Madras High Court
P. Ganesan vs Uco Bank Rep. By Its Branch Manager, ... on 20 March, 1998
Equivalent citations: [1999]98COMPCAS370(MAD), 1998(2)CTC290
ORDER
1. Respondent in both these revisions, viz., United Commercial Bank, filed two suits, namely, O.S. Nos.84 of 1995 and 66 of 1996, on the file of District Munsif's Court, Rasipuram, against the petitioner herein.
2. Petitioner herein filed his written statement and the suits came for trial. The Manager of the Bank (Plaintiff) was present. But he was not in a position to proceed with the trial. In both the suits, the trial Court delivered judgment after stating thus:-
"This case is posted today for trial as NFA. At the time of calling, the plaintiff viz., UCO Bank represented by its Manager Mr. V. Krishnan was present but he refused to give evidence.
It seems that he is not willing to conduct his case. Hence it is unnecessary to keep the case bundle for a long time as a pending case. Accordingly, this suit is dismissed for non-prosecution of the case. Cost Rs.1,000".
3. Against that judgment, two appeals were filed as Appeal Nos.124 and 125 of 1996, on the file of Sub Court, Namakkal.
4. Before the lower appellate Court, the question of maintainability of the appeals was argued by the petitioner herein. It was contended before the lower appellate Court that since the suits were dismissed for default, no appeal will lie and the remedy of the plaintiff (respondent) was only to file an application under Order 9, Rule 9, CPC. The lower appellate Court rejected the contention, and the appeals were allowed, and the suits were remanded.
5. The jurisdiction of the lower appellate Court in entertaining the appeals is challenged in these revisions under Article 227 of the Constitution of India.
6. When the matter came for admission, I ordered notice of motion and interim stay was also granted. After receipt of notice, respondent also entered appearance, and both the parties were heard in detail.
7. The only question that requires consideration is, whether the lower appellate Court was right in entertaining the appeals.
8. Section 2(2), CPC defines a 'decree' thus:-
"'Decree' means the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144 but shall not include:-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default......."
Section 96, CPC provides for appeals only from decrees. It is under Section 96, CPC, right to prefer appeal is provided. The procedure is under Or.41, CPC. So the substantive right to prefer an appeal is only under Section 96, CPC and that must be from a decree. Under section 2(2), CPC dismissal for default is not a decree.
9. Learned counsel for respondent relied on Order 17, Rule 3, CPC. It says that witness for plaintiff may be present. It says that witness for plaintiff may be present. But if he is not in a position to perform a thing that is necessary for the progress of the suit, the Court is entitled to decide the case forthwith. In the case on hand, plaintiff's witness was present. But he was not prepared to proceed with the case. The Court also decided the case simultaneously. It was, therefore, argued that the dismissal is on merits, and consequently an appeal lies. It was also contended that for dismissal for default, there should not be any appearance of the party, and in this case, the witness was physically present before Court. So, when the witness has physically appeared before Court, the provisions of Order 9, CPC have no application. Learned counsel submitted that Order 9, CPC deals with appearance of parties and the consequence of non- appearance of parties. Only in cases where the parties have not appeared, the consequence under Order 9, CPC will follow and he also laid emphasis on the provisions of Order 17, Rule 3 (b), CPC which says that 'if the parties or any of them is absent, proceed under Rule 2'. The further argument of learned counsel for petitioner is that under Or. 17 Rule 2, CPC the court is entitled to dismiss a suit for default only if the party is absent. Sub-rule (b) Rule 3, CPC cannot apply. The decision can only be on merits and, therefore, appeal is maintainable. I do not think that the contention of learned counsel for respondent could be accepted.
