Patna High Court
Ramsarup Prasad And Anr. vs Central Bank Of India on 2 April, 1980
Equivalent citations: AIR1980PAT252, AIR 1980 PATNA 252, (1980) BLJ 240 1980 BLJR 389, 1980 BLJR 389
JUDGMENT
1. This is a miscellaneous appeal by the defendants. Their application in the court below for setting aside an ex parte decree filed under the provisions of Rule 13 of Order 9 of the Code of Civil Procedure (briefly called the Code) has been dismissed by the learned Additional Subordinate Judge on the ground that the same was not maintainable as such.
2. A title mortgage suit was filed by the respondent against the appellants. They had appeared in the suit and had filed a written statement. Ultimately the suit was posted for hearing on 8-4-78, However, on the said date they applied for time on the ground of illness of one of them. Time was allowed and the suit was adjourned to 15-4-78. On this day also, adjournment was prayed for on the same ground. The court below, how-
ever, rejected the time petition and then the plaintiff opened its case and started evidence, The Junior lawyer of the appellants, placed in this situation, then cross-examined the witnesses who were, of course, formal in nature. The case was then adjourned to 17-4-1978 and on this day also the appellants applied for time and it was again rejected. Some witnesses of the plaintiff were again examined on this date but the appellants did not participate at all. The suit was then adjourned to 20-4-78, for argument and after hearing argument ex parte the court below passed a decree on 28-4-78. It is in these circumstances that an application under Rule 13 of Order 9 of the Code was filed by the appellants making out a case for their absence from the suit for setting aside the decree passed therein.
3. In the rejoinder the plaintiff, inter alia, took a point that in view of the fact that on 15-4-78, its witnesses were cross-examined, the provisions of Order 9 Rule 13 were not applicable and when the case was taken up for consideration, this plea was pressed as a preliminary issue and the learned Additional Subordinate, Judge by the impugned order, has accepted the preliminary objection and has held that the provisions of Order 9, Rule 13 of the Code were not attracted in the circumstances mentioned above and, therefore, the application was not maintainable.
4. Mr. Bindeshwari Prasad Sinha, appearing in support of this appeal argues that by virtue of the provisions contained in Order 17 Rule 2 of the Code, the provisions of Order 9 did apply and, therefore, the application for setting aside the ex parte decree was quite in order and has been wrongly held to be non-maintainable. Mr. Nawal Kishore Prasad Sinha appearing on behalf of the decree-holder respondent does not dispute this proposition that the disposal of the mortgage suit by the court below was definitely within the four corners of Order 17 Rule 2 of the Code. But according to him, although Rule 2 of Order 17 refers to Order 9, merely by that reference all the provisions of Order 9 would not become applicable,
5. From the facts and circumstances stated above, it becomes clear to us that the learned Additional Subordinate Judge has committed an apparent error of law in holding that the provisions of Rule 13 of Order 9 of the Code were not attracted to the application filed by the appellants.
Rule 2 of Order 17 itself clearly states that where, on any date 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 9 or make such other order as it thinks fit. Order 9 deals with the failure of the parties to appear at the first hearing of the suit while Rule 2 of Order 17 deals with their failure to appear at any adjourned hearing, and although the provisions of Order 9 themselves do not apply to a case in which the plaintiff or defendant having already appeared has failed to appear at the adjourned hearing of the case, the said provisions have been made specifically applicable by the provisions contained in Rule 2 of Order 17. Once the provisions of Rule 2 of Order 17 make Order 9 itself applicable to the disposal of a suit then, in our opinion, it does not require much discussion to observe that all the Rules of Order 9 would be-I come applicable. Because if the power of disposal is conferred on a court then it would be very awkward for either the defaulting plaintiff or defendant not to have the remedial measures available to him as provided under Order 9 itself, This appears to be the only intention of the provisions of Order 17 Rule 2 of the Code; taking any other view would expose the defaulting party to grave injustice and serious consequences.
6. We would, accordingly, allow this appeal, set aside the order of the court below and direct it to dispose of the application of the appellants treating the same as an application under Order 9 Rule 13 of the Code on its merits and in accordance with law. In the circumstances, however, we shall make no order as to costs.