Bombay High Court
Balu @ Madhavrao Shankarrao Ghorpade ... vs Smt. Radhakkabai Panditrao Ghorpade ... on 5 August, 2003
Equivalent citations: 2004(1)BOMCR77, 2004(1)MHLJ323, 2003 A I H C 3842, (2004) 2 CIVLJ 296, (2004) 1 MAH LJ 323, (2003) 4 ALLMR 445 (BOM), 2004 BOM LR 1 676, (2004) 16 INDLD 245, (2004) 1 BOM CR 77
Author: Ranjana Desai
Bench: Ranjana Desai
JUDGMENT Ranjana Desai, J.
1. The petitioners are original defendants and the respondents are original plaintiffs in Special Civil Suit No. 203 of 1984 filed in the court of Civil Judge, Senior Division, Kolhapur. For the sake of convenience the parties are referred to in this judgment as per their status in the suit.
2. For the purposes of this petition it is not necessary to go into details of the facts involved in the suit. Suffice it to say that the suit was for possession of land on the ground that it was joint family property and that the father of the defendants was a licensee. The defendants in their written statement denied that the plaintiffs were entitled to suit land and that their father was a licensee.
3. The rojnama of the suit shows that on 20.12.1985, issues were framed. Suit was adjourned to 5.4.1986. On 5.4.86, it was adjourned to 4.7.86. On 4.7.86, it was adjourned to 19.7.86. On 15.7.86 the plaintiffs requested for issuing of witness summons, that request was granted and the suit was adjourned to 19.7.1986. On 19.7.86, the plaintiff's advocate was present. The defendants and their advocate were absent. Plaintiff's advocate produced some documents. Depositions of plaintiff's witnesses were recorded./ Plaintiffs advocate filed a pursis stating that he plaintiff's arguments were closed. The suit was fixed for hearing on 21.7.86. On 21.7.86, the court resumed hearing. The plaintiff's advocate produced some more documents. Judgment was passed. The suit was decreed.
4. On 11.8.86, the defendants filed Misc. Application No. 147 of 1986 under Order IX Rule 13 of the Code of Civil Procedure ("the Code" for short) for setting aside the said judgment and decree. it was stated in the application that the applicant Balu Ghorpade was attending to the suit on behalf of other defendants. On 147.1986, he had swelling of the throat. Doctor had advised him rest. Therefore, he could not remain present in the court on 19.7.1986. On 31.3.88, the trial court rejected the application holding that the judgment was passed on merits. It was not an ex parte judgment and decree. Hence only superior court can deal with it. The court also held that the defendants had not made out any sufficient cause.
5. The defendants challenged this order. The lower appellate court by its judgment and order dated 31.3.1988 confirmed the trial court's view that the judgment and decree dated 21.7.1986 was not an ex parte decree. it also held that in view of this the application for setting aside the same was not maintainable. In any event, it was found by the lower appellate court, that the defendants had not made out any sufficient cause. The petitioners have challenged the said judgment and order in this petition.
6. The short question involved in this petition is whether the judgment and decree dated 21.7.86 is one under Order XVII Rule 3 of the Code. In other words the question is whether it is an ex parte decree or not. If it is an ex parte decree an application to set it aside would be maintainable under Order IX Rule 13. If it is not, then obviously the defendants can only appeal against it.
7. Mr. Sadavarte, learned counsel for the petitioners/defendants contended that both the courts have misconstrued the relevant provisions of the Code. He submitted that to the facts of the present case provisions of Order XVII Rule 2 are attracted, because no evidence was laid by the defendants. Order XVII Rule 3 would be applicable only when a party to a suit is granted time to per form any act necessary for the further progress of the suit and he fails to do so. In such a situation notwithstanding such default if the parties are present the court can proceed to decide the suit forthwith. Such is not the case here. He further submitted that under Order XVII Rule 2, where on the adjourned date of hearing the parties or any of them fail to appear the court has to proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such order as it thinks fit. Order IX Rule 6(1)(a) provides that if it is proved that the summons was duly served, the court may make an order that the suit be heard ex parte. If Order XVII Rule 2 is read with Order IX Rule 6(1)(a), it is clear that where evidence of the defendant is not recorded and he is absent and the court passes any order it is an ex parte order. In support of his submissions, the learned counsel relied upon Sangram Singh v. Election Tribunal Kotah and Anr., , Prakash Chander Manchanda and Anr. v. Smt. Janki Manchanda, , Basalingappa Kumbhar and Ors. v. Shidramappa Shivavagi and Anr., A.I.R. (30) 1943 BOM 321, Seth Munna Lal v. Seth Jai Prakash , Rama Rao and Ors. v. Shantibai and Ors., & Rinoo Meshram v. Prabhakar Vyawahare, 1980 M.L.J. 784.
