Judgment · High Court · 2012

#6. I have heard Ms P. Bhattacharya, learned counsel for the appella nt and Mr P. Khataniar, who had also appeared subsequently in the hearing of the case for the respondents. Mr BC Das, learned Amicus Curiae had also made elabor ate submissions before this Court. The question that has fallen for consideration of this Court is 7. as to whether the order dated 25.06.04 was really an order dismissing the suit for default or an order dismissing the suit on merit for want of evidence, as n oted in the said order dated 25.06.04. A perusal of the order dated 25.06.04 w ould go to show that the suit was dismissed for want of evidence consequent upon the rejection of the petition filed by the counsel for the plaintiff seeking ad journment on the ground that the plaintiff was unable to attend Court due to ill ness. The importance of this question lies in the fact that the remedies availab le against the order depend on whether it is made under Rule 2 or Rule 3 of Orde r XVII CPC. 8. Order XVII of CPC provides for provisions relating to adjournmen t. Order XVII has undergone substantive changes by the amendment of 1976. Prior to amendment, Order XVII read as follows:- (cid:28)1. Court may grant time and adjourn hearing - (1) The Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit. Costs of adjournment - (2) In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit wi th respect to the costs occasioned by the adjournment: Provided that, when the hearing of evidence has once begun, the hearing of the suit shall be continued from day to day until all the witnesses in attend ance have been examined, unless the Court finds the adjournment of the hearing b eyond the following day to be necessary for reasons to be recorded.

#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 t o appear, the Court may proceed to dispose of the suit in one of the modes direc ted in that behalf by Order IX or make such other order as it thinks fit.

#3. Court may proceed notwithstanding either party fails to produce evide nce, etc.- Where any party to a suit to whom time has been granted fails to prod uce 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 bee n allowed, the Court may, notwithstanding such default, proceed to decide the su it forthwith (cid:29).

#9. vant for the purpose of this case, read as follows : After amendment, Rule 2 and Rule 3 of Order XVII, which are rele (cid:28) 2. Procedure if parties fail to appear on day fixed.- Where, on any da y 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 dir ected 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 evidenc e 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 discret ion proceed with the case as if such party were present.]

#3. Court may proceed notwithstanding either party fails to p roduce 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 t o 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; o r (b) if the parties are, or any of them is, absent, proceed under Rule2.

#10. It is noticed that the 1976 amendment incorporated an explanatio n to Rule 2 and has amended Rule 3 to lay down separately what the Court is to d o when the parties are present and when the parties or any of them is absent. On the terms of Rule 2 and Rule 3 of Order XVII, prior to amendment of 1976, there were divergence of opinion amongst various High Courts, with regard to the scop e, ambit and application of either of the two Rules. Some of the High Courts had taken a view that the two Rules are mutually exclusive and independent, while s ome others took a contrary view. The Calcutta High Court and the Bombay High Co urt took a view that when there were no materials on record, the Court should pr oceed under Rule 2 and in a case, where there are materials on record, the Court should proceed under Rule 3. The Madras High Court did not share that view and it had laid down that if a party is absent on the adjourned date, the Court can proceed only under Rule 2 notwithstanding the fact that the evidence had been re corded at the instance of such a party at an earlier date of hearing. 11. After the amendment, Rule 3 (a) provides that if the parties are present, the Court may proceed to decide the suit forthwith and Rule 3 (b) pro vides that if the parties are, or any of them is, absent, Court shall proceed u nder Rule 2. In the event of application of Order XVII Rule 3 (b), in view of O rder XVII Rule 2, the Court may proceed to dispose of the suit in one of the mod es directed in that behalf by Order IX or it may make such other order as it thi nks fit. 12. Order IX Rule 3 provides that where neither party appears when t he suit is called on for hearing, the Court may make an order that the suit be d ismissed. Order IX Rule 6, amongst others, provides that when the plaintiff app ears and defendant does not appear when the suit is called on for hearing, and i f it is proved that the summons was duly served, the Court may make an order tha t the suit be heard ex-parte. Order IX Rule 8 provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing , the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. Or der IX Rule 9 provides that where a suit is wholly or partly dismissed under Rul e 8, the plaintiff shall be precluded from bringing a fresh suit in respect of t he same cause of action, but he may apply for an order to set the dismissal asid e, and if he satisfies the Court that there was sufficient cause for his non-app earance when the suit was called on for hearing, the Court shall make an order s etting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

