Kerala High Court
Sebastian Jayaseelan vs Revathy Enterprises on 17 January, 2001
Equivalent citations: 2001 A I H C 1165, (2001) 1 KER LJ 429, (2001) 1 KER LT 552, (2002) 2 RECCIVR 302
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
ORDER M.R. Hariharan Nair, J.
1. The plaintiff in O.S. No. 534/96 of the Second Additional Sub Court, Ernakulam, is aggrieved by the order passed in I.A. No. 2886/98 filed by the defendant where by the said application was allowed and the judgment and decree passed in the suit on 17.7.1998 was set aside invoking powers under O. IX R.13 of the Code of Civil Procedure.
2. The learned counsel for the petitioner placing reliance on the decision in Prakash Chander v. Janaki Manchanda (AIR 1987 SC 42) pointed out that O. IX R. 13 will have no application in the case where the defendant was physically present at the time when the case was taken up for disposal and that the provision will have application only where the case is decided or taken up for decision in the absence of the defendant. The learned counsel also points out with reference to the facts of this case that on 16.7.1998 both parties were present ready to proceed with the trial of the suit as scheduled as announced in the special list and that protesting against the disallowance of certain questions put to the plaintiff by the defence counsel during cross-examination, he adopted an attitude of non-co-operation with regard to the further proceedings and actually ignored the further proceedings. The counsel also points out that on the unilateral stoppage of cross-examination of the plaintiff by the defence counsel the court called upon the defence to examine the defence witnesses and that there was refusal to do so. Therefore the court proceeded with the suit and on the very next day passed the judgment on the merits. Such decision, according to the learned counsel for the petitioner, is a decision under O. XVII R. 3(a) of the CPC which can only be appealed against and no petition under O. IX R. 13 would be.
3. The notice issued in the present revision to the respondent - defendant came back with the endorsement "firm locked". Thereafter, substituted service through paper publication was resorted to. Even during hearing today, the respondent has not entered appearance in the case and hence I am constrained to dispose of the matter on hearing the petitioner alone.
4. What is clear from the judgment passed on 17.7. 1998 is that the decision was rendered on the merits, albeit based on plaintiff's evidence alone. The defence contentions also were examined on the merits with reference to the evidence available before court including that of PW.1. There is nothing to show that the defendant was absent at the time when the case was taken up for trial on 16.7.1998, O. XVII R.3(a) of the CPC provides that where there is failure of the party to whom time was granted to adduce evidence or to perform any other act necessary to the further progress of the suit, the court may, "if the parties are present, proceed to decide the suit forthwith" and under R.3(b), if the parties are, or any of them is, absent, proceed under R.2. Under R.2, where on any day of hearing, the parties, or any of them, fail to appear, the court may proceed to dispose of the suit under O. IX or make such other order as it minks fit. A joint reading of Rr. 2 and 3 makes it clear that resort to O.17 R.2 invoking the provision in (XXVII R3(b) would be possible only in a case where the party concerned is absent. It is further clear from R.3(a) that if the party is actually present, the court can proceed to decide the suit forthwith which may be on the merits.
5. The Apex Court had occasion to go into the scope and ambit of the aforesaid provision in Prakash Chander (supra). That was a case where on the date fixed for trial, the defendant remained absent and no evidence was adduced on his behalf. The Court proceeded to dispose of the suit on the merits. Subsequently, an application was filed under O. IX R.13 of the CPC. The Apex Court held that where a party is absent the only course available is as mentioned in O. XVII R. 3(b) to proceed under R. 2. In the absence of the defendant, the court will have no option but to proceed under R. 2. 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 O. IX. The explanation to R. 2 gives a discretion to the Court to proceed under R. 3 even if a party is absent; but that discretion is applicable only in cases where a party who is absent has led some evidence or has adduced substantial part of his evidence. If on the date fixed, one of the parties remain absent and for that party no evidence is adduced upto that date, the Court will have no option but to proceed to dispose of the matter in accordance with O. XVII R.2 i.e., many one of the modes prescribed under R. IX of the CPC. Considering the fact that on the date when the evidence of defendant was closed nobody appeared for the defendant, the Hon'ble Supreme Court held that the disposal can be taken as under O. XVII R. 2 and an application under O. IX R. 13 would be maintainable.
6. In the instant case, it is obvious that the defendant could not adduce any evidence of his own obviously due to the stand taken by the defence counsel arising from a dispute with regard to his entitlement to put particular questions to the plaintiff's witness. There was hence no effective defence with regard to the case from that moment, though the defence counsel was actually present.
7. Kesavan Nair v. Travancore Devaswom Board (1992 (2) KLT 551) deals with a more or less similar case. There also the defendant had not adduced any evidence on his side. There was no adjournment of the case for evidence. The court held that if the suit was adjourned at the instance of the defendant then the court would be justified in disposing the suit under R.3 of O. XVII. On the order hand when the case came up for trial for the first time in the special list and the defendant "did not effectively participate in the proceeding", the court could have proceeded only under O. IX of the CPC and the case could not have been considered on the merits.
8. In the instant case also there was no adjournment of the case for defence evidence and the evidence was closed on the very next day when the case came up for trial for the first time in the special list. Though based on a controversy regarding right to put questions in cross-examination, there was failure on the part of the defendant to effectively participate in the proceeding.
9. In these circumstances, I am of the view that a hypertechnical stand may not be justified and that the interests of justice demand grant of an opportunity to the defendant to contest the suit on the merits. It is presumably with this perspective that the trial court has proceeded to allow the petition filed under O.IX, R.13, albeit on costs.
10. In the circumstances, I do not find my way to interfere with the impugned order. The revision is without merit and it is dismissed.