8. On the other hand Mr. Bandiwadekar, learned counsel appearing for the respondents, contended that the judgments cited by Mr. Sadawarte pertain to unamended provisions of the Code will have no application to the case on hand. He submitted that the case squarely falls within the ambit of Order XVII Rule 3 of the Code. He submitted that the defendants have filed written statement. Issues were framed. In such circumstances they had to remain present on the adjourned date with their witnesses. They had failed to do so. Hence Order XVII Rule 3 would be attracted. He submitted that in any event Order XVII Rule 2 empowers the court to pass "any order as it thinks fit". The court can, therefore, pass an order on merits also. He further submitted that under Order IX Rule 6.1(a), the court is required to make an order that the suit be heard ex parte. Making of such an order is mandatory. This is evident from the fact that prior to the amendment this provision was not there. Since the court has not made an order that the suit be heard ex. parte. In this connection he relied on Rambrish K. Shukla and Anr. v. Municipal Corporation of Gr. Bombay and Anr., (1999) Vol. 101 (2) B.L.R. 668. He also relied on Himachal Pradesh Cooperative Marketing & Development Federation Ltd. v. Mafco Ltd. 2000 (1) B.C.R. 608 and Lalit Chandra Das and Ors. v. Sushil Chandra Guha and Anr., .
9. In order to appreciate the rival contentions it is necessary to read Order XVII Rules 2 & 3.
"Order 17 Rule 2. Procedure if parties fails 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." (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. Order XVII Rule 3 bears the caption "Court may proceed notwithstanding either party fails to produce evidence etc." It states when a court can proceed to decide a suit on merits. It gives the court the discretion to proceed with the case and decide it forthwith if the parties are present and any party to whom time has been granted to perform any act necessary to the further progress of the suit does not perform it. However, if the parties or any of them is absent, the court may, under Rule 3(b), proceed under Order XVII Rule 2, that is because Order XVII Rule 2 provides for procedure to be followed if parties fail to appear on day fixed for hearing. First part of Order XVII Rule 3 contemplates a situation where parties are present but an obligation put on one of them is not carried out by it. In such a situation the suit can be decided forthwith. If they are absent and there is a default, the court still has a discretion to go back to Rule 2.
11. Order XVIII Rule 2 states that 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 to this Rule is significant. It says that 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. It is clear, therefore, that barring the case covered by the explanation, all other cases covered by Order XVII Rule 2 are cases where parties or any of them fail to appear and no evidence is recorded of such a party. Explanation is clarificatory. It democrats the area of the operation of rest of Order XVII Rule 2.
13. It is also necessary to see the consequences of the court proceeding to dispose of the suit in one of the modes provided in Order IX when on the adjourned date the parties or any of them fail to appear. Absence can be of one of the parties or of both. Order IX provides for the steps which the court has to take, depending on who has remained absent. Order IX Rule 6 provides for procedure where only plaintiff appear. Order IX Rule 8 provides for procedure where only defendant appears. Order IX Rule 10 provides for procedure in case of non-attendance of one or more of several plaintiffs. Order IX Rule 11 provides for procedure in case of non-attendance of one or more of several defendants.
14. In this case the defendants did not appear. Written statement was already filed. But no evidence was laid on behalf of the defendants. Therefore, the case is covered by Order XVII Rule 2. This Rule requires the Court to fall back on any of the modes prescribed in Order IX. Since the plaintiffs appeared and the defendants did not appear when the suit was called on for hearing the provisions of Order IX Rule 6 will apply to this case. So far as it is relevant for this case, Order IX Rule 6 reads thus:
"6. Procedure when only plaintiff appears-(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing then;
(a) When summons duly served-If it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte;)
(b) .....
(c) .....
(2) ....."
15. There can be no dispute about service of summons because the defendants have not made any grievance. Written statement was filed. No evidence was recorded. Therefore, in my opinion, the judgment and decree dated 21.7.1986 is ex parte.
16. Mr. Bandiwadekar urged that under Order XVII Rule 2 the court can also make "such other order as it thinks fit". Therefore, the present judgment is passed pursuant to that provision. In a given case the court can pass a decree on merits also. In am unable to agree with this submission . This words can never permit the court to override the limits circumscribed by Order IX Rule 6(1)(a). These words do not contemplate an order on merits. Such an interpretation is not consistent with the explanation to Order XVII Rule 2. If an order on merits can be passed by a court when no evidence is laid on behalf of the party which is absent then there was no need to make a clarification by way of explanation to this Rule that where the evidence or substantial portion of the evidence of any party has been recorded and that party fails to appear the court may in its discretion proceed with the case. In my opinion, all other cases covered by Order XVII Rule 2 where no evidence is laid on behalf of the absent party the order can only be ex parte.