#13. Order XVII contains an expression (cid:28) hearing of the suit (cid:29). Order X Rule 1 CPC provides for recording of statement of the parties to the suit at the (cid:28) first hearing of the suit. (cid:29) Order XIV Rule 1 (5) provides that at the (cid:28) f irst hearing of the suit (cid:29), the Court shall, after reading the plaint and the wri tten statement, if any, and after examination under Rule 2 of Order X and after hearing the parties or through pleader ascertain upon what material proposition of fact or of law the parties are at variant, and shall there upon proceed to fr ame and record the issue on which the right decision of the case appears to depe nd. Order XV Rule 1 states that where at the (cid:28)first hearing of the suit (cid:29) it appe ars that the parties are not at issue on any question of law or a fact, Court ma y at once pronounce judgement. The conjoint reading of the aforesaid provisions would go to show that the (cid:28) first hearing of the suit (cid:29) can never be earlier than the date fixed for the preliminary examination of the parties and the settlemen t of the issue. The hearing pre-supposes the existence of an occasion which enab les the parties to be heard by the Court in respect of the cause. In a civil sui t, the trial begins when issues are framed and the case is set down for recordin g of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. The words (cid:28)first he aring of the suit (cid:29) do not mean the day for the return of the summons or the retu rnable date, but the day on which the Court applies its mind to the case which o rdinarily would be at the time when either the issues are determined or evidence is taken. ( Kailash -vs- Nankhu and Ors., reported in (2005) 4 SCC 480, Baldev Singh and Ors. -vs- Manohar Singh and Ors., reported in (2006) 6 SCC 498, Vidya bai and Ors. -vs- Padmalatha and Anr., reported in (2009) 2SCC 409 and Kanwar Si ngh Saini -vs- High Court of Delhi, reported in (2012) SCC 307. 14. In Prakash Chander Manchanda and Anr. -vs- Janki Manchanda, repo rted in (1986) 4 SCC 699, the basic facts were that on a particular day, the cou nsel for the plaintiff was present, but none was present for the defendant. None of the witnesses for the defendant was also present and in view of the aforesai d, the learned trial Court had closed the evidence of the defendant and fixed th e case for arguments. On subsequent dates also, nobody had appeared for the def endant and the matter proceeded in this manner in absence of the defendant and f inally the suit was decreed. Claiming that he came to learn about the decree on the day when the plaintiff came to take possession, the defendant filed an app lication under Order 9 Rule 13 CPC for setting aside the ex-parte decree. The le arned Trial Court dismissed the application holding the same to be not maintaina ble as according to the learned Trial Court, the case was disposed of not in acc ordance with Order XVII Rule 2 CPC but in accordance with Order XVII Rule 3 CPC . 15. h 6 laid down as follows : The Apex Court in Prakash Chander Manchanda (supra), in paragrap (cid:28) 6 &. & & & & It is clear that in cases where a party is absent t he only course as mentioned in Order XVII Rule 3 (b) is to proceed under Rule 2 . It is therefore clear that in absence of the defendant, the Court had no optio n but to proceed under Rule 2. Similarly the language of Rule 2 as it now stands also clearly lays down that if any one of the parties fails to appear, the Cour t has to proceed to dispose of the suit in one of the modes directed under Orde r 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 wh ere a party which is absent has led some evidence or has examined substantial pa rt 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 t hat date the Court has no option but to proceed to dispose of the matter in acco rdance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure & & &. (cid:29)

