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2002 DIGILAW 115 (CAL)

GURU CHARAN SINGH v. PRAJIT KUMAR MITRA

2002-02-21

S.B.BHATTACHARJEE

body2002
B. BHATTACHARYA, J. ( 1 ) THIS revisional application is at the instance of defendant in a suit for eviction and is directed against an order dated April 25,2000 passed by the learned civil Judge, Senior Division, 4th Court, Alipore in Misc. Appeal No. 524 of 1999 thereby affirming order No. 73 dated September 30,1999 passed by the learned Civil Judge, junior Division, 3rd Court, Alipore in Misc. Case No. 129 of 1997. ( 2 ) THE opposite parties brought the aforesaid suit against the petitioner for eviction. The suit was contested by the present petitioner by filing written statement. ( 3 ) ON January 2, 1977 plaintiff's cross-examination was closed and thereafter the defendant started giving evidence. On that day in examination-in-chief only two questions were put. In answer to the first question he said that he was a driver by profession and in answer to the second question, the defendant stated that he was residing at 17d, Hazra Road; thereafter the Court adjourned the matter suo motu fixing April 10,1997 for further hearing. On that day both parties filed hazira but said Presiding officer was on leave, as a result, the judge-in-Charge fixed April 28, 1997 for further peremptory hearing. ( 4 ) ON April 28, 1997, both the parties filed hazira and at 11. 10 am. when the matter was called, the plaintiff was present but the defendant was found absent on call. The court therefore granted adjournment for ten minutes with a direction for putting up the file at 11. 20 am. ( 5 ) AT 11. 20 am the plaintiff with his learned advocate was present but as defendant was not found, his evidence was declared as closed and the court fixed for argument on the selfsame date. Thereafter, the court heard the argument of the learned advocate for the plaintiff and marked April 29, 1997 for delivery of judgment. ( 6 ) AFTER the passing of the aforesaid order , the petitioner filed an application under section 151 of the Code of Civil Procedure thereby stating that he was present in Court from 10. 30 am, but his Senior Advocate Mr. B. K. Pal was engaged in the 6th Court of learned Assistant District Judge at Alipore in connection with hearing of a Misc. Appeal being misc. Appeal No. 273 of 1995 and he arrived before the court at 11. 30 am. 30 am, but his Senior Advocate Mr. B. K. Pal was engaged in the 6th Court of learned Assistant District Judge at Alipore in connection with hearing of a Misc. Appeal being misc. Appeal No. 273 of 1995 and he arrived before the court at 11. 30 am. when the learned court had closed the evidence of D. W. 1 and had already heard the argument. He, thus, prayed for recalling the previous order for the purpose of giving him an opportunity of hearing. The learned trial Judge however merely recorded that the said application might be kept with the record. On the next date, the learned trial Judge decreed the suit 'on contest' thereby directing the petitioner to vacate the property. ( 7 ) SUBSEQUENTLY, the petitioner filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the aforesaid decree. The said application under Order 9 Rule 13 of the Code of Civil Procedure gave rise to Misc. Case No. 19 of 1997. ( 8 ) ULTIMATELY, by Order No. 73 dated September 30, 1999, the learned trial Judge dismissed the said Misc. Case as misconceived and not maintainable on the ground that the decree having been passed 'on contest', there was no scope of filing any application under order 9 Rule 13 of the Code of Civil Procedure. ( 9 ) BEING dissatisfied, the present petitioner preferred an appeal before the learned first appellate court below and by the order impugned in this application the said Court has affirmed the order passed by the learned trial judge thereby holding that the application under Order 9 Rule 13 of the Code was not maintainable and that it was the duty of the petitioner to prefer regular appeal against the decree as the same was a contested one. ( 10 ) BEING dissatisfied, the defendant has preferred the instant revisional application. ( 11 ) MR. Mahato, the learned counsel appearing on behalf of the petitioner has contended before this Court that on April 28,1997 when the petitioner was not present, the learned trial Judge could not pass any decree on contest inasmuch as on the previous date no adjournment was prayed on behalf of his client but it was the court which suo motu adjourned the matter. Mr. Mr. Mahato further submits that only two sentences were recorded in examination-in-chief of the petitioner and thus it cannot be contended that a 'substantial portion of the evidence' of the petitioner was recorded. According to Mr. Mahato under such circumstances, the court could not pass any decree on contest and the court could only pass ex parte decree. Therefore, according to Mr. Mahato even though the decree was described as a 'contested decree', In reality, the same was ex parte one and as such application under order 9 Rule 13 of the Code was maintainable. ( 12 ) MR. Banerjee, the learned counsel appearing on behalf of the opposite party on the other hand has supported the orders passed by the learned courts below and has contended that once the decree has been recorded as a contested decree, an application under Order 9 Rule 13 of the Code was not maintainable and it was the duty of the petitioner to prefer regular appeal. Mr. Banerjee contends that a court dealing with an application under Order 9 Rule 13 of the Code cannot consider whether under such circumstances court could pass a contested decree. Such question can be raised only before an appellate court in a regular appeal preferred against decree. Therefore, according to Mr. Banerjee, the learned courts below rightly held that the application under order 9 Rule 13 of the Code was not maintainable. ( 13 ) FOR the purpose of appreciating the question involved in this application it is necessary to refer to the provisions contained in order 17 Rule 2 and Order 17 Rule 3 of the code which are quoted below:-"order 17 Rule 2. Procedure of 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 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 parties were present. Order 17 Rule 3. 