Ramji Lal vs XIth Addl. District Judge and Others

R.H. Zaidi, J.—Heard learned counsel for the parties and also perused the record.

This petition is directed against the order of court below passed under Order XVII, Rule 3, Code of Civil Procedure

It appears that Respondent No. 3. filed a suit, being Suit No. 774 of 1983, in the Court of Civil Judge, Meerut. The aforesaid suit was decreed by the trial court under Order XVII, Rule 3, CPC Thereafter, the Petitioner filed an application under Order IX, Rule 13, CPC for setting aside the ex parte judgment and decree dated 2.2.1987. Court below dismissed the said application as not maintainable. Revision filed by the Petitioner also met the same fate.

Learned counsel for the Petitioner vehemently urged that the judgment and decree passed by the trial court were ex parte and were liable to be set aside under Order IX, Rule 13, CPC and the trial court acted illegally in exercise of its power under Order XVII, Rule 3, CPC In support of his submissions, learned counsel for the Petitioner placed reliance upon a Full Bench decision of this Court in the case of Seth Munna Lal Vs. Seth Jai Prakash,

I have considered the submissions made by the learned counsel for the Petitioner also perused the record.

In Seth Munna Lal''s case (supra), the question before the Full Bench was as to whether a decision recorded specifically under Order XVII, Rule 3 of the CPC would exclude relief under the provisions contained in Order IX of the CPC irrespective of the question whether, in recording its decision under Rule 3, the Court acted rightly or wrongly. The said question was answered by the Full Bench as under:

...it is permissible to entertain an application for restoration under Order IX even when the Court purports to act under Order XVII, Rule 3 if the circumstances set out by the Court are such that an order under Order IX read with Order XVII, Rule 2 would be legally justified and the actual order passed is one which could be legally passed under Order IX read with Order XVII, Rule 2.

In view of law laid down by this Court in the case of Seth Munna Lal (supra), it will have to be seen as to whether the order passed by the trial court can be justified under Order XVII, Rule 2, Code of Civil Procedure

Admittedly, on the date fixed the Petitioner was present in the trial court. He also moved an application for adjournment of the case, but the same was rejected, and the case was directed to be taken up after lunch. In spite of the said order passed by the trial court, the Petitioner refused to participate in the proceedings on the date fixed, which was admittedly an adjourned date and was fixed at his own request to lead his remaining evidence as the evidence of the Plaintiff was already concluded. Therefore, the trial court had no option but to proceed under Order XVII, Rule 3, C. P. C. Order XVII, Rules 2 and 3 as amended by this Court provide as under:

Procedure if parties Jail to appear on day fixed.--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.

HIGH COURT AMENDMENT

Allahabad (Notification No. 2874/35 (a) -6 (3) of 10.7.1943). Add to Rule 2:

Where the evidence, or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on such day, the Court may in Its discretion proved with the case as if such party were present, and may dispose of it on the merits.

Explanation.--No party shall be deemed to have failed to appear if he is either present or is represented in Court by an agent or pleader, though engaged only for the purpose of making an application.

Court may proceed notwithstanding either party fails to produce evidence etc.--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).

HIGH COURT AMENDMENT

Allahabad (No. 16700-H, dated 17.1.1953)--Put a comma after the first word "Where" and insert thereafter "in a case to which Rule 2 does not apply.

Under the facts and circumstances of the present case, it cannot be said that the Petitioner had failed to appear before the trial court. The Petitioner was factually present in the trial court and he has also filed an application for the adjournment of the hearing of the case on the date fixed, i.e., 2.2.1987. Therefore, the trial court was fully justified in proceeding to decide the suit in exercise of its powers under Order XVII, Rule 3, Code of Civil Procedure

The Petitioner thereafter moved an application for setting aside the decree passed under Order IX, Rule 13, C.P.C, which was legally not maintainable. The courts below, therefore, did not commit any error or law or Jurisdiction in dismissing the application and the revision filed by the Petitioner as not maintainable.

In view of the aforesaid discussion, no case for interference under Article 226 of the Constitution of India is made out. The writ petition falls and is dismissed in limine.