Madras High Court
Kamakshi vs Jugraj Jain on 16 September, 1992
Equivalent citations: AIR1993MAD21, AIR 1993 MADRAS 21, (1992) 2 MADLW 536 (1993) 1 CIVLJ 785, (1993) 1 CIVLJ 785
JUDGMENT
1. This appeal arises as against the order made in I.A. No. 14298 of 1989 on the file of the learned Third Assistant City Civil Judge, Madras. I.A. No. 14298/89 Was filed under Order 9, Rule 13, C.P.C. by the petitioner/defendant for selling aside the ex parte decree made in the suit. The suit is for delivery of vacant possession of suit property, namely, house and premises bearing Door No. 24, Munuswamy Achari Street, Perambur, Madras 11 to the plaintiff/respondent herein and for directing the defendant/petitioner herein to pay a sum of Rs. 12,600/-towards past mesne profits with interest at 12% P.A, from the date of the plaint till the date of realisation and also future mesne profits at the rate of Rs. 350/- per month from the date of the plaint till the date of delivery of vacant possession.
2. The respondent herein is a purcahser of the suit property in an auction held under the powers conferred upon the original mortgagee under Section 69-A of the Transfer of Property Act. The respondent, after getting the sale deed in his favour, filed the suit for possession and for other reliefs as stated above. The petitioner herein as defendant filed a written statement in the suit contending inter alia that the sale is not valid and that the respondent herein is not entitled to delivery of possession. The suit was included in the ready list for trial and the suit was posted for evidence of the plaintiff/ respondent herein to 25-9-1987. Since the petitioner's counsel was engaged in the High Court, he could be present before the trial Court to proceed with the case and the suit was taken up at 3.45 p.m. and since there was no evidence from the side of the petitioner herein, the suit was posted for judgment to 29-9-87. Accordingly, the suit was decreed on 29-9-87 by the trial Court. This application is filed to set aside the ex parte decree made on 29-9-87. The respondent herein filed a counter-affidavit in the trial Court contending as follows: The application I.A. No. 14298/89 was filed on 5-10-87 wiihin a period of 30 days from the date of ex parte decree made on 29-9-1987. But the application appears to have been registered only in the year 1989 as I.A. No. 14298/89. The suit was taken up for trial on 16-9-87 and it was adjourned to 24-9-87. According to the respondent herein, the decree made on 29-9-87 was made after contest and that it was not an ex parte decree and that the remedy open to the petitioner herein is to file a regular appeal and not to file an application like this for setting aside the decree under Order 9, Rule 13, C.P.C.
3. The trial Court has narrated the various stages of the suit in its order. The plaint was presented on 16-12-85 and the summons were sent on 13-2-86. The defendant/petitioner herein entered appearance on 17-2-86 and she filed a written statement on 12-11-86. Issues were framed on 10-12-86 and the suit was included in the speciolist on 16-9-87. The plaintiff/respondent herein was examined as P.W. 1 and the suit was adjourned to 17-9-87 and the petitioner's counsel was not present before the trial Court on 17-9-87 and so, the suit was adjourned to 18-9-87. P.W. 1 was recalled and examined in part. Then the suit was adjourned to 29-9-87 and on that date, the plaintiff/ respondent herein was examined in full. Then the suit was adjourned to 23-9-87 for the examination of the defendant/petitioner herein. On 23-9-87, the petitioner's counsel was not present in court. The lower court waited till about 5.00 p.m. and as the counsel for the petitioner did not appear, the suit was adjourned to 24-9-87 for the evidence of the petitioner herein and even on that date, counsel for the petitioner did not appear in the forenoon and so, the matter was passed over till about 3.45 p.m. and even then, counsel for the petitioner did not appear before the lower court. But the petitioner herein was present in the lower Court. But she could not proceed with the suit and so, arguments of the plaintiff were heard and the suit was posted for judgment to 29-9-87. The lower court observed that even though the evidence was closed on 24-9-87, the suit was adjourned to 29-9-87 for judgment and that the petitioner herein had not taken any steps for setting aside that order dt. 24-9-87. According to the learned counsel for the respondent the suit was decided on merits on 29-9-87 and that it was not an ex parte decree. This contention has been accepted by the lower Court and the lower Court also found that an appeal alone would lie against the decree dated 29-9-87 and that the application under Order9, Rule 13, C.P.C. is not maintainable. In this view, the lower Court dismissed the application.
