Madras High Court
S. Sundaram Pillai And Anr. vs S. Kannan And Anr. on 9 September, 1996
Equivalent citations: 1996(2)CTC388, (1996)IIMLJ609
ORDER Jagadeesan, J.
1. By consent of both the counsel, the civil revision petition itself is taken up for final disposal. The respondents herein filed the suit O.S.899 of 85 on the file of the District Munsif Court,Salem for specific performance of the suit agreement. The said suit was decreed ex parte on 19.7.90. On 27.7.90 the petitioners filed I.A. 1065 of 90 for setting aside the ex parte decree stating that the Advocate did not inform the hearing date and hence they could not attend the court on that date. The said application was opposed by the respondents by just denying the averments made in the affidavit and further contended that Order 9, Rule 13 has no application, since the suit has been decreed on merits.
2. The trial court by its order dated 6.3.92 dismissed the said application, without considering the reason given by the petitioners for their absence on the hearing date. The petitioners herein filed an appeal in C.M.A.9 of 1992 on the file of Principal Subordinate Judge, Salem. The Principal Subordinate Judge, Salem dismissed the appeal, against which the present revision has been filed.
3. The counsel for the petitioners contended that both courts have found that the order passed by the trial court on 19.7.90 is not an ex parte order; but one under Order 17, Rule 3 C.P.C and hence the application filed under Order 9, Rule 13 is not maintainable. The same cannot be sustained, since the order passed is only an ex parte decree. On the hearing date, the defendants did not appear and hence it is only an ex parte decree. Further the trial court did not consider the reason given by the petitioners for their absence. The lower appellate court has taken into consideration the previous conduct of the petitioners and observed that the petitioners did not produce the letter sent by their counsel informing them the date of the hearing and hence their explanation cannot be accepted. The lower appellate court has also taken into consideration the evidence of P.W,1, wherein she has admitted in her evidence that she was present when the plaintiff was examined in chief. But, however, no cross-examination was done on that date. On this basis, the lower appellate court has come to the conclusion that the first petitioner was present on the date of the ex parte decree. The respondent had deposed only under mistaken impression and that isolated sentences cannot be taken for consideration. The evidence as a whole should be taken for consideration.
4. On the contrary, the counsel for the respondents contended that both the courts have found that the order passed is only under Order 17, Rule 3, C.P.C and as such it is open to the petitioners to file an appeal instead of agitating the matter further. When the first petitioner has admitted in her evidence that she was present in the court when P.W.I was examined and she does not know the reason for non-cross examination by her advocate, the order has to be construed as one passed under Order 17, Rule 3, C.P.C. Since there is contradiction in the averment made in the affidavit and in the deposition, the evidence of the petitioner has to be totally rejected.
5. I carefully considered the contention of both the counsel. This is rather an unfortunate case that the suit of the year 1985 had been decreed ex parte on 19.7.90. The application filed for setting aside the ex parte decree on 27.7.90 was dismissed and the appeal against the said order was also dismissed on technical ground making the matter pending till date. The petitioner, in the affidavit filed in support of the application I.A. No. 1065 of 90 for setting aside the x parte decree categorically stated that she was not present for the two hearings under the impression that she will be informed about the hearing date by her counsel and since she has not received any communication she could not be present on the date of the ex parte order. She received a letter from their counsel and only then they came to know about the ex parte decree. In the counter the respondents herein had stated that the petitioners ought to have been vigilant in knowing the hearing date and they denied the averment that the petitioners came to know of the ex parte decree only after they received the letter from their advocate. Since their absence on 19.7.90 had not been explained, their absence is not bonafide one. The petitioners ought to have been present on the date of hearing. The trial court mainly dismissed the petition on the ground that the suit has been disposed of under Order 17, Rule 3, C.P.C and hence the application for setting aside the ex parte decree is not maintainable. The lower appellate court also concurred with the said finding and further on merits found that the explanation given by the petitioners for their absence cannot be accepted. The lower appellate court further took into consideration of the admission made by the petitioner in their evidence that she was present on the date of the ex parte decree and the plaintiff was not cross examined and she does not know the reason for not cross examining the plaintiff and this admission belie her statement made in the affidavit.
6. The main question for consideration is whether the petition filed under Order 9, Rule 13, C.P.C is maintainable? Whether the lower appellate court is correct in taking into consideration the so called admission made by the petitioner in her evidence?
7. Both the courts below have held that the application under Order 9, Rule 13 is not maintainable on the ground that the suit has been disposed of under Order 17, Rule 3, C.P.C. Order 17,Rule 3 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 witness, 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."
