Raj Kumar and Another vs G. Anasuya

K.B. Siddappa, J.—This Revision is filed against the Judgment passed in C.M.A.No. 25/92 on the file of District Judge, Nizamabad.

The defendants are the Revision petitioners. In this case the evidence of the plaintiff was closed on 10-4-1990 and the case was adjourned for the evidence of defendants on 16-4-1990, and the case was adjourned from time to time. Ultimately, it was posted to 16-7-1990. On that date, the defendants were not ready and requested for time. However, the Court did not grant any time and closed the defendants'' side and on 6-8-1990 the decree was passed on merits. The defendants filed application under Order 9 Rule 13 C.P.C. to set aside the decree. The trial Court held that such application is not maintainable, as it is not an ex parte decree and that the correct provision is Order 17 Rule 2 proviso (sic. Explanation). As the decree was passed under Order 17 Rule 2 C.P.C. it cannot be set aside.

This finding was confirmed by the District Judge in Civil Miscellaneous Appeal.

Aggrieved by the said Judgment the present Revision is filed.

In this case, admittedly, there is no evidence on the part of the defendants. After several adjournments when the case was posted on 16-7-1990 the defendants were not ready. Therefore, the defendants'' evidence was closed and the decree was passed on 6-8-1990. Order 17 Rule 2 Explanation reads as follows:-

" 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".

A plain reading of the above provision would indicate that there should be a portion or substantial portion of the evidence on behalf of a party to fall within the ambit of the explanation. In this case, there is no evidence at all on behalf of the defendants. Therefore, Order 17 Rule 2 C.P.C. Explanation is not attracted in this case.

In K. Ramachandra Raju v. Syndicate Bank, Mehdipatnam Branch, Hyderabad 1983 (2) AnWR. 130 : 1983 (2) APLJ 1 : 1983 (1) ALT 77 , a Bench of this Court in similar circumstances considered the scope of Order 17 Rule 2 Explanation and held as follows:-

"11. Explanation to Order 17 Rule 2 states 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 matter as if such party were present. The learned Counsel submits that the above explanation is attracted only when a party has already adduced evidence and failed to adduce further evidence. In the instant case the defendant-appellant has not started his evidence. The plaintiff only closed his evidence on 17-8-1982 and the plaintiff had no further evidence to be adduced. In the circumstances, this explanation is not applicable to the present case in view of the fact that the defendant-appellant has not started adducing evidence on his side. Therefore, the provision under which lower Court could proceed and could be deemed to have proceeded is Order 9 Rule 13 C.P.C".

Again, a single Judge of this Court in Gali Laxmamma Vs. Reparthi Anjaiah, in similar circumstances held:

"3. As the District Munsif proceeded with the case without giving any opportunity to the defendant, the same gives discretion to the Court to proceed only under Rule 3, and deliver Judgment but that discretion is limited only in cases where a party is absent who has led some evidence or has examined substantial part of their evidence. But in this case the party that was absent did not open his case at all before the presiding officer disposed of the suit itself on merits. As the discretion vested in the Court was wrongly exercised in this case though the order is on merits, it has to be treated as an ex parte order and the petitioner is entitled to file an application under Order 9 Rule 13 C.P.C. seeking to set aside the ex parte order. In such an event, if the trial Court dismissed the application, only C.M.A. will lie under Order 43 Rule (1)(d) of C.P.C. and the party cannot be directed to file a regular first appeal as was held by the Subordinate Judge, in this case. The order of the Subordinate Judge cannot be sustained in law as an application under Order 9 Rule 13 can be very much filed in this case in the light of the facts stated above".

The learned Judge followed the ratio of the decision in Prakash Chander Manchanda and Another Vs. Janki Manchanda, .

In view of the clear pronouncements, the point involved in this case is no longer res-integra. The facts of the case come within the four corners of the Judgments cited above. Consequently, I hold that an application under Order 9 Rule 13 C.P.C. is certainly maintainable. The Judgment under Revision is set aside and the lower Court is directed to entertain the application filed under Order 9 Rule 13 C.P.C. and to decide the same on merits.

In the result, the Civil Revision Petition is allowed. No costs.