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PETITIONER: PRAKASH CHANDER MANCHANDA AND ANR.

       Vs.

RESPONDENT: SMT. JANKI MANCHANDA

DATE OF JUDGMENT18/11/1986

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) REDDY, O. CHINNAPPA (J)

CITATION:  1987 AIR   42            1987 SCR  (1) 288  1986 SCC  (4) 699        JT 1986   889  1986 SCALE  (2)844

ACT:     Civil procedure Code, 1908--Order 9 Rule 13 and Order 17 Rule  2 and 3--Plaintiff’s evidence  over--Defendant’s  evi- dence to begin-Neither defence witnesses nor any one present on   behalf  of  defendant-Procedure  to  be   followed   by Court--Ex-parte decree--Setting aside of.

HEADNOTE:     In  a suit in which the appellant was  defendant,  after the  plaintiff’s  evidence was over, the  defendant  was  to begin his evidence on 24th January, 1985. As no witness  was present, at the request of defendant’s counsel the case  was adjourned to 7th May, 1985. On that day, the case was trans- ferred to another Court and the transferee Court ordered the case to be put up on 21st August, 1985. It being a  holiday, the  case  was put up on 22nd August, 1985 when it  was  ad- journed  to  30th  October, 1985. On that day,  no  one  was present for the defendant. The case was again taken up at  1 p.m. but the situation remained the same. Since none of  the witnesses  for  defendant  was also  present,  evidence  was closed  and case fixed for arguments for 1st November  1985. On this date also nobody appeared for the defendant and  the case  was  adjourned  to 8th November, 1985.  On  that  day, arguments of the plaintiff’s counsel were heard and as  none was  present for defendant, the case was fixed for  judgment on 11th November, 1985. On this date also nobody was present for defendant and since judgment was not ready it was  post- poned to 21st November, 1985. On this date the judgment  was dictated, pronounced and decree was ordered to be prepared.     The defendant filed an application under Order 9 Rule 13 of  the Code of Civil Procedure, 1908 for setting aside  ex- parte  decree  urging that he came to know about  decree  on 18th  January, 1986 when the plaintiff came to take  posses- sion. The trial Court dismissed the application holding that it was not maintainable because the case was disposed of not in  accordance with Order 17 Rule 2, but in accordance  with Order  17  Rule 3. An application for review was  also  dis- missed by the Trial Court. The first appeal too was summari- ly dismissed by the High Court. Allowing the appeal, 289

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   Held: 1. The order passed by the High Court and also the trial Court rejecting the application of the appellant under Order  9  Rule 13 of the Civil Procedure Code 1908  are  set aside  and  the trial Court is directed to  dispose  of  the application in accordance with law. [294C]     2.  In cases where a party is absent, only course is  as mentioned  in  Order 17(3)(b) to proceed under Rule  2.  The language of amended Rule 2 also 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 case where a party  which  is absent  has  led some evidence or has  examined  substantial part  of their evidence. Therefore, if on a date fixed,  one of the parties remains absent and for that party no evidence has been examined upto 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 of  the  Code of Civil Procedure. After  this  amendment  in Order  17 Rules 2 and 3 in 1976 there remains no doubt,  and therefore,  there  is  no possibility  of  any  controversy. [292H-293C]     3.  In the present case, on 30th October 1985  when  the case  was called nobody was present for the  defendant,  and till  that date the plaintiff’s evidence had  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 upto  30th October 1985 when the trial Court closed the case of defend- ant  there was no evidence on record on his  behalf.  There- fore, the Explanation to Order 17 Rule 2 was not  applicable at  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. [293D-E]     4.  Order 17 Rule 3 as it stands was not  applicable  to the  facts of this case as admittedly on the date  when  the evidence of the defendant was closed nobody appeared for the defendant  and,  therefore, the Court when it  proceeded  to dispose  of the suit on merits had committed an error.  Even on  the review application, the trial Court went on  in  the controversy  about  Order  17 Rules 2 and  3  which  existed before the amendment and rejected the review application and on  appeal, the High Court also unfortunately dismissed  the appeal in limine by one word. [293F-G]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2847  of 1986 290     From the Judgment and Order dated 1.8.1986 of the  Delhi High Court in F.A.O. No. 146 of 1986. Soli  J.  Sorabjee, E.C. Agarwala and Lalit for  the  Appel- lants.     T.S.K. Iyer, B.P. Maheshwari, V.N. Ganpule, S.K. Agniho- tri and J. Singh for the Respondent. The Judgment of the Court was delivered by     OZA, J. This appeal arises as a result of leave  granted by  this  Court against the summary dismissal of  the  first appeal by the appellant before the High Court of Delhi.  The first appeal was filed against an order passed by Sub  Judge 1st Class, Delhi rejecting the review petition filed by  the

