Karnataka High Court
B Srinivas vs B S Hegde on 27 September, 2018
Author: S.G.Pandit
Bench: S.G. Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27th DAY OF SEPTEMBER, 2018
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
CIVIL REVISION PETITION No. 566/2015
Between:
B. Srinivas,
S/o. B. Byrappa,
Age: 48 years,
No.70/A, 1st Main Road,
Jayalaxmipuram,
Mysuru-570 001. ...Petitioner
(By Sri. H.C.Shivaramu, Advocate)
And:
1. B.S.Hegde,
S/o. Shivaram Hegde,
Age: 68 years,
Flat No.705A-4,
Thungabhadra Block,
National Games Complex,
Koramangala,
Bengaluru-560047.
2. The Chief Manager,
Vijaya Bank, No.41/2,
MG Road, Trinity Circle,
Bengaluru-560001.
2
3. Ravindranath Pai,
S/o Not known to the petitioner,
Age: Major,
No.4503, C & D Block,
Kuvempunagara,
Mysuru-570001. ... Respondents
(By Sri S.Shaker Shetty, Advocate for Caveator for R1)
This Civil Revision Petition is filed under
Section 115 of CPC against the order dated: 03.09.2015
passed in Misc.No.125/2011 on the file of the
III Additional Senior Civil Judge & CJM, Mysuru
allowing the Miscellaneous Petition filed under Order IX
Rule 13 of CPC.
This Civil Revision Petition coming on for Hearing
this day, the Court made the following:
ORDER
The petitioner is before this Court assailing the order dated 03.09.2015 passed in Misc.No.125/2011 on the file of III Additional Senior Civil Judge & CJM, Mysuru.
2. Petitioner herein is the plaintiff and the respondents are defendants in O.S.No.681/2005, which is filed for specific performance of the agreement. On 3 issuance of notice, defendant No.1 appeared and filed his written statement and also additional written statement. The plaintiff examined himself as PW-1 and also examined PW-2 on his behalf. The defendant No.1 failed to participate subsequent to filing of written statement and adduce his evidence in the suit.
3. The trial Court proceeded on the basis of the material available on record and passed the judgment and decree in favour of the petitioner-plaintiff on 24.05.2011 in O.S.No.681/2005. Against the said judgment and decree, respondent No-1 herein filed Misc. Petition No.125/2011 under Order IX Rule 13 of CPC, to set aside the ex parte judgment and decree, which came to be dismissed as not maintainable before the said Court. Respondent No.1 herein filed MFA.No.1381/2013 before this Court. This Court set aside the order of the trial Court dismissing the Misc. Petition as not maintainable and remitted the 4 matter to the proper Court, which allowed the Misc. Petition No.125/2011 on 03.09.2015. Respondent No.1 herein who was the petitioner in the Misc. Petition No.125/2011 examined himself as PW-1 and got marked Exs.P-1 to P-14. On behalf of the petitioner herein none was examined as witness and no document was exhibited. The trial Court, on consideration of the material on record both oral and documentary, by its order dated 03.09.2015, allowed Misc. Petition No.125/2011 to restore O.S.No.681/2005 to its original file. The said order is impugned in this Civil Revision Petition.
4. Heard learned counsel for the petitioner at length and also learned counsel for the respondents and perused the Revision Petition papers along with lower Court records.
5. Learned counsel for the petitioner submits that the Misc. Petition No.125/2011 filed under Order 5 IX Rule 13 of CPC is not maintainable as the judgment and decree passed in the proceedings is not an ex parte decree. Further, he submits that the trial Court exceeded its jurisdiction in allowing the Misc. Petition, even though there were no reasons much less acceptable reasons to allow the Misc. Petition. He also invites my attention to Order IX Rule 13 of CPC and also Order XVII Rules 2 and 3 in support of his contention. Further, it is submitted that the trial Court has failed to give proper reasons while rejecting the contention of the petitioner. Learned counsel for the petitioner relied upon several decision in support of his contention and one of the decision is in the case of B.JANKIRAMIAH CHETTY V. A.K.PARTHASARTHY & OTHERS reported in (2003) 5 SCC 641 to contend that the trial court ought to have treated the case under Order XVII Rule 3 and rejected the Misc. Petition. It is his further submission that the respondents-defendants appeared before the Court in O.S.No.681/2005 and 6 their advocate filed written statement and also additional written statement in the suit. Further, the plaintiff was cross-examined by the learned counsel for the defendants and sought time for the defendants evidence. Therefore, it is not an ex parte decree.