4. The defendant aggrieved with the order of the trial Court has filed this Civil Miscellaneous Petition. It is also found from the records that the respondent herein filed E.P. No. 246/92 before the learned 10th Assistant City Civil Judge, Madras for delivery of possession and the same was posted to 24-4-92 for hearing. It appears that the arguments also were partly heard by the executing court in that E.P. and at this stage, the civil miscellaneous appeal has been filed and this court also granted interim stay of further proceedings for three weeks in C.M.P. No. 8010/92 and subsequently, interim stay was directed to continue further till 4-8-92.
5. Learned counsel for the petitioner contended that the decree dated 29-9-87 passed in the suit is an ex parte decree and that an application under Order 9, Rule 13, C.P.C. is maintainable. Whereas, learned counsel for the respondent submitted that P.W. 1 was examined and that the suit was posted for evidence of the defendant and as the defendant was not able to proceed with the suit further, in spite of his presence in the trial Court, a decree was passed under Order 17, Rule 3, C.P.C. Order 17 Rule 3, C.P.C. as amended reads as follows :
"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 lime 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, any of them is, absent, proceed under Rule 2."
Here, in this case, the petitioner was present; but his counsel was not present at the time when the decree was passed on 29-9-87. The procedure to be followed by the court if the party is present is, to proceed to decide the suit forthwith as found under Order 17, Rule 3, C.P.C. According to the learned counsel for the respondent, in view of the amended provisions of Order 17, Rule 3, C.P.C., the decree passed by the trial Court in the suit is not an ex parte decree.
6. Learned counsel for the respondent pointed out that the petitioner herein has filed the suit O.S. No. 1083 of 1981 in the City Civil Court, Madras against the respondent herein, the mortgagee Pani Bai and the auctioneers M/s. Murray and Co. for a declaration that the auction held on 3-2-81 in which the respondent herein became the purchaser is invalid, void and not binding on the petitioner herein and that she also claimed in the said suit that the sale is non est and for a permanent injunction not to execute the sale deed in favour of the respondent herein. According to the learned counsel for the respondent herein, the suit was dismissed with costs on 28-11-83. Learned counsel for the petitioner also submitted that an appeal has also been filed with an application for condoning the delay and that it is pending before the City Civil Court, Madras.
7. It appears from a perusal of the proceedings of the lower Court that the petitioner could not get proper legal assistance in defending the case and the petitioner being a widow, was not able to prosecute the proceedings promptly with proper legal advice. Even this application for setting aside the decree was filed on or about 5-10-87 in the trial Court. But the same was numbered only in the year 1989 as I.A. No. 14298/ 89. It took nearly about two years for numbering this application. The cause for such delay has also not been properly explained. The trial Court also has committed an error in not numbering the application immediately and posting the same for orders.
8. The question for consideration is whether the decree passed on 29-9-87 is a decree passed on merits or whether it is an ex parte decree. If the decree is passed on merits under Order 17, Rule 3, C.P.C. an appeal will lie as against that order. If the order is passed under Order 17, Rule 2, C.P.C., an application under Order 9, Rule 13, C.P.C., as it has been done in this case, could be filed. Therefore, the question for determination is whether the decree in the suit dated 29-9-87 is an ex parte decree or a decree on merits.
9. In the decision Natesa Thevar v. Vairavan Servaigaran , this court (Krishnaswami Nayudu, J.) has observed as follows :
"Where the plaintiff, though physically present in court refuses to take part in the proceedings after the dismissal of his application for adjournment, as represented by his counsel, he cannot be said to have been present there as plaintiff partaking in the proceedings. His physical presence in the court cannot be taken cognizance of, and the only conclusion that one can come to is that he did not appear at the hearing. The case, therefore, comes under R. 2 and not R. 3 of O. 17, Civil P. C. No appeal lies from the order of dismissal."