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petitioner.  The facts necessary for disposal of  this  case are  that in a suit filed against the present  appellant  in the Court of Sub Judge 1st Class, Delhi when the matter  was fixed  for  evidence  of the defendant  as  the  plaintiff’s evidence was over and defendant-present appellant’s evidence was  to  begin when the case was taken up on  24th  January, 1985.  The  order-sheet  of the Court shows that  no  DW  is present  and at the request of the counsel of the  defendant the  case was adjourned to 7th May, 1985. It is stated  that on  this date for some reason, the. case was transferred  to another  board and in the transferee court, the  order-sheet showed  presence of the counsel for parties and  it  further shows  that  as  the case was received on  transfer  it  was ordered to be put up on 21st August, 1985.     Learned  counsel for the appellant disputed the  mention in  these proceedings about the presence of the  counsel  of the defendantappellant. But in any event as it is not impor- tant for the decision of this appeal it is not necessary  to go into that question.     On 21st, August, 1985 it appears that there was a  holi- day  and  therefore the case was put up before  the  learned Judge  on  22nd August, 1985 and it was  postponed  to  30th October,  1985  for the evidence of the defendant.  On  30th October,  1985 the order-sheet showed that the  counsel  for plaintiff was present but no one was present for the defend- ant. The Court therefore directed the case to be taken up at 1 P.M. At 1 P.M. again the situation remained the same as it is  clear from the order-sheet. It also shows that  none  of the  witnesses for defendant was also present and  therefore the  Court passed the order: "the case was called  but  none has appeared on behalf of the defendant and no DWs  present. The evidence of defendant closed. 291 Now  to come up for arguments." The next date fixed was  1st November,  1985. On this date also nobody appeared  for  the defendant  and  counsel for the plaintiff  who  was  present sought adjournment and the case was adjourned to 8th  Novem- ber, 1985. On 8th November, 1985 arguments of the plaintiffs counsel were heard and as none was present for the defendant the  case was fixed for judgment on 11th November, 1985.  On this date also counsel for the plaintiff was present. Nobody was present for the defendant and order-sheet shows that  as judgment  was not ready it was postponed to  21st  November, 1985.  On 21st November, the judgment was dictated and  pro- nounced  and  the order-sheet also shows  that  the  learned Judge  ordered decree to be prepared. It appears that  after this the defendant claimed that they came to know about  the decree  on 18th January, 1986 as on that day  the  plaintiff came  to take possession and therefore filed an  application under  Order 9 Rule 13 for setting aside the exparte  decree which was dismissed by the trial court holding that the case was  disposed of not in accordance with Order 17 Rule 2  but in accordance with Order 17 Rule 3 and therefore the  appli- cation under Order 9 Rule 13 was not maintainable.     The appellant-defendant thereafter filed an  application for  review but that application also was dismissed  by  the trial  court. Thereafter the first appeal Was  filed  before the High Court of Delhi which was dismissed summarily by the impugned order.     Learned  counsel  for parties submitted  at  length  the controversy  that  existed before the amendment of  Code  of Civil Procedure in 1976 about the interpretation of Order 17 Rule 2 and Order 17 Rule 3. Apparently there were two views. one was that Order 17 Rule 3 could be used for deciding  the matter  on merits if the party is present but has failed  to

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do what was expected of that party to do and this rule could not  be  used against a party who was  present  whereas  the other view was that even if a party is absent but has failed to do what was expected of him then it was the discretion of the  Court either to proceed under Order 17 Rule 2 or  under Order 17 Rule 3.     In  some  decisions, the High Courts have  gone  to  the extent  of saying that even if the trail 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  dis- posal  in accordance with Order 17 Rule 3 and provisions  of Order 9 will be available to such a party either for  resto- ration  or  for  setting aside an  exparte  decree.  Learned counsel placed before us a 292 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  Code of Civil Procedure it is not disputed that to  the facts of this case, Code of Civil Procedure as amended  will be applicable and therefore it is not necessary for us to go into  that question. Order 17 Rule 2 and Rule 3 as they  now stand reads:               "Order  17, Rule 2: Procedure if parties  fail               to appear on day fixed:                          Where,  on  any day  to  which  the               beating 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 of 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.               Order  17 Rule 3: Court may  proceed  notwith-               standing  either party fails to  produce  evi-               dence, 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  neces-               sary 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." 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 defend- ant, the Court had no option but to 293 proceed  under Rule 2, Similarly the language of Rule  2  as now  stands  also clearly lays down that if any one  of  the parties fail 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

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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 upto 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 of the Code of Civil Procedure.  It is  therefore  clear that after this amendment in  Order  17 Rules  2 and 3 of the Code of Civil Procedure there  remains no  doubt and therefore there is no possibility of any  con- troversy.  In this view of the matter it is clear that  when in  the present case on 30th October 1985 when the case  was called  nobody  was present for the defendant.  It  is  also clear  that till that date the plaintiffs 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 upto the date i.e. 30th October, 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  there- fore  the explanation to Order 17 Rule 2 was not  applicable at  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.     It  is also clear that Order 17 Rule 3 as it stands  was not  applicable to the facts of this case as  admittedly  on the  date when the evidence of defendant was  closed  nobody appeared  for the defendant. In this view of the  matter  it could  not’  be disputed that the Court  when  proceeded  to dispose of the suit on merits had committed an error. Unfor- tunately  even on the review application, the learned  trial Court went on in the controversy about Order 17 Rules 2  and 3 which existed before the amendment and rejected the review application and on appeal, the High Court also unfortunately dismissed the appeal in limine by one word.     The  learned  counsel for the  respondent  attempted  to contend that in this view of law as it now stands an  appli- cation  under Order 9 Rule 13 will be maintainable.  However it was suggested that there was also an objection of limita- tion about the acceptance of that applica- 294 tion.  It is apparent that the learned trial Court  has  not considered  the application on merits but has only  rejected it  as not maintainable and that order has been  maintained. This objection of the learned counsel for the respondent  is not necessary for us to go into at this stage as in view  of the law discussed above, the order rejecting the application as not-maintainable, has to be set aside and it will be open to the learned trial Court to consider the application under Order  9 Rule 13 and dispose it of in accordance  with  that law  and while so doing, it may even examine the  objections that may be raised by the respondent.     The  appeal is therefore allowed with costs.  The  order passed  by Hon’ble the High Court and also the  trial  court rejecting  the  application of the appellant under  Order  9 Rule  13  is set aside and it is directed that  the  learned trial court will proceed to hear and dispose of the applica- tion under Order 9 Rule 13 filed by the appellant in accord- ance with law. A.P.J.                                          Appeal   al- lowed. 295

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