Tungavva and Others vs Tarawa and Others

Puttaswamy, J.-On a reference made by Venkataswami, J; this appeal is posted before us for disposal.

On 22-7-1969, the respondents instituted OS No. 45/69 in the Court of the Civil Judge, Bijapur, for partition and separate possession of their 13/18th share in the plaint schedule properties. After several adjourn-ments the suit was posted to 24-9-1973 for trial on which day the appellants before us who are the defendants in that suit and their learned Counsel were absent. In the absence of the defendants and their learned Counsel, the learned Civil Judge on the same day recorded the evidence of one of the plaintiffs, heard their arguments and pronounced judgment on the very next day viz., 25-9-1973 decrceing the plaintiffs'' suit. In terms of that judgment, a decree has been drawn up on 28-9-1973.

On 11-10-1973, the defendants presented an application under Order 9 Rule 13 of the Civil Procedure Code for setting aside the decree-passed against them. In their application, the defendants averred that it was an exparte decree, that they had no knowledge of the date of hearing and their learned Counsel who had gone to Bangalore had not returned and there were just and sufficient grounds to set aside the same which was opposed by the plaintiffs principally on two grounds viz., (1) that the decree was not an exparte decree and therefore their application for setting aside the decree was not maintainable and (2) that there were no sufficient grounds to set aside the decree, if it was held to be an exparte decree by the Court. Accepting both the pleas of the plaintiffs, the learned Civil Judge by his order dated 6-2-1974 has dismissed the application of the defendants, the correctness of which is challenged by them in this appeal before us.

Shri K.S. Savanur, learned Counsel for the appellants, strenuously contended that the decree passed by the learned Civil Judge on 25-9-1973 was an exparte decree and therefore the application made by the defendants was maintainable and there were sufficient grounds to set aside the same and the view taken by the learned Civil Judge to the contrary was erroneous. Shri K.A. Swamy, learned Counsel for the respondents, contested both the grounds urged by Shri K.S. Savanur.

Before we proceed to examine the true scope and ambit of Rules 2 and 3 of order 17 of the Civil Procedure Code, it is necessary to record a finding as to what happened on 24th and 25th September, 1973. On 24th and 25th September, 1973 the defendants and their learned Counsel were absent and did not participate in the trial and disposal of the suit on those two dates. Even the order sheet in OS No. 45/69 reproduced hereunder bears out the same:

"24-9-1973: Taken up to-day. Shri G.H.G. for Plff. Shri R.S.B. for Defts (exparte) For evidence, PW. 1 examined. Exhibits P-1 and P-11 marked. Heard arguments. Adjourned for Judgment by 25-9-1973.

25-9-1973: Judgment pronounced decreeing the suit with costs.

Sd/- N.G. Gadag, 25-9-1973."

For reasons that are not necessary to examine at this stage, it was not a case where the defendants or their learned Counsel appeared and failed to produce their evidence or to perform any other act that was necessary for the further progress of the suit for which time had been allowed by the Court. In that view, it has to be held that the disposal of the suit was under Order 17 Rule 2 of the Civil Procedure Code and not under order 17 Rule 3. In our view, the fact that the plaintiffs appeared on 24-9-1973, that one of the plaintiffs was examined, a judgment was delivered and a decree was drawn up in accordance with the judgment does not and should not affect the nature of the decree against the defendants to hold that the disposal of the suit was under order 17 Rule 2 of the Civil Procedure Code.

We now propose to examine the true scope and ambit of Rules 2 and 3 of Order 17 unaided by the authorities, but bearing in mind only the principles that should govern their construction and interpretation. Rules 2 and 3 of order 17 prior to their amendment or after their amendment by the Civil Procedure Code Amendment Act of 1976 (Central Act 104/76) (hereinafter referred to as ''the 1978 Act'') that has come into force from 1-2-1977 are mutually exclusive and are intended to serve different purposes and different situations. Rule 2 of Order 17 of the Civil Procedure Code provides for disposal of a suit in the absence of a party which necessarily implies his agent or his Counsel in any of the modes directed in that behalf by order 9. Even the heading of Rule 2 which can undoubtedly be referred to in construing the true scope and ambit of that Rule, though the same cannot control the meaning of the words, speaks of the procedure where the parties fail to appear on the day fixed for the hearing. In the case of Rule 3, it contemplates the presence of a party which necessarily implies his agent or Counsel but fails to produce his evidence or perform any other act that is necessary for the further progress of the suit for which time had already been granted by the Court; in the case of Rule 2 the absence of the party, his agent or Counsel is complete and absolute, but in the case of Rule 3, the default is not in his appearance but the same is in the production of evidence or the performance of any other act directed by the Court for the progress of the suit. An appearance by one of the parties, recording of evidence, pronouncement of a judgment and a decree does not affect the nature of the disposal of the suit against the other party. Even the amendments introduced to Rules 2 and 3 of order 17 by the Amendment Act of 1976 fortifies our construction of the Rules. Learned Counsel for the parties have not brought to our notice any Ruling of the Supreme Court dealing with the true scope and ambit of Rules 2 and 3 of order 17 of the Civil Procedure Code. In K. Manjayya Hegde v. B. Narsu Shetty, (1965) 1 Mys. L.J.700, Santosh, J., has adopted the above construction. Even the preponderance of judicial opinion of the various High Courts in the Country leans in favour of the construction we have placed on Rules 2 and 3 of Order 17. It is not necessary to refer to all the cases of different High Courts in the Country except to refer to one of the earliest Full Bench ruling of the Madras High Court in Prativadi Bhayankaram Pichamma v. Kamisetti Sreeramulu, (1918) 2 ILR. 41 Mad. 286, a Division Bench ruling of the Kerala High Court in P. Govinda Menon v. Visalakshi Amma, AIR. 1966 Kerala 99, and the latest majority opinion of the Full Bench of the Allahabad High Court in M.S. Khalsa v. Chiranji Lal, AIR. 1976 All. 290, FB, We are in respectful agreement with the view expressed in all these cases.