6. Per contra, learned counsel for the respondents and petitioner in Misc. Petition No.125/2011 submits that the trial Court has rightly allowed the Misc. Petition filed under Order IX Rule 13 of CPC. It is his submission that the defendants subsequent to filing of written statement have not appeared before the Court and no evidence is recorded either in part or in full on behalf of the defendants. Therefore, the case of the respondents fall under Order XVII Rule 2 of CPC and the Court had no option but to proceed under Order IX Rule 13 of CPC. The learned counsel for the respondents relies upon the decisions in 7 the case of B.JANKIRAMIAH CHETTY V. A.K.PARTHASARTHY & OTHERS reported in (2003) 5 SCC 641, SMT. ANSARI SAKEENABI V. MALIGI MOIDEENSAB AND OTHERS reported in AIR 1997 KAR 339 and BROOKE BOND & CO. LTD (NOW KNOWN AS BROOKE BOND LEIBIG LTD) V. CIT, WESTBENGAL-II CALCUTTA reported in (1986) 4 SCC 689 to contend that it is an ex parte decree and the Court has rightly proceeded to pass orders on the application filed under Order IX Rule 13 of CPC. Further, it is the submission of learned counsel for the respondents that respondent No.1 examined himself as PW-1 in Misc. Petition and marked Exs.P-1 to P-14 to show his bonafides as to why he could not be present before the Court in O.S.No.681/2005, subsequent to filing of written statement. Moreover, learned counsel for the respondents submit that the suit was posted to 02.02.2011 for defendants evidence. Since the defendant's sister's daughter Smt. Devaki was 8 hospitalized in Manipal hospital, Udupi on 19.03.2010 due to paralysis and respondent No.1 was taking care of her, therefore, he could not appear before the Court.
7. Further, he submits that Smt Sarojini Sharath Shetty is the daughter of elder sister of respondent No.1 who was admitted in Lifeline hospital on 24.01.2011 and was discharged on 27.01.2011 and due to the said reason, he could not be present before the Court, when the suit was posted for defendants evidence. None appeared from the defendants side on 02.02.2011 and on subsequent days which was un- intentional and was bonafide. Therefore, he request to dismiss the revision petition.
8. Heard the learned counsel for both the parties and also perused the records. The short question which arises for consideration in this petition is as to whether the trial Court was right in allowing the Misc. Petition filed under Order IX Rule 13 of CPC. 9
9. This petition is filed under Section 115 of CPC. The jurisdiction under Section 115 of CPC is very limited. Keeping in mind the limitation under Section 115 of CPC, I proceed to examine the petition. The petitioner filed O.S.No.681/2005 for specific performance of agreement. No doubt, the petitioner herein, who was defendant No.1 in the said suit appeared before the Court through his Advocate and filed written statement as well as additional written statement. Thereafter, plaintiff examined himself as PW-1 on 23.07.2010 and for further examination of PW-1, the matter stood posted to 11.08.2010. On 26.08.2010, PW-1 was further examined and documents were marked. Thereafter, the suit stood posted for cross-examination of PW-1 to 27.09.2010. On 27.09.2010, none represented defendant No.1, cross- examination on PW-1 was taken as nil and the matter was posted for further evidence of plaintiff. PW-2 was also examined on behalf of plaintiff on 26.11.2010 and 10 advocate for the defendant No.1 on 15.12.2010 prayed time to cross-examine PW-2. PW-2 was examined by learned counsel for the petitioner on 19.01.2011. Thereafter, the matter stood posted for defendants' evidence. But on 27.01.2011 and 02.02.2011, defendant No.1 was absent and on behalf of defendant No.1, learned counsel for the defendant No.1 prayed time, which was refused and posted the matter for arguments to 10.02.2011, and argument of plaintiff was heard on 23.02.2011 and judgment was pronounced on 24.05.2011. It is clear from the records that on behalf of plaintiff, PW-1 and PW-2 were examined. In support of his case, documents were marked but defendant No.1 failed to appear before the Court and lead his evidence. Order IX Rule 13 of CPC reads as follows:
"Setting aside decree ex parte against defendants.-In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any 11 sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.] [Explanation.-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.]"
Further Order XVII Rule 2 and 3 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.12
[Explanation.-Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.]
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, or any of them is, absent, proceed under rule 2.]"