In the decision T. Suryamma v. A.P.S.E. Board , the Andhra Pradesh High Court took a view that the mere physical presence on the part of the defendant or his counsel does not make the decree as one under Order 17, Rule 3, C.P.C. if as a matter of fact the defendant did not participate in the hearing of the case. The Andhra Pradesh High Court further observed in the above case as follows :
"No doubt in the present case, the defendant's counsel did not report no instructions and was present in court when the case was heard. But what is important is as a matter of fact whether the defendant participated in the hearing of the case or not. Mere physical presence in Court does not amount to participation in the hearing when there is no actual participation as such in the hearing. Therefore, the lower Court rightly came to the conclusion that it was a decree passed only under Order 17, Rule 2, C.P.C, and not under Order 17, Rule 3, C.P.C. and therefore, it is an ex parte decree which can properly be set aside as provided under Order 9, Rule !3, C.P.C. without the need for filing a regular appeal."
In the decision Gulvir Singh v. Tara Chand , the Allahabad High Court observed as follows :
"Mere physical presence may not in certain circumstances amount to appearance for purposes of participation in the proceeding but a party cannot be allowed to dictate to the court; and if he is in a position to participate in the proceedings and deliberately refuses to do so in order to achieve his own ends, the provisions of O. 17, R. 3, C.P.C. can be attracted to the proceeding. Participation in the proceedings cannot be made subject to the choice or will of a party. If circumstances prevent him or render him incapable to participate in the proceedings, that is another matter."
There is also a reference to a decision T. Kaliappa Mudaliar v. Kumarasami Mudali reported in AIR 1926 Mad 971 (DB) where it was observed as follows :
"The appearance contemplated by the Code must be, not as a man, but as a party and with the intention of acting as a such party in that suit and therefore, the mere fact that the party was present in Court when his pleader reported no instructions, would not amount to an appearance."
10. In the instant case, the defendant was present; but her counsel was not present at the time when the case was adjourned on 24-9-87. On 24-9-87, the trial Court closed the evidence and adjourned the suit for judgment to 29-9-87 and it did not proceed to decide the suit forthwith. On 29-9-87, the lower Court delivered the judgment. The defendant, even though was physically present, was incapable of participating in the proceedings being a widow and without knowing the procedure of court. The defendant was helpless in such a situation.
11. Order XVII, Rule 2, C.P.C. before amendment of 1976 reads as follows :
"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."
Rule 3 of Order XVII, C.P.C. before 1976 amendment reads as follows :
"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, proceed to decide the suit forthwith."
Order XVII, Rule 2, C.P.C. after 1976 amendment reads as follows :
"2. Procedure if parties fail 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".
Order XVII, Rule 3, C.P.C. after 1976 amendment reads as follows :
"3. 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, any of them is, absent, proceed under Rule 2."
12. The ratio from judgments referred to by me earlier, will apply to the facts of the present case. Here, Order XVII, Rule 3, C.P.C. after 1976 amendment reads that the court may notwithstanding such default, (i) if the parties are present, proceed to decide the suit forthwith. It is argued by the learned counsel for the respondent that the defendant was present on 24-9-87. The presence of the party is that of a man; but should be like a party as observed in AIR 1926 Madras 971 supra. The defendant was helpless and could not proceed without the assistance of her advocate. In the circumstances, the order passed by the lower Court cannot be construed as an order under Order XVII, Rule 3, C.P.C. and that it could be construed as an order under Order XVII, Rule 2, C.P.C. In the circumstances, the application filed under Order IX, Rule 13, C.P.C. is maintainable. In this view, the order passed by the lower court cannot be upheld. In the circumstances, the order passed by the lower court is set aside and the civil miscellaneous appeal is allowed. In the circumstances, there is no order as to costs.
13. Appeal allowed.