10. What is meant by 'appearance' under Or.9 and under Or.17, CPC has come up for consideration in many cases.
11. In one of the very early decisions of our High Court reported in Kaliappa v. Kumarasami, AIR 1926 Mad. 971 at 973 the learned Judges of the Division Bench have said thus:-
"The real question for determination at issue is whether the appearance mentioned in Order 3, Rule 1 is merely a physical appearance, or whether it must be an appearance with the intention of pleading in a suit. It is argued for respondents that mere physical appearance is sufficient, but if this is so it would be an appearance if a party happened to be anywhere on the Court precincts with or without the knowledge of the Court. It is therefore rather difficult to accept the argument that mere personal appearance is sufficient. It is clearly, we think, intended that the appearance must be, not as a man, but as a party and with the intention of acting as such party in that suit. If this is correct, then the mere fact that the party was present in Court when his pleader reported no instructions would not amount to an appearance for he is merely there as the person who was represented by his pleader. The pleader acted on his behalf and when he ceased to do so, the party took no further part in the proceedings. The mere fact that he was in Court cannot make it an appearance in the suit. ..."(Italics Supplied)
12. In, Kuruvilla Chandy v. Hassan Bava Rawther, 1969 K.L.T. 402, in para 3, V.R. Krishna Iyer, J. (as he then was), has held thus:-
"Non-appearance at the hearing of the suit is a sine qua non for the applicability of Order 17, Rule 2. Mere physical presence in Court cannot be taken cognisance of and in effect that is non-appearance at the hearing. If that is so, it would be a case coming under Rule 2 of Order 17. A pleading asking for adjournment and declining to proceed with the case on refusal of adjournment cannot be said to have appeared for the plaintiff. It is not the presentation of the person but the presentation of the case that constitutes effective appearance. ..."(Italics supplied)
13. In Manibala Dassi v. Tamizuddin Saha and another, , a learned Judge of that High Court went to the extent of saying that if a party has engaged a Counsel, the appearance must be by the party with the Counsel. In that case, it was held thus:-
"Where a party is not able to conduct his suit because his lawyers were not ready for the hearing after refusal of adjournment to them by the court, it is a sufficient cause for non-appearance within the meaning of Order 9, Rule 6, CPC.
"It is not a case of a party pleading the negligence of a lawyer as an excuse for her own default but the case of a party who has suffered because of the refusal of the lawyer or lawyers to conduct the case.
When a petition for adjournment by a lawyer is rejected and he retires from the case, the mere physical presence of the party in the precincts of the Court does not constitute an appearance within the meaning of Order 9 Rules 6 and 8. The word appearance under Order 9 has a technical meaning and does not mean more physical presence. When a party does not want to conduct his case in person but engages a lawyer, the appearance of such party must be an appearance through that lawyer when the suit in question is called on for hearing."
14. In Allah Bux v. Budha, AIR 1939 All. 451, it was a case where an appeal was dismissed for default. Appellant was present in Court. The question was, whether the dismissal was one for default or on merits. It was held thus:-
" Appearance in the legal sense does not mean mere physical presence within a certain local area or a room or anything of that kind. It means that a party or somebody on his behalf either expressly in words or by his conduct demands an adjudication from the Court. It is possible that a party to a suit or other proceeding might physically be present in a Court and might not make his presence known to it. In these circumstances, there is no appearance in the legal sense of the term."
15. In Damodar Das v. Raj Kumar Das, AIR 1922 Pat. 485 a Division Bench of that High Court has held thus:-
"The mere presence of a party in court unless he is there for the purpose of conducting his case, is not an appearance within the meaning of CPC; nor does the presence of his pleader who has been instructed to represent him on previous occasions constitute an appearance, unless he is instructed to represent him on the occasion in question and attends for that purpose. Where defendant's pleader who was present took no part in the trial except to ask for an adjournment, which was refused, and the defendant, although present in court also took no part in the trial, and the court, after hearing evidence and arguments on plaintiff's behalf, decreed the suit, held the decree being ex parte was liable to be set aside under Order 9 Rule 13 for sufficient cause."
16. From the above settled legal position, it is clear that even though the manager of the plaintiff-Bank was present, his physical presence alone will not be sufficient. His appearance must be for the purpose of making a further progress of the suit. The Manager was not prepared to get along with the case. Though the Bank had engaged a Counsel, he was also not present. Under the above circumstances, it cannot be said that there was appearance as contended by first respondent's Counsel.
