Research › Browse › Judgment

Allahabad High Court · body

1968 DIGILAW 188 (ALL)

Ratan Chand Gulati v. Brij Bhushan Lal

1968-04-24

D.S.MATHUR

body1968
ORDER D.S. Mathur, J. - This is a revision u/s 115 CPC by Ratan Chand Gulati, Defendant, against the order dated 28-11-1964 of Havali Munsif, Saharanpur, allowing the Plaintiff's application Under Order IX, Rule 9 CPC on payment of Rs. 10/- as costs. 2. The material facts of the case are that issues in the suit were struck on 16-3-1964 when 19-5-1964 was fixed for final hearing, that is, for the recording of the evidence of the parties. On that date the Plaintiffs counsel moved an application for adjournment and when the application was rejected, he reported 'no instructions'. Thereupon the Munsif dismissed the suit. The Plaintiff, Brij Bhushan Lal, then moved an application Under Order IX, Rule 9 CPC for setting aside the order of dismissal and for restoration of the suit. The order of dismissal was deemed to have been passed Under Order IX, CPC and not Under Order XVII, Rule 3 CPC and the Munsif held under order dated 31-10-1964 that the restoration application Under Order IX, Rule 9, CPC was maintainable. The restoration application was eventually allowed under order dated 28-11-1964 and the suit was restored subject to payment of Rs. 10/- as costs by 7-12-1964. 3. The learned Advocate for the Plaintiff-opposite party has raised a preliminary objection to the maintainability of the revision. It is contended that when the Defendant Applicant submitted to the order dated 31-10-1964, he could not later reagitate the question of the maintainability of the restoration application. No one can claim, as a matter of right, that the High Court must exercise the revisional jurisdiction u/s 115 Code of Civil Procedure. Even when there exists some defect in the exercise of jurisdiction, the High Court may refuse to modify the order of the subordinate court if it appears that no injustice has been done or the setting aside of the order shall bring on record an illegal order. It is also a matter of common knowledge that the High Court is reluctant to interfere u/s 115 CPC where only an interlocutory order has been passed and the matter has not been finally decided. In the past the re-visional jurisdiction was not exercised unless the case had been finally decided and in pursuance of these decisions the order dated 31-10-1964 of the Munsif could not be challenged in revision. In the past the re-visional jurisdiction was not exercised unless the case had been finally decided and in pursuance of these decisions the order dated 31-10-1964 of the Munsif could not be challenged in revision. However, after a Supreme Court decision a more liberal view is taken and the revisional jurisdiction is some-times exercised in cases where a writ of certiorari could be issued. In other words, the Defendant did not rightly challenge in revision the interlocutory order dated 31-10-1964. 4. The material point for consideration is whether the words "on any day to which the hearing of the suit is adjourned" used in the first part of Order XVII, Rule 2, CPC include the first date of final hearing, that is, for recording of evidence, fixed after the framing of the issues: if so, by virtue of the Explanation to this rule, added by the Allahabad High Court, a party represented in Court by an agent or pleader, though engaged only for the purpose of making an application, shall be deemed to be present and not to have failed to appear and hence any decree passed shall not be in default or ex parte and no restoration application Under Order IX, shall be maintainable. 5. The learned Advocate for the Plaintiff-opposite party has placed reliance upon the Division Bench decision of this Court in Tilak Singh Vs. Pradyumna Singh and Others, AIR 1937 All 347 ; but for reasons to be given hereinafter I am in respectful disagreement with the view expressed therein. If this decision can still be deemed to lay down the correct law, it shall be binding on me in the sense that if I differ I must make a reference to a larger Bench. I, however, find that this decision stands overruled by the Supreme Court decision in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, AIR 1955 SC 425 . The point that came up for consideration before the Supreme Court was whether on the date fixed for the settlement of issues an ex parte decree could be passed on the Defendant failing to appear in Court. One of the points considered in this connection was whether the date fixed for the settlement of issues was the date of first hearing. One of the points considered in this connection was whether the date fixed for the settlement of issues was the date of first hearing. Their Lordships of the Supreme Court made a reference to' the provisions of Orders V, VIII and IX CPC and observed, not at one but at two places, that the rules contained in the First Schedule of the CPC drew a distinction between the first hearing and subsequent hearings and that the first hearing could be either for settlement of issues only, or for final disposal of the suit. In the circumstances, Tilak Singh v. Pradyumna Singh (supra) cannot be said to lay down the correct law and without referring the matter to a larger Bench, I can adopt the view expressed in Sangram Singh v. Election Tribunal (supra). 