and at the same time appeal against the ex parte decree. By virtue of the explanation introduced in Rule 13 by the Amendment Act of 1976 no application shall lie under that Rule for setting aside the ex parte decree where there has been an appeal against a decree passed ex parte under this Rule and the appeal has been disposed of on any ground other than the ground that the Appellant has withdrawn the appeal. Rule 9 prescribes the remedy available to the Plaintiff whereas the remedy available to the Defendant is one under Rule 13. On a reading of these two provisions it is clear beyond doubt that in the first case the remedy is only by way of an application whereas in the latter the Defendant has two remedies, one by way of appeal and the other by way of an application to set aside the decree. A dismissal of the suit for default bars the Plaintiff from bringing a fresh suit on the same cause of action. Rule 8 provides for passing only an order that the suit be dismissed and not a decree of dismissal. The remedy of a Plaintiff whose suit has been dismissed for default is only by way of an application under Rule 9 of Order IX to get the dismissal set aside. The order of dismissal is not appealable. The fact that the court below has drawn up a decree in accordance with the judgment is no reason to hold that what has been passed by the court is a decree and not an order. Section 96 of the Code contemplates an appeal from an original decree passed ex parte but not from an order of dismissal of the suit for default. That order is not made appealable either u/s 104 or under Order XLIII, Rule I, Code of Civil Procedure. Any order of dismissal for default is excluded from the definition of decree in Section 2(2) of the Code. The result is that no appeal lies against an order dismissing the suit for default.

The appeal is therefore found to be not maintainable and is hereby dismissed but without costs.