17. In this connection it is necessary to refer to the Full Bench decision of this court in unamended provisions of Order XVII Rule 2 and 3. Unamended Order XVII Rules 2 and 3 read as under:
"2. 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."
"3. 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."
Therefore, there was no explanation to unamended Order XVII Rule 2. Unamended Order XVII Rule 3 did not provide for the courts falling back on Order XVII Rule 2 in case parties to whom time has been granted to perform acts necessary for further progress of the suit fail to do so.
18. The Full Bench in Basalingappa's case (supra) considered whether expression "make such order as it thinks fit" enables the Court to make an order on merit. The court negatived this argument. It observed -
"The next argument is that it is not obligatory upon the Court to pass a decree for default in case of non-appearance under Order 17, Rule 2, but that the Court has the discretion to "make such other order as it thinks fit." It is true that that provision might enable the Court to pass any order, i.e., either to grant further adjournment or dispose of the suit on such conditions as it might think proper. It does not, however, empower the Court to decide a suit on the merits, if no evidence had been recorded before the default of appearance had taken place. If evidence is led after the default, all further proceedings would be clearly ex parte against the party making the default. In the present case no evidence had been led before the default took place, and the whole evidence on which the trial Court passed the decree was led after the default. It is, therefore, an ex parte decree, and no question arises about the Court having sufficient material to pass a decree on merits before the default took place."
19. In my opinion, these observations will apply to the facts of the present case also, because the amendments do not change the position so far as this expression is concerned. The explanation added to Order XVII Rule 2 merely makes it clear that only in case where evidence is recorded and the party whose evidence is recorded is absent, the court can decide the case on merits. In fact this amendment indicates the legislative intent that, if no evidence is recorded before the default takes place the court cannot decide the suit on merits. By adding Clause (b) to Order XVII Rule (3) the legislature has merely given an option to the court even in cases where parties fail to carry out their obligation and remained absent to fall back on Order XVII Rule 2. Therefore, the Full Bench decision on interpretation of the words "make such order as it thinks fit" can be relied upon to interpret the said words even after amendment of Order XVII Rule 1 and 2.
20. Mr. Bandiwadekar also argued that assuming that the court can pass an ex parte order by falling back on Order IX Rule 6(1)(a), it has to make an order that the suit be heard ex parte. He submitted that inasmuch as the words 'make an order that the suit be heard ex parte' are added by amendment, this requirement is mandatory. In this connection he relied on Rambrish's case (supra) and submitted that since no formal order was made, the judgment and decree in question cannot be called ex parte.
21. Unamended Order IX Rule 6(1)(a) read as under:
"6.(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-
(a) if it is proved that he summons was duly served, the Court may proceed ex parte;
After amendment the relevant part of the said provision reads as under:
"6. Procedure when only plaintiff appears-(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing then;
(a) When summons duly served-If it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte;"
In this connection relevant extract from the report of the Joint Committee published in the Gazette of India dated 1.4.1976, needs to be quoted.
"Clause 59 - (Original Clause 62). - (i) The Bill provides that when the plaintiff appears and the defendant does not appear, the Court may proceed ex parte, if it is proved that the summons was duly served and may give a judgment on the basis that the facts stated in the plaint are true. The Committee feel that the Court should not be empowered to pass an ex parte decree unless there was evidence before it to indicate that, if such evidence were not controverted, the plaintiff would be entitled to a decree. In the circumstances, the Committee feel that the status quo ante should be maintained. Proposed Clause (a) of Sub-rule (1) of Rule 6 has been amended accordingly." [Report of the Joint Committee - Gazette of India, Ext. dt. 1.4.76 Pt. II Section 2 p. 804/13] Order IX Rule 7 provides that where the court adjourns the hearing of the suit ex parte, the defendant can appear on or before such date, assign good cause for his non-appearance, and the court may hear him on payment of costs or otherwise. All this leads me to conclude that, if the defendant does not appear though duly served, the court should have evidence before it to indicate that, if such evidence is not controverted, the plaintiff would be entitled to a decree. Therefore, the ex parte decree cannot be passed in undue haste. Though Order VI Rule 1(a) does not state that on the very day on which the defendant does not appear the court cannot pass an ex parte decree, the hearing of the suit, in a given case, will have to be adjourned for ex parte decree, so that the plaintiff can adduce evidence and on that uncontroverted evidence, the court can pass an ex parte decree. In am unable to agree with Mr. Bandiwadekar that, if formal order that suit shall be proceeded ex parte is not made, the decree cannot be ex parte. Whether the decree is ex parte or not can be decided from the other attendant circumstances also. In my opinion, reliance placed by Mr. Bandiwadekar on Rambrish's case (supra) is totally misplaced.
