Research › Search › Judgment

Orissa High Court · body

2003 DIGILAW 296 (ORI)

Mankturam Agrawal v. Shankar Mahauti

2003-04-16

P.K.TRIPATHY

body2003
JUDGMENT P. K. TRIPATHY, J. — Final order passed by the Civil Judge (Senior Division), Nuapada in Misc. Judicial Case No. 11 of 1996 and the confirming judgment passed by the Additional District Judge, Nuapada in Misc. Judicial Appeal No. 3/6 of 1997-2000 is under challenge in this civil revision. 2. The above noted Misc. Judicial Case No. 11 of 1996 was filed by the son of defendant No. 1, praying to set aside the decree passed by the Civil Judge on 27.4.1996 in Title Suit No. 5 of 1994. Plaintiff and defendant No. 2 were respective added as opposite parties 1 and 2. Plaintiff contested that Misc. Case both in the original Court so also in the appellate Court and the impugned judgments were passed rejecting the application under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (in short, ‘the Code’) on the ground that the judgment which was delivered on 27.4.1996 is covered by the provision in Order 17, Rule 3 and therefore application under Order 9, Rule 13 of the Code is not maintainable. The total argument which the petitioner has ad¬vanced is that the judgment which was delivered on 27.4.1996 and the decree which was passed in the suit in the absence of the defendants is a judgment in accordance with the provision under Order 17, Rule 2 of the Code and therefore, application under Order 9, Rule 13 of the Code was illegally rejected by the Court below. 3. Before dealing with the aforesaid aspect, a brief sketch of the relevant facts involved in the case is noted as hereunder. (i) Plaintiff instituted Title Suit No. 5 of 1994 claiming for the relief of declaration of title and recovery of possession from the defendants 1 and 2 after demolition of unauthorised boundary wall constructed by the defendants on the suit land. According to the Schedule of the plaint, the suit land measures an area of Ac. 0.03 decimals out of Ac. 0.07 decimals of Plot No. 1958 under Khata No. 1110 in Mouza Khariar. A sketch map indicat¬ing the disputed portion was appended to the plaint. According to the Schedule of the plaint, the suit land measures an area of Ac. 0.03 decimals out of Ac. 0.07 decimals of Plot No. 1958 under Khata No. 1110 in Mouza Khariar. A sketch map indicat¬ing the disputed portion was appended to the plaint. Plaintiff’s claim is that his father is the recorded tenant of the suit land and after the death of his father plaintiff succeeded to that property.He being serving as a teacher and being in a transfera¬ble job was outside the town, the taking advantage of that, in the year 1988, defendant No. 1 constructed the boundary wall by encroaching upon his area and thereafter managed to enter the same in N.A.C. record in the name of his wife i.e., defendant No.2. (ii) The original defendant No. 1, viz., Ram Chandra Agarwal is the husband of defendant No. 2 Manibai Agarwal. Petitioner is the son of the defendant Contention of the petitioner relating to death of his father Ram Chandra Agarwal on 24.5.1996 is not disputed by the plaintiff. (iii) Defendants 1 and 2 filed a joint written state¬ment, inter alias, claiming that the disputed area was purchased by defendant No. 2 from the father of the plaintiff under an unregistered sale deed (Ext.A) for a consideration of Rs. 95/- on 18.8.1967 and since that date she remained in possession and made the aforesaid construction. Accordingly, they denied to the title and possession of the plaintiff. Alternatively, they claim for title by adverse possession. (iv) In view of such pleadings, one of the relevant issues was the issue relating to adverse possession claimed by the defendant and because of that on 31.10.1995 order was passed in the suit directing the defendants to lead the evidence. Accord¬ingly, after two adjournments on 31.1.1996 defendants examined one witness, i.e., the scribe of the sale deed Ext.A. That witness was examined as D.W. No.1, cross-examined and discharged. On that date, on the application of the defendants the suit was adjourned to 1.2.1996 for further hearing. Thereafter, form 1.2.1996 till 17.4.1996 suit was adjourned from time to time on the petition of either of the parties or on joint petition of both the parties. (v) On 17.4.1996 the counsel for the defendants reported no instruction and also filed postal receipt of notice to defendants about that fact. Thereafter, form 1.2.1996 till 17.4.1996 suit was adjourned from time to time on the petition of either of the parties or on joint petition of both the parties. (v) On 17.4.1996 the counsel for the defendants reported no instruction and also filed postal receipt of notice to defendants about that fact. Plaintiff applied for adjournment and therefore the suit was adjourned for hearing from 17.4.1996 to 19.4.1996. On 19.4.1996 no one appeared for the defendants. Plaintiff exam¬ined one witness and relied on the documents, which were marked Exts. 1 to 5. Plaintiff declined to adduce any further evidence. Therefore, evidence was closed, argument was heard from the plaintiff and the case was adjourned to 27.4.1996 for judgment. On the adjourned date judgment was delivered granting a decree in favour of the plaintiff and mentioning that to be a decree on contest. 4. As noted above, the revision-petitioner on 31.8.1996 filed application under Order 9, Rule 13, C.P.C., which was registered as M.J.C. No. 1 of 1996. 5. On the backdrop of the aforesaid facts, learned counsel for the petitioner argued that when the defendant was not present on the date of hearing,i.e., on 19.4.1996, therefore, the provi¬sion in Order 17, Rule 3 of the Code in Clause (6) is applicable and accordingly the disposal of the suit should be regarded to be one under Order 9 in view of such provision in Order 17, Rule 2 of the Code and not on merit. He relied on the ratio in the case of Prakash Chander Manchanda and another v. Smt. Janki Manchanda, A.I.R. 1987 S.C. 42; M. S.Khalsa v. Chiranji Lal and others, A.I.R. 1976 Allahabad 290; M/s. Radhika Engineering Industries v. M/s. Hindustan Aeronautics Ltd., Koraput Division, 1993 (II) OLR-37. 6. At the time of hearing of this revision, on 3.4.2003 the opposite party did not appear to argue. 