6. In order to support the view being taken, reference can be made to the other provisions of the Code of Civil Procedure. Once the point has been decided by the Supreme Court, it is not necessary for the High Court to give additional reasons for that view; but because the matter has been considered by the Supreme Court in another connection, I can give additional reasons to bring on record why the observations made by the Supreme Court are not mere obiter dicta, but express the law to be applied to each and every case. 7. Order XVII, CPC bears the heading "Adjournments" and Rule 2 thereof applies where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The two important words used in this rule are "hearing" and "adjourned". Is a date fixed for settlement of issues and on which date merely issues are framed, a date of hearing of the suit? Further, whether the adjournment contemplated by Order XVII, Rule 2 CPC must be for the same purpose or it can be for a different purpose? Order V, Rule 1 CPC provides that-- When a suit has been duly instituted a summons may be issued to the Defendant to appear and answer the claim on a day to be therein specified. The date so fixed can be for settlement of issues only, or for the final disposal of the suit (Order V, Rule 5 Code of Civil Procedure). The date so fixed can be for settlement of issues only, or for the final disposal of the suit (Order V, Rule 5 Code of Civil Procedure). For whatever purpose the date is fixed, it is a date for the appearance of the Defendant to appear and answer the claim on such day (Order V, Rule 6, Code of Civil Procedure). What is meant by "to appear and answer" is evident from Order V, Rule 7 CPC and also from other provisions to which a reference shall be made in due course. Order V, Rule 7, CPC provides that-- The summons to appear and answer shall order the Defendant to produce all documents in his possession or power upon which he intends to rely in support of his case. Where the date fixed is for the final disposal of the suit, further direction as contemplated by Order V, Rule 8 CPC has to be given, namely, a direction to the Defendant to produce, en the date fixed for his appearance, all witnesses upon whose evidence he intends to rely in support of his case. Under Order VIII, Rule 1, CPC the Defendant can file written statement at or before the first hearing, which can be the date for the settlement of issues only. Ch. IX bears the heading "Appearance of parties and consequence of nonappearance". Rule 1 thereof provides that "on the date fixed in the summons for the Defendant to appear and answer, the parties shall be in attendance in person or by their respective pleaders and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court." The hearing of the suit is postponed Under Order IX, Rule 6(1)(c) Code of Civil Procedure. Rules 1 and 6 of Order IX clearly suggest that the date of hearing is not necessarily the date of final hearing of the suit. Order X governs "Examination of parties by the Court". Rule 1 thereof makes a provision for ascertaining facts from the parties or their pleaders at the first hearing of the suit. It is then ascertained whether the party admits or denies an allegation of fact as made in the plaint or written statement, as has not been expressly or by necessary implication, admitted or denied by the party against whom it was tirade. It is then ascertained whether the party admits or denies an allegation of fact as made in the plaint or written statement, as has not been expressly or by necessary implication, admitted or denied by the party against whom it was tirade. Rule 2 governs the examination of the parties on the first date of hearing, for at any subsequent hearing. Such examination, whether Under Rule 1 or Rule 2, is invariably done before the framing of the issues as would also appear from Order XIV, Rule 1(5) CPC also. Similarly, Order XIII, R. 1(1) CPC lays down that-- That parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely and which has not already been filed in Court and all documents which the Court has ordered to be produced. Such documents have to be filed before striking the issues. This would be evident not only from the object and purpose of the provision but also from the fact that the provision for settlement of issues has been made in a subsequent Order. Further, the issuers are framed Under Order XIV, CPC subsequent to the deter-ruination of the matters in controversy and after examination of the parties Under Order X, Code of Civil Procedure, if necessary. Any controversy that may have existed on the point is set at rest by Sub-rule (5) of Order XIV, Rule 1 Code of Civil Procedure. It provides that-- At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. Similar inference can be drawn from Order XV, Rules 1 and 3, Code of Civil Procedure. Where at the first hearing of the suit it appears that the parties are not at issue on any question of law or of fact, the Court can at once pronounce judgment (Order XV, Rule 1 Code of Civil Procedure). Similar inference can be drawn from Order XV, Rules 1 and 3, Code of Civil Procedure. Where at the first hearing of the suit it appears that the parties are not at issue on any question of law or of fact, the Court can at once pronounce judgment (Order XV, Rule 1 Code of Civil Procedure). Where the finding on some issues is sufficient for the decision of the suit, the Court can pronounce judgment even when the summons has been issued for the settlement of issues only (Order XV, Rule 3(1) Code of Civil Procedure). In other cases, further hearing of the suit is postponed. 