A reading of the above provision makes it clear that when a party was given sufficient time to produce his evidence or to produce his witness or to perform any other act necessary to the further progress of the suit and if the party fails to do so the court can proceed to decide the suit forthwith if the parties are present. In case if the parties or any one of the them are absent, the suit can be proceeded under Rule 2 of Order 17, C.P.C. Order 17, Rule 2 read 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 9 or make such other order as it thinks fit.
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."
This Rule prescribes that on the date of adjourned hearing, the parties or any of them foiled to appear, the court can dispose of the suit by any one of the modes provided on that behalf by Order 9, C.P.C. Explanation to this Rule envisages that if a substantial portion of the evidence of any one of the parties has already been recorded and such party foils to appear on the adjourned date of hearing, the court has discretion to proceed with the case as if the parties were present.
8. In this suit, 'B' diary reveals that on 14.2.86 the issues were framed and the trial was posted to 12.6.86. From that date, it has been adjourned and no trial had been commenced. On 19.4.90 the endorsement is to the effect 'trial adjourned to 12.7.90 in the list'. On 12.7.90, the defendant was called absent and set ex parte. P.W.I was examined. Ex.Al to A4 were marked. Thereafter the judgment was pronounced on 19.7.90. From the above endorsement, it is clear that the suit was taken up for trial only on 12.7.90 on which date the defendants were absent and they were set ex parte and P.W.I was examined. In cases if the party is absent on the date of hearing, Order 17, Rule 3(b), C.P.C prescribes that the suit to be proceeded under Order 17, Rule 2, C.P.C which Rule directs the court to dispose of the suit in any one of the modes directed under Order 9, C.P.C. Order 9, Rule 6(l),C.P.C is as follows:
"6 Procedure when only plaintiff appears, - (l)Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then -
When summons duly served. - (a) If it is proved that the summons was duly served, the court may make an order that the suit be heard ex parte."
The Rule prescribes that if the defendant is absent, the court can make an order the suit be heard ex parte. Here the defendant was set ex parte and P.W.I was examined and ExsAl to A4 were marked in the absence of the defendants. Hence both the lower courts have committed an error in finding that the suit had been disposed of under Order 17, Rule 3 C.P.C and as such the application for setting aside the ex parte decree is not maintainable. It is the admitted case that on the date of hearing the defendant was absent and they were set ex parte and the ex parte evidence was taken. The suit was decreed ex parte. I am of the opinion that the order of the courts below cannot be sustain and it has to be held that the application filed under Order 9, Rule 13, C.P.C is maintainable. Order 17, Rule 3 will be applicable only if time was granted to the party to produce his/her evidence or to cause attendance of any witness and on that date if they fail to do so the court can proceed with the matter if they are present. Even to proceed on merits on that date, the court must possess sufficient material on record to dispose of the case on merits. In this case, on 12.2.7.90 there is absolutely no material available before the court for disposal of the matter on merits. It may be pertinent to refer to some of the judgments which clearly laid down the principles.
9. In the case reported in Prakash Chander v. Janki Manchanda, AIR 1986 SC 42 the Supreme Court has held as follows:
In some decisions, the High Courts have gone to the extent of saying that even if the trial Court disposes of the matter as if it was disposing it on merits under Order 17, Rule 3 still if the party against whom the decision was pronounced was absent it could not be treated to be a disposal in accordance with Order 17, Rule 3 and provisions of Order 9 will be available to such a party either for restoration or for setting aside an ex parte decree. Learned counsel placed before us a number of decisions of various High Courts on this aspect of the matter. But in our opinion in view of the amendment to these two rules which have been made by 1976 amendment of the Civil P.C, it is not dispute that to the facts of the case, Civil P.C. as amended will be applicable and therefore it is not necessary for us to go into that question...It is clear that in cases where a party is absent only course is as mentioned in Order 17(3)(b) to proceed under Rule 2. 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 R2 as 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 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 remain absent and for that party no evidence has been examined up to 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, Civil P.C. It is therefore clear that after this amendment in Order 17, Rule 2 and 3, Civil P.C. there remains no doubt and therefore there is no possibility of any controversy."