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 parties were present. Order 17 Rule 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 suits, 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". ( 14 ) THE aforesaid two provisions, if read conjointly, may be summarized thus : if time has been granted to a party for the purpose of either producing his evidence or causing attendance of his witness or for performing any other act necessary for further progress of the suit but the said party on the date fails to produce his evidence or cause attendance of his witness or to perform such act for further progress of the suit, the court may notwithstanding such default proceed to decide the suit forthwith if the parties are present but if the parties are or any of them is absent, proceed under Rule 2. ( 15 ) IF on the other hand, no time as mentioned in Rule 3 has been granted to any party but the suit is fixed on an adjourned date for any other reason, but the parties or any one of them failed to appear, the court may either proceed under Order 9 of the Code or may make such order as it thinks fit, meaning, either it can adjourn the matter, or if the evidence or a substantial portion of the evidence of any party has been recorded and such party fails to appear on that day the court may proceed as if such parties were present. ( 16 ) SINCE, in the present case April 28, 1997 was an adjourned date but previous adjournment was not taken by the defendant, order 17 Rule 3 cannot have any application and Order 17 Rule 2 applies to the present case. Even if, Order 17 Rule 2 applies, it is not necessary that in the absence of defendant, the court must proceed under Order 9 of the code. The explanation added to Order 17 Rule 2 gives discretion to the court to proceed as if parties were present, if substantial portion of the evidence of the defaulting party is already recorded. In the instant case therefore the court could pass contested decree only if it is established that the substantial portion of the evidence on behalf of the defendant has already been recorded. 1 have already indicated that on the previous date the examination-in-chief of the defendant just started and two questions were answered. In answer to the first question he disclosed his profession and in an answer to the second one he mentioned his place of residence. Therefore, it is apparent that no evidence was adduced on behalf of the defendant touching the cause of action of the suit. Under such circumstances, the court could not proceed as if it was a contested case. The decree passed by the learned trial Judge, therefore, was really an ex parte decree. ( 17 ) NOW the next question is if the court erroneously records an ex parte decree as a contested one, can such fact prevent the defendant from filing application under Order 9 rule 13 of the Code. In my view, answer must be given in negative. In this connection reference may be made to the decision of the Apex court in the case of Prakash Chandra v. Sm. Janki, where although no evidence was adduced on behalf of the defendant, the court recorded the decree as one passed on contest and the de-fendant having pointed out such mistake by filing an application for review, the court rejected such application. Under such circumstances, the Supreme Court held that appropriate remedy of the defendant lay by filing application under Order 9 Rule 13 of the Code although the same was described as a contested decree. Under such circumstances, the Supreme Court held that appropriate remedy of the defendant lay by filing application under Order 9 Rule 13 of the Code although the same was described as a contested decree. In my view, similarly, if only two, formal questions regarding place of residence and profession of the witness have been asked, answer to such question cannot be said to be "substantial part of evidence" justifying passing of a decree on contest by relying upon the explanation given to" Order 17 Rule 2. Therefore, notwithstanding the fact that the court wrongly described such decree as one passed on contest, an application under Order 9 Rule 13 of the Code will be maintainable at the instance of defendant. ( 18 ) MR. Banerjee appearing on behalf of the opposite party tried to distinguish the aforesaid supreme Court decision by pointing out that in the said case there was 'no evidence' whereas in the present case there is 'some evidence' on the part of the defendant and whether such small portion is substantial or not cannot be decided by the Court dealing with an application under Order 9 Rule 13 of the Code. ( 19 ) 1 am not at all impressed by the aforesaid distinction pointed out by Mr. Banerjee. If a court erroneously passes a decree by describing it as passed on contest although there is no evidence on the part of the defendant on the subject matter of dispute, such decree must be held to be ex parte decree, even though two questions as mentioned above were put to the witness in examination-in-chief. ( 20 ) MOREOVER, 'substantial portion of the evidence' of the any party means not mere examination-in-chief without any cross-examination. The defendant in examination-in-chief may say many things but unless he is cross-examined substantially by the plaintiff, the same cannot be relied upon as substantive evidence. The court in such a case cannot even rely upon any part of the evidence given in examination-in-chief of the defendant because he failed to appear to face cross-examination of the plaintiff. Under such circumstances, the court cannot pass a contested decree unless substantial portion of cross-examination is over. The court in such a case cannot even rely upon any part of the evidence given in examination-in-chief of the defendant because he failed to appear to face cross-examination of the plaintiff. Under such circumstances, the court cannot pass a contested decree unless substantial portion of cross-examination is over. ( 21 ) IN view what have been stated above i find that in the instant case although the learned trial Judge recorded that the decree was passed on contest, the provision contained in Order 17 Rule 2 or Order 17 Rule 3 did not authorize the court to pass a decree on contest in the facts of the case and the application under Order 9 Rule 13 of the Code was the appropriate application because the decree was really an ex parte decree based solely on the evidence adduced on behalf of the plaintiffs. ( 22 ) THE learned courts below thus refused to exercise jurisdiction vested in it by law by not going into merit in the application under order 9 Rule 13. I thus set aside the order impugned and direct the learned trial Judge to dispose of the application under Order 9 Rule 13 of the Code on merit. No costs. Petition allowed accordingly.