8. It is thus clear that the first date of hearing of the suit is the date fixed for appearance, whether for the settlement of issues only, or for final hearing and the subsequent dates are the dates of further hearing of the suit. 9. As already indicated above, the Court can pronounce judgment, irrespective of whether the summons had been issued for the settlement of issues only, or for the final disposal of the suit, if the finding on some issues is sufficient for the decision of the suit. In other cases the Court has to postpone the further hearing of the suit. The words "postpone the further hearing of the suit" used in Order XV, Rule 3(2) CPC make it clear that the postponed or adjourned date of hearing need not be for the same purpose for which the earlier date had been fixed. The hearing of the suit as contemplated by the CPC is a continuing process starting from the date of appearance of the Defendant. The date of appearance is the first date of hearing and the others are the dates of further hearing and whenever the suit is not disposed of on the first date of hearing, there is postponement or adjournment of hearing. The ordinary meaning of the word "adjourn" as given in the Shorter Oxford English Dictionary, 2nd Edition, is "to put off or defer proceedings to another day". It is not necessary that the work to be done on the adjourned date or the purpose for which adjournment is granted must be the same. The ordinary meaning of the word "adjourn" as given in the Shorter Oxford English Dictionary, 2nd Edition, is "to put off or defer proceedings to another day". It is not necessary that the work to be done on the adjourned date or the purpose for which adjournment is granted must be the same. What is necessary is that the work to be done on the next day must be a part of the proceeding, in other words, a step necessary for the decision of the suit. The framing of issues and the recording of evidence are parts of the process of the decision of the suit. In this view of the matter, the date fixed for final hearing after the settlement of issues on an earlier date is a date for further hearing and it is also a date to which the hearing of the suit had been adjourned. Order XVII, Rule 2 CPC shall, therefore, apply even to cases where the date or dates fixed for final hearing had been fixed for the first time. What is necessary is that a date for appearance, may be for settlement of issues only, had been fixed earlier. 10. The Plaintiffs counsel had, on the date fixed for final hearing, moved an application for adjournment and it was after the request was refused that he reported 'no instructions' and withdrew from the case. The Explanation to Order XVII, Rule 2 CPC governs such a case. The counsel was admittedly engaged for the purpose of making an application and consequently by virtue of the Explanation the Plaintiff shall not be deemed to have failed to appear in Court and hence the decree passed (dismissal of the suit) shall be on merits and not in de fault. 11. In this connection it was contended that Under Order XVII, R 2 CPC the Court can dispose of the suit on merits (vide the second clause of the rule) only when the evidence, or a substantial portion of the evidence, of the party has already been recorded and even then such party fails to appear. It is said that in other circumstances the Court has no option except to proceed Under Order IX, Code of Civil Procedure, or to adjourn the hearing. This contention is negatived by the wording of the rule. It is said that in other circumstances the Court has no option except to proceed Under Order IX, Code of Civil Procedure, or to adjourn the hearing. This contention is negatived by the wording of the rule. What the second clause lays down is that the Court may proceed with the case as if such party were present. This is another instance, similar to the Explanation to Order XVII, Rule 2, Code of Civil Procedure, where the party is deemed to be present, i.e., not to have failed to appear and the natural consequence is that on deeming the party to be present the suit is disposed of on merits. Similar consequences shall follow when the party is deemed to be present under the Explanation to Order XVII, Rule 2, Code of Civil Procedure. 12. To sum up, when a date is fixed for final hearing after the settlement of issues, that date so fixed is the date to which the hearing is adjourned and Order XVII, Rule 2, CPC applies. Consequently, the Court can, in fact, should, dispose of the suit on merits if the case falls under the second clause of Order XVII, Rule 2, CPC or is covered by the Explanation thereto. In the instant case, the Plaintiff was represented in Court by a pleader though engaged only for the purpose of making an adjournment application and hence he (Plaintiffs was present and cannot be deemed to have failed to appear. In the circumstances, the order dismissing the suit was on merits, one for want of evidence and not in default and the only remedy available to the Plaintiff was to prefer an appeal against the decree and not a restoration application Under Order IX, Code of Civil Procedure. 13. The Munsif has thus taken an erroneous view of the law and exercised jurisdiction not vested in him. 14. The revision is hereby allowed and both the orders dated 31-10-1964-and 28-11-1964 of Havali Munsif, Saharanpur, are set aside. The restoration application Under Order IX, Rule 9, CPC shall stand dismissed, though it shall be open to the opposite party to take such other legal steps as he may be advised. Costs easy. Stay order is vacated.