10. In the judgment reported in Rama Panicker v. Bakari Hydrose, Chennampilly, the Kerala High Court has held as follows:
Order 9 is concerned with appearance of parties and consequences of non-appearance while Order 17 deals with the next stage of adjournments. Appearance could be in person or by pleader. If the parties or any of them do not appear on the adjourned date, the Court can decide the suit on any of the available methods provided in Order 9 It will only be a decision for default. The only exception provided by the amendment of 1976 is the one under the new Explanation to R2, which enables the Court to render a decision on the merits also in such cases under Rule 3, provided the evidence or a substantial portion of the evidence of the non-appearing party has already been recorded. Under the old Code, a decision on the merits under Rule 3 was possible irrespective of the presence or absence of the parties, according to the discretion of Court, provided the adjournment was at the instance of the defaulting party, who failed to produce his evidence, or cause attendance of his witneses, or perform any other act necessary to the further progress of the case, for which time was granted. Now, under the newly added clause (a) over and above the said conditions, presence of parties is also necessary. So also under the new Clause (b), if the parties are, or any of them is, absence, the decision could be only under Rule 2. Of course, these two clauses are subject to the Explanation to Rule 2. In order to attract Rule 3, a general adjournment or posting of the case is not sufficient A specific posting by an adjournment at the instance of the defaulting party for any one of the purposes mentioned in the first part of Rule 3 and failure are necessary. A direction to comply with any such condition and its failure at some earlier point of. time will not be sufficient. The posting on the particular day must be for that purpose.
In this case, the posting to 1.10.1980 was a general posting for trial in the specialist. It was not at the instance of the appellant for any of the purposes in Rule 3 The posting for production of survey records was at an earlier date. Default met with the penalty of recalling the commission order. Posting to 1.10.1980 was not for that purpose and it was not at the instance of the appellant. Therefore, Rule 3 is excluded. So also, this is not a case in which Explanation to Rule 2 is attracted. Evidence or substantial portion of the evidence of the appellant was not recorded before 1.10.1980. Appellant was not present on that day also. Dismissal was for default and not on the merits. In any view, Rule 3 cannot be attracted. Now, the discretion to decide the case on the merits in the absence of a party even when other conditions are satisfied is only in cases covered by the Explanation to Rule 2 (Prakash Chander Manchanda v. Janki Manchanda, ). A dismissal in the absence of a party and not covered by the Explanation to Rule 2 cannot come under R3 simply because it was written on the merits by discussing the issues and evidence, if any M.V. George v. S.M.R Traders, . Likewise, a decision falling under Rule 3 will not become one under Rule 2 simply because the Court has not written a detailed judgment considering the issues and evidence."
11. In the judgment reported in Pulin v. Rajendra, AIR 1972 Gauhati 25, the Division Bench of the Gauhati has held as follows:
"On the authority of two decisions of the Assam and Nagaland High Court, viz., Mst. Giri Agarwalini v. Baleswar Tewari, AIR 1961 Assam & Naga and Mohanlal v. Lachman, Shri Choudhury, AIR 1961 Assam & Naga 144, next contended that once the summons is issued and served and the suit is decided thereafter in the absence of the defendant in the decree passed shall always be considered as one made on merits and not ex parte. It is difficult to accept this proposition as of universal application. One can easily conceive cases where the provisions of Rule 2 and 3 of Order 17 simultaneously become operative. As an instance, the defendant may have secured an adjournment from the court for the purpose of producing his witnesses on his own responsibility and on the date next fixed by the Court he (the defendant) fails to appear in the Court, or the plaintiff had secured an adjournment for identical purpose but he failed to appear on the adjourned hearing. The question that would arise for determination in such circumstances would be in the case of defendant's absence, whether the Court should proceed ex parte against him or decide the suit on merits, and in case if plaintiff's absence whether the suit should be dismissed in default or decided on merits. There is sharp conflict of judicial opinion in India on how the Court should proceed in such circumstances. One view expressed is that the Court should proceed ex parte against the defendant at whose instance the adjournment had been granted and who had failed to put in appearance, and of the plaintiff had not turned up on the date fixed after getting an adjournment for taking further steps in the suit then the suit should be dismissed in default of his appearance. In other words, the Court should proceed under Rule 2. Ignoring for the time being the default made in terms of Rule 3. Another view shared by a few High Courts in India is that the Court should in such circumstances decide the suit on merits and the decree made by it shall be open to challenge only, in appeal and not by a proceeding taken under Order 9 by the plaintiff or the defendant, as the case may be. Yet another view expressed which appears to adopt the middle course is that if enough of material is available on the record then the Court should decide the suit on merits rather than dismiss it in default of appearance of the plaintiff or make an ex parte decree because of non-presence of the defendant.
