S. Ramaprasad vs S. Aravind Kumar

B.S. Patil, J.—Appellant was the defendant in O.S. No. 8518/2003. The said suit was filed seeking recovery of money in a sum of Rs. 2,46,852/- with interest at 24% per annum. Written statement of the defendant was taken as not filed. Subsequently, he has made an application seeking permission of the Court to file written statement. Permission was granted on payment of costs. Thereafter, the matter was transferred to Court Hall No. 33 from Court Hall No. 31. According to the appellant, his counsel had informed him not to come to Court until he received a letter/communication from him; however, during February, 2007, he learnt that the suit had been decreed in favour of the plaintiff and therefore, he filed Misc. 790/2007 under Order IX Rule 13 CPC seeking to set aside the ex parte judgment and decree dated 19.01.2007 passed against him. This was resisted by the plaintiff stating that miscellaneous petition was not maintainable as the decree passed was not an ex parte decree, but was passed on merits.

The Court below accepted the contention of the plaintiff -respondent herein and has dismissed the miscellaneous petition holding that miscellaneous petition was not maintainable as the judgment and decree under challenge was not an ex parte decree. Aggrieved by the same, the present revision petition is filed.

Learned counsel for the appellant places reliance on the judgment of the Apex Court in the case of Prakash Chander Manchanda and Another Vs. Janki Manchanda, AIR 1987 SC 42 : (1986) JT 889 : (1986) 2 SCALE 844 : (1986) 4 SCC 699 : (1987) 1 SCR 288 : (1987) 1 UJ 228 and also on the judgment in the case of Ansari Sakeenabi v. Maligi Modeensab - ILR 1997 KAR 1909 to contend that even though the defendant had entered appearance by filing written statement, as he had not adduced his evidence and had remained absent when the case was taken up, the only course open for the Court below was to proceed under Order XVII Rule 2 CPC to dispose of the suit in any one of the modes provided under Order IX and therefore, miscellaneous petition filed under Order IX Rule 13 was maintainable.

On perusal of the order under challenge and the proceedings in O.S. No. 8518/2003 referred to in the impugned order, it is clear that except filing written statement, defendant - appellant herein had not taken any steps to lead evidence, though plaintiff''s evidence had been completed. When the matter was posted for the evidence of the defendant, he did not appear and at that stage, the Court has proceeded to dispose of the suit by decreeing the same. In such circumstances, as the Court below could have only acted under Order IX, petition filed under Order IX Rule 13 was maintainable.

It is useful to refer to the observations made in paragraph 6 of the judgment by the Apex Court in Prakash Chander''s case referred to supra. It reads as under:

"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. It is therefore clear that after this amendment in Order 17 Rules 2 and 3 of the Code of Civil Procedure there remains no doubt and therefore there is no possibility of any controversy. In this view of the matter it is clear that when in the present case on October 30, 1985 the case was called nobody was present for the defendant. It is also clear that till that date the plaintiff''s evidence has been recorded but no evidence for defendant was recorded. The defendant was only to begin on this date or an earlier date when the case was adjourned. It is therefore clear that up to the date i.e. October 30, 1985 when the trial court closed the case of defendant there was no evidence on record on behalf of the defendant. In this view of the matter therefore the explanation to Order 17 Rule 2 was not applicable at all. Apparently when the defendant was absent Order 17 Rule 2 only permitted the court to proceed to dispose of the matter in any one of the modes provided under Order 9."

It is, therefore, clear that the Court below has committed serious illegality in dismissing the miscellaneous petition on the ground that the same was not maintainable. Having said so, now the point that remains for consideration is whether the matter has to be remitted back to the Court below to consider the miscellaneous petition on merits.

Upon hearing the learned counsel for both parties and in view of the judgment of the Apex Court which covers the point, I find that it will unnecessarily result in further delay in adjudication of the real controversy between the parties, if the matter is remitted for enquiry on the miscellaneous petition. Therefore, in my view, ends of justice would be met, if compensatory costs are imposed against the appellant payable to the respondent and set aside the decree passed ex parte against the appellant herein with a direction to the Court below to dispose of the suit on merits within a time frame for which the learned counsel for the respondent consents.

In the result and for the foregoing, this appeal is allowed. Impugned order is set aside on payment of compensatory costs of Rs. 15,000/- by the appellant to the respondent within two weeks from today. Ex parte judgment and decree passed against the appellant is set aside. Matter is remitted to the Trial Court for trial and adjudication of the suit O.S. No. 8518/2003, expeditiously, at any rate, within a period of six months from the date of receipt of a copy of this judgment. Both parties are directed to appear before the Trial Court in O.S. No. 8518/2003 on 03.07.2015.