#16. The Apex Court took note of the fact that although the evidence of the plaintiff had been recorded, there was no evidence on record on behalf of the defendant. The Apex Court held that where a party is absent, the only cours e as mentioned in Order XVII Rule 3 (b) is to proceed under Rule 2 and there is no option but to proceed under Rule 2. Accordingly, the Apex Court held that in the facts of the case, Explanation to Order XVII Rule 2 CPC was not applicable a t all and when the defendant was absent, Order XVII Rule 2 only permits the Cour t to proceed to dispose of the matter in any one of the modes provided under Rul e IX and as such while setting aside the order rejecting the application under O rder IX Rule 13 CPC as not maintainable, directed the learned Trial Court to dis pose of the said application in accordance with law. 17. In the Case of Braithwaite, Burn and Jessop Construction Co.Ltd. -vs- Abdul Gafoor and Ors., reported in 1986 Cal 128, after one witness of the plaintiff was examined and cross-examined, the suit was adjourned for further e vidence. On the adjourned date, the suit was again adjourned on the prayer of th e defendant. This time also, on the adjourned date, on the prayer of the defenda nt, the suit came to be adjourned and the next date was fixed on 20-11-1979. On that date, the defendant did not appear and the lawyer of the defendant informed the Court that he had no instructions. The plaintiff appeared and examined one more witness and thereafter, the evidence was closed. Subsequently, the plaintif f’s suit was decreed. The application filed by the defendant under Order IX Rule 13 CPC was dismissed as not maintainable on the ground that the suit was dispos ed of on its merits and not under Order IX CPC and, therefore, the defendant ha d no remedy under Order IX Rule 13 CPC. On appeal, the Calcutta High Court held that though the suit was disposed of on merits in favour of the plaintiff, it wa s so disposed of under provision of Order IX Rule 6 CPC inasmuch as reading Rule 2 along with the Explanation in the given situation, the Court had no alternati ve but to adopt the procedure under Order IX Rule 6 CPC and, therefore, an appli cation under Order IX Rule 13 CPC would be maintainable. 18. In B. Janakiramaiah Chetty -vs- A.K. Parthasarthi & Ors, reporte d in (2003) 5 SCC 641, scope and ambit of Explanation to Order XVII Rule 2 CPC c ame up for consideration. The facts were to the effect that on 08-07-1997, the evidence on the petitioner side was closed. On 15-11-1998, the evidence on be half of the respondents were also closed and the matter was posted for argument. In the meantime, applications were filed by the respondents for adducing addit ional evidence. On 23-06-1999, the original suit was called for final hearing. T he respondents were not represented on that date and a decree was passed. Applic ations were filed under Order IX Rule 13 for setting aside the decree dated 23-0 6-1999. The stand taken by the plaintiff before the Trial Court was that Order I X Rule 13 CPC was not applicable to the facts of the case on the ground that the matter was decided on merits and not ex-parte. The stand was rejected and the a pplications were allowed. The revision before the High Court was also dismissed. 19. The Supreme Court noted that the crucial expression in the Expla nation to Rule 2 of Order XVII CPC is (cid:28) where the evidence or a substantial port ion of the evidence of a party. (cid:29) It means that the evidence on record is suffi cient to substantiate the absentee party’s stand and for disposal of the suit. T he Supreme Court laid down that while acting under the Explanation, the Court h as to be satisfied on the facts of the case as to whether the evidence on record is sufficient to substantiate the absentee party’s stand and it would be impe rative for the Court to record its satisfaction in that perspective. Going by th e order passed by the learned Trial Court, the Supreme Court had concluded that the order had the imprint of an ex-parte adjudication and not of a decision on m erits as there was not even any indication as to what evidence was evaluated and /or whether the merits were tested and in the aforesaid view, the Supreme Court dismissed the appeal. In Ramusa Khatoon Mustt. and Ors. -vs- Durga Kakati and Ors., re 20. ported in 2007 (1)GLT 886, this Court was confronted with a question as to whe ther an application under Order IX Rule 13 CPC will lie to set aside a decree wh ich came to be passed consequent upon failure of the defendant to adduce eviden ce after the defendant had taken adjournment for adducing evidence. Another inci dental question was that if such an application lies, subject to what condition such a decree would be amenable to Order IX Rule 13 CPC. The learned Trial Court had set aside the ex-parte decree under Order IX Rule 13 CPC. This Court had he ld that though the suit had been disposed of on contest with costs by the learne d Trial Court, as the evidence of the defendant had not been recorded, the decre e granted was a decree under Order XVII Rule 2 CPC and the decree was an ex-part e decree, which could have been interfered with under Order IX Rule 13 CPC. 21. What is the meaning of appearance of a party at the hearing of t he suit has been dealt with by the High Court of Madhya Pradesh in the case of R ama Rao and Others Vs. Shantibai and others reported in AIR 1977 Madhya Pradesh 222. The Madhya Pradesh High Court has held that a mere conscious presence of th e party himself in the Court for participation therein when the case is called o ut, whether the party thereafter actively participates at the hearing or not, do es amount to appearance of that party at that hearing. In the case of personal presence of the party, it constitutes appearance even when he abstains from appe aring after refusal of an adjournment. The difficulty sometimes arises when the party is himself absent and the appearance is through his counsel. In such a sit uation, the real test to determine as to whether the party is present or not is to see whether the counsel has done any act at that hearing of the suit or was h is presence merely to inform the Court that he was not duly instructed to appear at that hearing on account of which there is no appearance of the party through him on that date. In such a situation, it would be a question of fact in each c ase to be answered with reference to the extent of authority of the counsel and the indication of the same given by him to the Court at or before commencement o f the hearing when the case is called out. 22. All 191, the facts were to the following effect: In case of Smti Gulab Bai Vs. Dr. Moti Lal reported in AIR 1983 After the issues had been framed on 07.09.1977, the first date o f hearing was fixed on 08.10.1977. On that date, the defendant applied for adjou rnment on account of illness and the Court fixed 16.11.1977 as the next date. On that date, the defendant moved an application by which the defendant prayed for filing handwriting experts’ report about the signature of the plaintiff on the receipt filed by her. Another application was moved for directing the plaintiff to give specimen signature so that the same may be sent for examination by an ex pert. Both these applications were directed to be put up on 22.12.1977. On that date, as the Presiding Officer was on leave, the suit was directed to be put up on 21.01.1978. Prior to that date, the defendant had moved an application on 07. 09.1977 for examination of the receipt signed by the plaintiff by a handwriting expert and for comparing the signature of the plaintiff thereof. There was no ob jection to this petition and on 21.07.1978, when the case was posted, the plaint iff prayed for time to file objection against the said petition. On the next dat e, the petition filed on 07.09.1977 came to be rejected. On the next date i.e. 1 9.04.1978, the defendant could not come and sought adjournment of the case and t he same was allowed on payment of Rs.75/- as costs. On the next date fixed also, the defendant’s counsel made an application contending that defendant was ill a nd the said application was rejected on the ground that the defendant was adopti ng dilatory tactics and the Court proceeded to decide the suit on merits and dec reed the same. In the appeal, the contention was that the Court had no jurisdic tion to proceed under Order XVII Rule 3 of CPC and the only mode available to th e Court was to proceed under Order XVII Rule 2 of CPC by either passing ex-parte decree or adjourning the suit.