17. The argument of the respondent that under Order 17 Rule 13 CPC, the trial court was justified in passing the decree and, therefore, an appeal is maintainable also cannot be accepted.
18. In Mulla on 'Code of Civil Procedure' - 15th Edition 1996, commenting on Order 17, Rule 3, CPC, the learned Author has said thus:-
"The provisions of this rule do not apply unless:- (1) the hearing is adjourned on the application of a party to the suit, as distinguished from an adjournment by the Court of its own motion; (2) the hearing is adjourned on the application of the party who subsequently makes the default; (3) the adjournment is granted to enable the party 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; and (4) the party fails to perform any of the acts for which the adjournment was granted within the time allowed by the Court." (Underscroed portion is in Italics in the Texbook).
The said provision may not have any application to the facts of this case since the suits were in the list, and the posting for trial was not on the basis of any adjournment requested by the plaintiff. The Court itself has posted the case for trial without any request. So Order 17, Rule 3, CPC may not have any application to the case on hand.
19. Order 17 Rules 2 and 3, CPC was amended under Act 104 of 1976. After the Amendment, the said Rules came for interpretation by the Supreme Court in, Prakash Chander Manchanda v. Janki Manchanda, . After extracting Rules 2 and 3 of Order 17, CPC. Their Lordships held that, "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. ..."(Italics) I have already held that it is not the physical presence of the party that is essential, but his appearance must be for the further progress to the suit. If this is the interpretation for appearance, naturally he must be treated as absent. If that be so, the only course open to the Court is to dismiss the case for default. The Honourable Supreme Court has held thus:-
"...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 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 remains absent and for that party no evidence has been examined upto 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 plaintiffs 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 upto 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 also clear that Order 17, Rule 3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of defendant was closed nobody appeared for the defendant. In this view of the matter it could not be disputed that the court when proceeded to dispose of the suit on merits had committed an error. Unfortunately even on the review application, the learned trial court went on in the controversy about Order 17, Rules 2 and 3 which existed before the amendment and rejected the review application and on appeal, the High Court also unfortunately dismissed the appeal in litnine by one word".
In the case on hand, the trial court has noted that though the plaintiff-Bank's Manager was present, he refused to proceed with the trial. Therefore, the trial court was very conscious in holding that the suit is hereby dismissed for non-prosecution of the case. It may be further seen that no part of the evidence was taken and there is no adjudication of rights of parties as per the definition of the term 'decree'.
20. In Puthuvachola Muhammed v. Narayanikutty Amma and others, 1991 (3) ILR (Kerala Series) 593 it has been held thus:-
"A dismissal of the suit for default bars the plaintiff from bringing a fresh suit on the same cause of action. Rule 8 provides for passing only an order that the suit be dismissed and not a decree of dismissal. The remedy of a plaintiff whose suit has been dismissed for default is only by way of an application under Rule 9 of Order 9 to get dismissal set aside. The order of dismissal is not appealable. The fact that the court below has drawn up a decree in accordance with the judgment in no reason to hold that what has been passed by the court is a decree and not an order. Section 96 of the Code contemplates an appeal from an original decree passed ex parte but not from an order of dismissal of the suit for default. That order is not made applicable either under section 104 or under Order XLIII, Rule 1, CPC. Any order of dismissal for default is excluded from the definition of decree in section 2(2) of the Code. The result is that no appeal lies against an order dismissing the suit for default".
There is no common law right of appeal unless the Statute provides for it. From a suit which is dismissed for default, there is no right of appeal and, therefore, the Court below acted illegally in entertaining the appeals and further remanding the case to the trial Court. The lower appellate Court acted without jurisdiction. Consequently, I hold that the lower Appellate Court ought not to have entertained the appeals referred to above. The judgment rendered by it as those appeals is also a nullity, and the same is set aside. The revision petitions are allowed, however, without any order as to costs. All the connected CMPs. are closed.