A perusal of the two authorities cited by Shri Choudhury shows that this High Court has preferred to follow the middle course mentioned above, namely, if on account of the absence of the plaintiff or the defendant a situation contemplated by Rule 3 of Order 17 arises, and there is enough material on record to decide the suit on merits, then the Court should decide it on merits and the decree made in such an event shall be open to challenge only in appeal and not by a proceeding under Order 9. We believe that this is the soundest of all the three views and there is considerable justification for our adopting it for it has the merit of frustrating the design, if any, of the defaulting party in prolonging the litigation or keeping its final outcome uncertain. This view, however, must be subject to the proviso that if there is not enough of material on the record by the date the default occurs, the court should, and probably it will have no alternative but to proceed under Rule 2 rather than under Rule 3 because it cannot award a decree for or against the party in default unless there is evidence or other material on record to justify such a course. This exactly is the view taken by the High Courts of Calcutta and Lahore. The Calcutta High Court held in Brojendra Nath v. Promatha Bhusan, AIR 1933 Cal.412 that in a case where there are no materials on the record, the proper procedure to be followed would be that laid down in Rule 2, but if there are materials on the record the court ought to proceed under Rule 3. It was observed further that to apply the procedure laid down in Rule 3 to a case there must be the presence of both the elements, which (i) the adjournment must have been at the instance of a party and (ii) there must be materials on the record for the court to proceed to decide the suit, and that the presence of one without the other does not justify the application of Rule 3. An identical view was expressed by the Lahore High Court in the case of Sher Ali v. Mangu, 52 Ind Cas 292 : AIR 1919 Lah 344. We respectfully agree with this view and so repel the contention of Shri Choudhury that irrespective of the state of record, the court is bound to pass a decree on merits if the defendant fails to appear in court after having once put in appearance in response to the summons served on him."
12. From the above referred judgments, it is very clear that Order 17, Rule 3, C.P.C. wilt be attracted only if the case has been adjourned at the request of any one of the parties to the proceedings to produce evidence and on their failure the court if possessed of sufficient materials on record, can dispose of the case on merits. Since both the requirements are absent in this case as on 12.7.90, both the courts below are not correct in finding that the suit had been disposed of on that date under Order 17, Rule 3. Hence the said finding is set aside.
13. So far as the lower appellate court's order is concerned, it proceeded one step further and accepted the oral evidence of the defendants and found that the defendant was present on the date of hearing and her statement made in the affidavit is contrary to the statement made in the evidence. Hence her case cannot be accepted. As stated already, the petitioners in their affidavit had stated that they were not aware about the hearing date and they did not appear for the two hearings earlier to the date of setting ex parte on the hope that their counsel would inform the date. Since their counsel did not inform the date, they were not aware about the ex parte decree. In the counter affidavit filed by the respondent also it is clearly stated that the petitioners have not explained their absence on 19.7.90. It cannot be 19.7.90, since it was the date on which the judgment was pronounced. The defendants were ex parte on 12.7.90 and the ex parte evidence was taken on that date. But, however, the second petitioner herein, in her cross-examination, had stated as follows:
In the cross-examination she has categorically stated that she was present for every hearing date. She received a letter stating that the suit has been decree ex parte. Then the application has been filed for setting aside the ex parte decree. She came to know about the ex parte decree only through her counsel. Immediately the application has been filed. The statement made in the cross-examination is only a mistake on her part. That mistake cannot be seriously taken note of; especially when the petitioner claims that she is not a literate. More over, in the affidavit, the petitioner has stated that she was not present on the date of ex parte decree and in the counter also the respondents had admitted their absence and contended that their absence had not been explained. So there is no dispute that on the date when the petitioners were set ex parte and on the date of pronouncement of the judgment, the petitioners were absent. Further more the 'B' diary endorsement clearly reveals that on 12.7.90 there was no representation on behalf of the defendants and the defendants were called absent. From the above stated facts, it is clear that the defendants remained ex parte and they were not present on the date of taking the ex parte evidence and pronouncement of the judgment. Hence the reliance placed by the lower appellate court to reject the explanation given by the petitioners for their absence cannot be upheld.
14. For the reasons stated above, I am of the opinion that the orders of both the courts below cannot be sustained. The civil revision petition is allowed. Consequently I.A.No. 1065 of 1990 for setting aside the ex parte decree shall stand allowed. There will be no order as to costs.
15. The trial court is directed to take up the suit for disposal forthwith and dispose of the same within four months from the date of receipt of the copy of this order and report the same to this court.