22. In Rambrish's case (supra) on the relevant day defendant 1 was present. Examination-in-chief of plaintiff's witness was concluded. No oral evidence was led by defendant 1. Second defendant and his advocate were absent. No written statement was filed and that day itself judgment was passed. The 2nd defendant applied for setting aside of that judgment. The trial court rejected the application. He filed Civil Revision Application in the High Court. The High Court considered Order VII Rule 5(2) which says that, if the defendant has not filed a pleading it shall be lawful for the court to proceed to pronounce judgment on the basis of the facts contained in the plaint but the court may in its discretion require that any fact may be proved. The court was not considering provisions of Order XVII Rules 2 and 3. Moreover the judgment was passed on the same day. It is in these circumstances that the court held that the formal order of the court to proceed ex parte was not made and the decree was not ex parte.
23. In this case on 19.7.86 plaintiff's evidence was recorded and the case was adjourned to 21.7.1986. On 21.7.1986 the court resumed hearing. The plaintiff's advocate produced some more documents and the decree was passed on the uncontroverted evidence of the plaintiff. Though formal order does not appear to have been made all other conditions are satisfied. The judgment and order therefore, is ex parte.
24. The judgment of the Supreme Court in Prakash Chander's case (supra) applies to the case on hand on all fours. In that case plaintiff's evidence was over. The case was fixed for the defendant's evidence. On that day defendant's witnesses were not present. At the request of the defendant's counsel the case was adjourned. The case was put up on 30.10.85, when the counsel for the plaintiff was present but no one was present for the defendant. The court passed the order "the case was called but none has appeared on behalf of the defendants and no defendant's witnesses are present. The evidence of the defendant closed. Now to come up for arguments" The next date was 1.11.1985. On this day nobody appeared for the defendant. At the request of the plaintiff's counsel the case was adjourned to 8.11.1985. On 8.11.85, the arguments of the plaintiff's counsel were heard. No one was present for the defendant. The case was fixed for judgment on 11.11.85. On this day also the plaintiff's counsel was present but nobody was present for the defendant. The case was postponed to 22.11.85. On 22.11.85, judgment was dictated and the judge ordered that the decree be prepared. When the defendant came to know about it he filed an application under Order IX Rule 13 of the Code for setting aside the decree which was dismissed. His appeal was dismissed by Delhi High Court. The view of the court was that the case was disposed of not in accordance with Order XVII Rule 2 but in accordance with Order XVII Rule 3, and, therefore, the application under Order IX Rule 13 was not maintainable. The Supreme Court held that when the trial court closed the case of the defendant there was no evidence on record on behalf of the defendant. Hence explanation to Order XVII Rule 2 was not applicable when defendant was absent and no evidence was recorded on his behalf, the court can only proceed under Order XVII Rule 2. It cannot dispose of the case on merits.
25. The relevant observation of the Supreme Court may be quoted.
"It is clear that in case 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 Rule 2 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 Rules 2 and 3 Civil P.C. 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 30-10-1985, when the case was called nobody was present for the defendant. It is also clear that till that date the plaintiff's 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 up to the date i.e. 30-10-1985 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 to 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."
26. It is also significant to note that no formal order of 'ex parte' was made but the case was simply adjourned for judgment. In my opinion to the facts of the case on hand this judgment squarely applies. I, therefore, hold that the judgment and decree in question was an ex parte decree and an application for setting it aside was maintainable. It is not necessary to refer to other judgments cited by the learned counsel in view of authoritative pronouncement of Supreme Court in Prakash Chander's case (supra).
27. I am also of the view that on the question of sufficient cause the courts below have adopted a highly rigid approach. Defendant 1 was attending to the case on behalf of others. He had swelling of throat. Doctor was examined by the defendant. The doctor had given certificate. The exact dates may not tally. But illness was deposed to by the doctor. There was no need for the courts to adopt such rigid approach when they were dealing with an ex parte decree.
28. In the result, the impugned order dated 31.3.88 passed by the learned Civil Judge, Senior Division, Kolhapur in Misc. Civil Application No. 147 of 1986 and judgment and order dated 26.11.88 passed by the Additional District Judge, Kolhapur in Misc. Civil Appeal No. 77 of 88 are quashed and set aside. The judgment and decree dated 21.7.86 in Special Civil Suit No. 203 of 1984 is quashed and set aside.
29. The learned Judge seized of Special Civil Suit No. 203 of 1984 is directed to hear and dispose of the same in accordance with law.
30. Petition disposed of.