7. The provision in Order 17, Rule 2 of the Code mandates that : (i) where on any date to which the hearing of the suit is ad¬journed, (ii) on that date the parties or any of them fail to appear, (iii) then the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9, or (iv) make such other order as it thinks fit. The Explanation in above stated Rule 2 provides that : “Where the evidence or the substantial portion of the evi¬dence of any party has already been recorded and such party fails to appear on any date to which the hearing of the suit is ad¬journed,the Court may, in its discretion, proceed with the case as if such party were present.” Order 17, Rule 3 of the Code applies in the following type of cases : (i) where any party to a suit to whom time has been granted, fails to (a) produce his evidence, or (b) to cause the attendance of his witness, or (c) to perform any other act necessary to the further progress of the suit. (ii) the Court may notwithstanding such default. (a) proceed to decide the suit forthwith if the parties are present, or (b) proceed under Rule 2 if the parties or any of them is absent. The above being the position of law under Rules 2 and 3 respec¬tively, it is to be considered in this case, which of the afore¬said rules apply to the present case. Since it is the admitted position on record that after adducing some evidence the defend¬ant did not appear on 17.4.1996 and19.4.1996 and on the later date, plaintiff’s evidence was recorded to complete the hearing of the suit. 8. Order 17 deals with the matter or the course of action which is to be a undertaken by a trial Court in a suit relating to adjournments. In that context, as noted above, when the main provision in Rule 2 provides that if one of the parties to the suit defaults in his appearance on an adjourned date of hearing, then the Court may proceed to dispose of the suit in one of the modes prescribed in Order 9. But the explanation attached to that rule puts an exception to that procedure by providing that when evidence or substantial portion of evidence of any party has already been recorded and such party fails to appear on the adjourned date to participate in the further hearing, then the Court may in its discretion proceed with the case as if such party was present. In other words, there shall not be any ex parte hearing followed with an ex parte decree or dismissal of the suit on the absence of the defendants or the plaintiffs, as the case may be.If the Court in its discretion desires to proceed with the case and to dispose of the same on merit notwithstanding the absence of one of the parties and the absentee party having already adduced evidence or a substantial portion of the evi¬dence in support of his case. Thus, if the disposal shall be covered by explanation to Rule 2 of Order 17 of the Code, then that shall be regarded as a contested disposal and that judgment cannot be regarded as an ex parte decree if such a judgment is delivered against the defendants, nor as a dismissal of the suit under Order 9 if a judgment is delivered against the plaintiff. The statutory provision suggests to the aforesaid interpretation of the Explanation in Rule 2 which is to be harmoniously read with the provision in Rule 3 while constructing the manner of disposal i.e., to say whether it amounts to ex parte decree or contested disposal. In view of the provision in the Explanation in Order 17 Rule 2 of the Code, the judgment which was delivered in the present case was under Order 20 of the Code. Since the aforesaid judgment cannot be regarded as an ex parte decree, then naturally the provision in Order 9, Rule 13 of the Code is not applicable. The judgment delivered by the Civil Judge (Senior Division) on 27.4.1996 clearly reads that, that judgment was delivered on contest. Therefore, the provision in Order 9, Rule 13, C.P.C. is not applicable. 9. In the case of M/s. Radhika (Supra) the fact before this Court was that plaintiff adduced evidence and that was re¬corded notwithstanding non-participation of Advocate for the defendant and the suit was disposed of. Taking that circumstance into consideration, this Court held that the hearing deemed to have proceeded under Order 17, Rule 2 and not under Order 17, Rule 3, and accordingly set aside the decree by invoking the provision under Order 9, Rule 13, C.P.C. It be noted here that the provision in the Explanation in Rule 2 was neither involved nor attracted in that case. In the case of M. S. Khalsa (supra), the Full Bench of Allahabad High Court was considering a reference made to the larger Bench for consideration of applicability of Rule 2 or 3. Taking into consideration the amended provision of Rule 2 and 3 according to the amendments of the Allahabad High Court, that reference was answered by stating that Rule 3 shall not apply if the defendant is absent. Keeping in view the distinguishable language in that provision so far Allahabad High Court is con¬cerned, this Court finds no assistance from that decision with respect to the problem at hand. In the case of Prakash Ch.Manchanda (supra) while dealing with a case of non-participation of the defendant in the suit and his absence on the date of hearing and keeping a conspectus of provision of law in Rule 2, 3, their Lordships of the Apex Court have observed that : “6.xx xx xx xx 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 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. 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 pre¬scribed under Order 9, Civil P.C. It is therefore clear that after this amendment in Order 17, Rule 2 and 3, Civil P.C. there remains no doubt and therefore there is no possibility of any controversy.....” (the above underlining has been done by this Court to put empha¬sis.) The above quoted ratio thus supports the interpretation which this Court has made in the preceding paragraph that the disposal of the suit by learned Civil Judge is governed by the provision in Rule 3 because of the explanation in Rule 2 which enables the Court to deem presence of the absentee party which has led some or substantial part of their evidence before the date of default in participating in the further progress of the suit. Thus, this Court finds no illegali¬ty in the impugned orders in which the Courts below have rejected the application under Order 9 Rule 13 of the Code on the ground that disposal of the suit is governed by Order 17, Rule 3 of the Code. For the reasons indicated above the Civil Revision is dis¬missed. Revision dismissed.