#23. The Allahabad High Court had taken the view that when the defend ant is absent, no proceedings under Order XVII Rule 3 can be taken and that whe n any of the parties fails to appear on an adjourned hearing of the suit, the Co urt can proceed either under Order IX of the CPC or to adjourn the suit but wher e substantial portion of the evidence of a party had already been recorded and s uch party fails to appear on the adjourned date, then only the Court can proceed to decide the suit on merit even under Rule 2. It was also noted that Rule 3 ca nnot be resorted to where the parties or any of them is absent even though on th e previous date, the hearing of the suit was adjourned for granting to both or t o any one of them time to produce evidence or witnesses or perform any other act necessary to the further progress of the suit. It was further laid down that Ru le 3 can be only resorted to where the parties, to whom time was given to produc e evidence or to cause attendance of the witnesses or to perform any other act necessary for further progress of the suit is actually present on the adjourned date of hearing but fails to do any of the act for which time was granted. For t his purpose, the fictional presence envisaged by the Explanation to Rule 2 is no t to be taken into consideration. It is only the factual presence which is to be taken into account.

#24. In the facts of the case, taking note of the fact that neither a ny evidence had been recorded, either on behalf of the plaintiff or on behalf of the defendant, nor the defendant was physically present in Court on the date in question, the High Court held that application of Order XVII Rule 3 was clearly excluded and the only course open to the Court was to proceed under Order XVII Rule 2. 25. In Kuri Lal Rungta-vs- Smti Banarsi Devi and Ors, reported in AIR 1986 All 94, an adjournment application having been rejected, which was filed on behalf of the defendant, the learned counsel moving the adjournment applic ation left the Court on the ground that he had no further instructions from the defendant other than to move the adjournment application. The learned Trial Cour t proceeded to decide the case under Order XVII Rule 3 CPC and in such circumsta nces, the contention was advanced before the High Court that the defendant can n ot be taken to be present on the said date of hearing and the provision of Order XVII Rule 3 CPC cannot be invoked for deciding the case on merits after taking evidence of the plaintiff. Contention was also advanced that the impugned judgem ent and decree can at best be treated to have been passed under Order XVII Rule 2 CPC. The High Court held that if the parties are not present and any of them i s absent, the Court can proceed to decide the suit under Rule 2 and not under R ule 3 of order XVII CPC. Taking note of the Allahabad High Court amendment, wher ein, an Explanation had been added to Rule 2 to the effect that no party shall b e deemed to have failed to appear if he is either present or represented in Cour t by an agent or pleader, though engaged only for the purpose of making an appli cation, the Court proceeded to hold that where a party had engaged counsel to ma ke an application for adjournment of the case, the case will be covered by Order XVII Rule 3 CPC only in case he had failed to do any of the act envisaged by O rder XVII Rule 3 and in such circumstances, the party would not be taken to be a bsent but would be deemed to be present in view of the Explanation added to Orde r XVII Rule 2 CPC. 26. In M.V. George -vs- SMR Traders and Ors, reported in AIR 1980 K er 100, the Kerela High Court had ruled that Order XVII Rule 3 CPC contemplates a judgement on merits. It is also laid down that power of the Court to proceed t o decide the suit under Order XVII Rule 3 CPC is restricted now to cases where t he parties are present and if any of the parties happened to be absent, the Cour t is to proceed under Order XVII Rule 2. It is also laid down that if the Expla nation to Rule 2 CPC is attracted, the Court may proceed to dispose of the suit as if the parties are present and that the Explanation would be attracted to a case where the evidence or substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which hearin g of the suit is adjourned. In a case where, invoking the Explanation, the Court proceeds to deal with the case on the merits on finding that the conditions to attract the explanation are present, the disposal is not under Order IX and in such a case, there is no question of reopening the decree by resorting to Order IX CPC. 27. In Smti Gulab Devi -vs- Smti Premwati, reported in AIR 1996, A ll 22, the Allahabad High Court held that for warranting the application under O rder XVII Rule 3 CPC, it is essential that the Court could proceed only when th e parties were present, meaning thereby, all the parties to the suit. Taking not e of the fact that the counsel for one of the defendants withdrew from the proce eding and left the Court after the application for adjournment was dismissed, it was held that he was not present in the Court as required by provision of Orde r XVII Rule 3 (a). 