10. The above provision makes it clear, that on the date of hearing if any of the parties to the suit fail to appear, the Court may proceed to dispose of the suit in one of the modes directed under Order IX or make such other order as it thinks fit. Where the evidence or a substantial portion of the evidence of any party is recorded and if such party fails to appear on any day to which hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if party was 13 present. In the case on hand, the plaintiff has adduced his evidence. Neither evidence of the defendant No.1 is recorded nor defendant No.1 has submitted himself for cross-examination before the Court. Therefore, the Court has rightly proceeded to treat the case as one coming under Order XVII Rule 2 of CPC. The Hon'ble Supreme Court in the case of B.JANKIRAMIAH CHETTY V. A.K.PARTHASARTHY & OTHERS reported in 2003 5 SCC 641 at paras 8 and 9 has held as follows:
"8. The explanation permits the Court in its discretion to proceed with a case where substantial portion of evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned. As the provision itself shows, discretionary power given to the Court is to be exercised in a given circumstance. For application of the provision, the Court has to satisfy itself that: (a) substantial portion of the evidence of any party has been already recorded; (b) such party has failed to appear on any day; and (c) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the Court to adopt any of the modes provided in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The Explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the 14 Court to act under the specified circumstance i.e., where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the Court may in its discretion deem as if such party was present. Under Order 9 Rule 3 the Court may make an order directing that the suit be dismissed when neither party appears when the suit is called on for hearing. There are other provisions for dismissal of the suit contained in Rules 2, 6 and
8. We are primarily concerned with a situation covered by Rule 6. The crucial words in the Explanation are "proceed with the case''. Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the Court or not.
9. In Rule 2, the expression used is "make such order as it thinks fit", as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to the Court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the Court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the Court has no option but to proceed as provided in Rule
2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the Court to decide the suit forthwith. The basic 15 distinction between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the Court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present."
11. Explanation to Rule 2 of Order XVII of CPC makes it clear that where the evidence or substantial part of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the court may, in its discretion, proceed with the case as if such party were present. In the present case, as defendant No.1 has not adduced his evidence or led his evidence, the case falls under Order XVII Rule 2 of CPC and it is an ex parte decree. But the case would not fall under Rule 3 of Order XVII as contended by the counsel for the petitioner. This Court in the case of SMT. ANSARI 16 SAKEENABI V. MALIGI MOIDEENSAB AND OTHERS reported in A1R 1997 KAR 339 at para 8 held as follows:
"8. No doubt, the plaintiff's suit was contested by defendant at its earlier stages and till the plaintiff's evidence was recorded, but he failed to appear on the subsequent dates of hearing and remained absent, of course for valid reason, when the suit was set down for his evidence. Then the suit was decided by the trial Court on the basis of plaintiff's evidence only. It is not the case that defendant remained absent in the suit after any portion of his evidence was recorded in which event alone the trial Court could have disposed of the suit treating him as present as envisaged by Explanation to Rule 2 of Order 17, C.P.C. Read in the context of this Explanation, sub-clause (b) of Rule 3 of Order 17, C.P.C. makes the legal position clear that when a party to the suit remains absent without leading any evidence, the trial Court is enjoined by Rule 2, Order 17 to proceed to dispose of the suit in one of the modes stipulated in Order 9, C.P.C. As a necessary legal corollary it follows that any decree passed by the trial Court disposing of the suit on the basis of plaintiff's evidence only due to non-appearance of contesting defendant at subsequent stages in the suit and on his failure to lead his evidence, is an ex parte decree against him and not a decree on merits. In view of this emerging legal position the decree in the instant case has to be treated as an ex parte decree and not as decree passed on merits. Therefore, the application under Order 9, Rule 13, C.P.C. made by the petitioner before the trial Court in Mis. Case No.4/89 seeking to set aside the decree in question was maintainable in law; and the trial Court as well as the lower appellate Court have 17 clearly erred in taking the contrary view and passing the impugned orders dismissing the said application. As such, the revision is entitled to succeed."
12. On going through the principles laid down in the above decision, I am of the view, that the case of the respondent-defendant falls under Order XVII Rule 2 of CPC and exercise of power under Order IX Rule 13 of CPC is in accordance with law.
13. Learned counsel for the petitioner further contended that no reasons have been assigned by defendant No.1, to enable the Court to accept and to set aside the ex parte decree. As noted above, the suit was posted for defendant's evidence on 27.01.2011 and 02.02.2011. It is on record that the daughter of elder sister of the respondent No.1 who was hospitalized was discharged from the hospital only on 27.01.2011. It is also the case of respondent No.1 that there was no communication between his advocate and respondent No.1, during that period and as such, he could not be 18 present before the Court. In support of his contention respondent No.1 has produced discharge summary, Hospital bills and Medical Report to show that his sister's daughter Smt. Devaki and Smt. Sarojini Sharath Shetty were hospitalized which prevented him from appearing before the Court.
15. Looking into the entire facts and circumstances of the case, I am of the view that there is no error of jurisdiction or illegality in the impugned order which warrants interference under Section 115 of CPC.
Accordingly, Civil Revision Petition is rejected.
Sd/-
JUDGE DS/KTY