In our view, on the finding recorded and on the construction placed on Rules 2 and 3 of order 17, it has to be held that the decree against the defendants was an exparte decree, the application made by them under order 9 Rule 13 was maintainable and the view taken by the learned Civil Judge to the contrary is erroneous. It is now necessary to examine whether the reliance placed by the, learned Civil Judge on the ruling of Hegde, J: in Siddappa Shivalingappa Doddamani v. B.B. Shinde, (1963) 1 Mys. L.J. 544, to hold to the contrary is correct. Small Cause Suit No. 380 of 1954 on the file of the Civil Judge, Senior Division, Belgaum, out of which Siddappa''s case arose before this Court after several adjournments was posted to 14-10-1955 for trial. On that day, learned Counsel for the defendant who was present when the case was called for hearing, sought for time and when it was refused he reported ''no instructions''. Without granting any further time, the learned Civil Judge proceeded with the trial of the plaintiffs'' suit and granted a decree. An application made by the defendent for setting aside the decree was dismissed which was challenged by him in a revision petition before this Court. On those facts. Hedge J, held that the disposal of the suit was not under order 17 Rule 2, but was under Order 17 Rule 3 and therefore an application for setting aside the decree under Order 9 Rule 13 was not maintainable. It was not a case where the defendant, his agent or Counsel were absent as in the present case, but was a case where the Counsel for the defendant appeared and did not participate in the trial of the suit. It is on these facts Hegde J, based his decision. In our view, similar was the position in L. Mahadeva v. A.K. Anantha Krishna, (1971) 1 Mys. L.J. 238, on which reliance was placed by Shri K.A. Swamy, learned Counsel for the Respts. In our view the ratio in Siddappa''s case and in Mahadev''s case is clearly distinguishable and had no application to the case.

On this occasion, we deem it proper to point out that in Head note 1 of the report in Siddappa''s case, (1963) 1 Mys. L.J. 544, which itself is based on the last sentence in para 2 of the order in Siddappa''s case the word ''not'' used by Hegde J, with all respect to the eminent Judge does not properly fit in there and appears to have been used by an inadvertent error. In our considered opinion, reading of the order as a whole and in the context Hegde J, therein really intended to say the party or parties should have appeared in the Court on the date to which the case was posted instead of using "the party or parties should not have appeared in Court on the date to which the case was posted." Before embarking on these observations, we have also perused the original autograph of the order of Hegde J, in Siddappa''s case in which also the same expression has been used.

What now remains to be considered is whether there was sufficient cause for the absence of the defendants and their Counsel on 24-9-1973. In examining this question, the learned Civil Judge has adverted to absence of the defendants and their Counsel on the earlier hearing dates which were not relevant. In our view, the grounds and circumstances set out by the defendants and their Counsel for their absence were just and sufficient and in that view they were entitled for setting aside the exparte decree passed against them, restoration of OS No. 45 of 1969 and its disposal on merits. We, therefore, hold that the judgment of the learned Civil Judge on both the grounds is erroenous and is liable to be reversed. We therefore reverse the judgment of the learned Civil Judge allow the appeal, direct the restoration of OS No. 45 of 1969 to file and its disposal on merits on the terms and conditions stipulated hereunder:

(1) that the appellants do pay a sum of Rs. 100/- to the respondents on or before 6-3-1978 as costs of their application for restoration which Shall not be costs of the cause;

(2) that the parties shall appear on 6-3-1978 before the learned Civil Judge on which day he shall give further directions for the trial of the suit and proceed with its trial from day to day, unless prevented by unforeseen compelling circumstances and complete its disposal on or before 22-4-1978.

A perusal of the order sheet discloses the slow and tardy progress of the suit before the learned Civil Judge from 22-7-1969. When that was so, we are distressed to observe that on 24-9-1973 and 25-9-1973 the learned Civil Judge made a very short and slippery trip of the case and decreed the plaintiffs'' suit. We have no doubt that the short trips were made by the learned Civil Judge with an eye on the closing of month that was fast approaching and gain a dubious disposal of the suit on merits or a decision after contest and include the same in the monthly return to be furnished to this Court. We deprecate such short trips and dubious disposal of suits by the subordinate Courts which only results in grave failure of justice to all the parties and ultimately add to the long pendency of the cases in Courts. We should not be understood as lying down that subordinate Courts should grant adjournments for the mere asking and decide cases only on merits. It is well to remember that the saying justice delayed is justice denied and justice hurried is justice buried are equally true and the Courts should endeavour to avoid both the extremes. With these observations, we close this case with the hope that there will be no such recurrence by any subordinate Court.

In the circumstances of the case, we direct the parties to bear their own costs.

Let a copy of the judgment be communicated to the Civil Judge Bijapur, within 3 days from this day.