28. In Mohandas and Ors -vs- Ghisia Bai and Ors, reported in AIR 200 2 SC 2436, the basic facts were that 3rd May, 1994 was the date fixed for adduc ing evidence by the plaintiff. Instead of leading evidence, the plaintiff filed an application for seeking better particulars of the written statement. The said application was rejected and immediately thereafter, an application was moved u nder Order XVII Rule 16 for deletion of certain paragraphs of the written statem ent. The said application was also rejected. On 7th May, 1994 the plaintiff rema ined absent. The counsel for the plaintiff on the said date moved an application for a short adjournment for filing revision against the order passed on 3rd May , 1994 rejecting the application of plaintiff. The said application for adjournm ent was dismissed. Thereafter, the counsel for the plaintiff moved an applicatio n on the ground that the plaintiff is seriously ill and, therefore, the case may be adjourned. The said application was also rejected. Thereafter, the trial Cou rt dismissed the suit under Order XVII Rule 3 of the CPC. The plaintiff preferre d a first appeal before the first appellate Court, but the same was dismissed. T he second appeal preferred by the plaintiff also met with the same fate. The Hig h Court was of the view that the suit was dismissed not under Order XVII Rule 2 CPC but was dismissed under Order XVII Rule 3 CPC. On the face of the aforesaid facts, the Supreme Court held that as neither the plaintiff nor his witnesses w ere present on 07-05-1994, the case had to be dismissed under Order XVII Rule 2 CPC. The Apex Court also emphasised that Rule 3 itself provides that if the part ies or any of them is absent, the Court shall proceed to decide the suit under O rder XVII Rule 2 CPC. 29. In the instant case, no evidence was recorded. The plaintiff was also not present on 25.6.2004 when the suit was dismissed. In fact, on that dat e, a petition was filed praying for adjournment on the ground that plaintiff was ill. Filing of the petition for adjournment by the counsel cannot be construed to mean that the party was present through his counsel. In view of the law as di scussed above, the only course open for the Court as mentioned in Order XVII Ru le 3 (b) is to proceed under Rule 2. The right to proceed to decide on the merit s in case of default of appearance of party is taken out of Order XVII Rule 3 CP C. However, such a right has been conferred in restricted cases by the Explanati on to Order XVII Rule 2. Even though the learned trial Court had held that the s uit was dismissed by an order passed under Order XVII Rule 3 of CPC, facts of th e case clearly go to show that prerequisite for application of Order XVII Rule 3 CPC was not satisfied. The disposal, in the instant case, is a disposal under O rder XVII Rule 2 CPC though the order purported to be one of merits on the groun d of want of evidence. As such, the decree passed would be a decree under Order IX and therefore, the decree could be set aside by taking recourse to Order IX R ule 9 CPC. The learned Court below was not correct in holding that order dated 2 6.6.2004 was an order passed under Order XVII Rule 3 of CPC and in dismissing th e application under Order IX Rule 9 read with Section 151 CPC as not maintainabl e by the order dated 05.08.2005. In the facts and circumstances of the case, the application under Order IX Rule 9 CPC is maintainable. In view of the aforesaid discussions, the order dated 05.08.2005 30. , passed by the learned Additional District Judge, Nagaon in M.J. Case No.120/04 is set aside. The learned trial Court will now consider the petition under Orde r IX Rule 9 read with Section 151 CPC for restoration of T.S.(D) No.31/02 on mer its in accordance with law. The parties will appear before the learned trial Cou rt on 26.9.2012. 31. The appeal stands partly allowed. No costs.

#32. Send down the LCR forthwith.