Research › Search › Judgment

Gauhati High Court · body

2007 DIGILAW 137 (GAU)

Ramusa Khatoon Mustt. v. Durga Kakati

2007-02-13

I.A.ANSARI

body2007
JUDGMENT I.A. Ansari, J. 1. If, in a suit, the defendant takes adjournment for adducing evidence, but on the date to which the hearing of the suit is adjourned, the defendant fails to adduce evidence and, in consequence of such failure of the defendant, the Court decrees the suit, whether an application under Order IX Rule 13 of the Code of Civil Procedure (in short, 'the Code') will lie to set aside such a decree is the moot question, which this revision petition has raised, and, if so, subject to what conditions, such a decree would be amenable to Order IX Rule 13 is yet another important question, which this revision petition has raised. 2. The material facts, which have given rise to the present revision, may, in brief, be set out as follows: In Title Suit No. 89/88, the plaintiff adduced evidence and his evidence was closed on 04.05.99. While the suit was pending for recording of the evidence of the defendant side, the defendant filed a petition, on 22.03.2000, seeking time to adduce evidence and the learned Civil Judge (Junior Division) No. 2, Guwahati, fixed the suit, on 25.04.2000, for recording of the evidence of the defendant. On the date, so fixed, i.e., on 25.04.2000, while the plaintiff was present, neither the defendant was present nor was present his witness. The learned trial Court closed the evidence of the defendant and fixed the suit for argument on 10.05.2000. Having, eventually, heard the argument of the plaintiff's side on 08.06.2000, the learned trial Court delivered judgment, on 19.06.2000, decreeing the suit, on contest, with cost. Against the decree so passed, an application was made, under Order IX Rule 13, by the defendant seeking to get the decree set aside. Having given the opportunity of showing cause to, and also upon hearing, the parties concerned, the learned trial Court passed an order, on 16.12.2005, setting aside the said decree. Aggrieved by the order, so passed, the plaintiffs have come to this Court with the help of the present revision petition. 3. I have heard Mr. C.K. Sharma Baruah, learned Senior counsel, appearing on behalf of the plaintiffs-petitioners, and Mr. P. Kalita, learned Counsel, for the defendants-opposite parties. 4. Aggrieved by the order, so passed, the plaintiffs have come to this Court with the help of the present revision petition. 3. I have heard Mr. C.K. Sharma Baruah, learned Senior counsel, appearing on behalf of the plaintiffs-petitioners, and Mr. P. Kalita, learned Counsel, for the defendants-opposite parties. 4. The moot question, as already indicated above, raised in the present revision, is as to whether an application under Order IX Rule 13 lied against the said decree or there ought to have been preferred an appeal in terms of Section 96 of the Code? 5. While considering the present revision, what needs to be noted is that the consequences of the absence of the parties at the time, when a suit is taken up for hearing, is covered by Order XVII of the Code. While Order XVII Rule 1 deals with the power of the court to grant time and adjourn hearing of the suit, Rules 2 and 3 prescribe the procedure, which a court may adopt if the parties or any of them fail to appear on the date fixed or fail to adduce evidence on the date to which the suit is adjourned. As Rules 2 and 3 of Order XVII are closely interlinked and of great relevance in the present case, Rules 2 and 3 are reproduced hereinbelow: Order XVII, Rule 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 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 order as it thinks fit. Explanation: Where the evidence of 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. Rule 3: Court may proceed notwithstanding either party fails to produce evidence etc. 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 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. 6. From a careful reading of Rules 2 and 3, what transpires is that if, on the date to which hearing of a 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 as directed in that behalf by Order IX or make such order as it thinks fit. The Explanation appended to Rule 2 shows that where the evidence or substantial portion of the evidence of a party has been recorded and such a party fails to appear on the 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. This Explanation, thus, enables the court to deem an absentee party as present in the suit; but what is crucial to note is that an absentee party can be deemed to be present under this Explanation provided that the evidence or substantial portion of the evidence of the absentee party has already been recorded and the court is satisfied that the evidence, so adduced, is sufficient to substantiate the absentee party's case and also for disposal of the suit. It is also imperative to note that in such a case, the court records in this perspective its satisfaction. Hence, when the evidence on record, in such a case, is sufficient for disposal of the suit, the court may not adjourn the suit or defer its decision. (See B. Janakiramaiah Chetty v. A.K. Parthasarathi and Ors. reported in [2003] 3 SCR 369). 7. What logically follows from the above discussion is that in a given case, when a defendant has not adduced any evidence, Explanation to Rule 2 would not be attracted. (See B. Janakiramaiah Chetty v. A.K. Parthasarathi and Ors. reported in [2003] 3 SCR 369). 7. What logically follows from the above discussion is that in a given case, when a defendant has not adduced any evidence, Explanation to Rule 2 would not be attracted. In such circumstances, the court may, under Order XVII Rule 2, either proceed to dispose of the suit in terms of the relevant provisions of Order IX or make such order as it thinks fit. If the court decides to dispose of the suit and proceeds accordingly, the decree granted would be a decree under Order IX and cannot be treated as a decree granted inter parte on merit. 8. So far as Order XVII Rule 3 is concerned, what it lays down is that when a party to a suit has obtained time to produce evidence or to cause the attendance of his witnesses or to perform any such other act, which is necessary for further progress of the suit, but fails to produce evidence or to cause the attendance of his witnesses or to perform any such other act, which was necessary for further progress of the suit, the court may, notwithstanding such default, proceed to decide the suit forthwith provided that the parties are present; but if the parties, or any of them, is absent, the court may proceed in terms of Rule 2 of Order XVII. 9. Thus, a careful reading of Order XVII Rule 3 shows that where a suit is adjourned for the purpose of recording evidence of the defendant's side and if the plaintiff as well as the defendant are present on such an adjourned date, but the defendant fails to produce his witness or adduce evidence, the court may proceed to decide the suit forthwith. In such circumstances, the decree granted would be an inter parte decree and the provisions of Order IX would not be attracted; but if the parties or any of them fail to appear on such an adjourned date, the court may proceed under Rule 2 and when the court, in such a case, turns to Rule 2, it can either dispose of the suit in one of the modes as directed Order IX or make such other order as it thinks fit. If, however, the evidence already adduced by such an absentee party is, in the view of the court, sufficient to dispose of the suit, the court may proceed to decide the suit treating the absentee party as present; but the decree, so granted, would not be an ex parte decree; rather, the decree, in such a case, would be an inter parte decree and such a decree cannot be set aside by invoking the provisions of Order IX Rule 13. 10. Thus, in a case to which the provisions of Order XVII Rule 3(b) applies, the court cannot decide the suit treating the absentee defendant as present unless the evidence or substantial portion of the defendant's evidence has already been recorded. In short, when a suit is fixed for recording of the evidence of the defendant and on the failure of the defendant to appear and produce evidence, a court decides to proceed with the suit, the decree, if granted, would be a decree covered by Order IX and such a decree can be set aside by taking recourse to Order IX Rule 13. Such a decree would not be regarded as an inter parte decree, for, the Explanation to Rule 2 of Order XVII would not be attracted to the facts of such a case. This position of law has been made clear by the Apex Court, in Prakash Chander Manchanda and Anr. v. Smt Janki Manchanda [1987] 1 SCR 288, in the following words: 6. In some decisions, the High Courts have gone to the extent of saying that even if the trial 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 disposal in accordance with Order 17 Rule 3 and provisions of Order 9 will be available to such a party either for restoration or for setting aside an ex parte decree. Learned Counsel placed before us a number of decisions of various High Courts on this aspect of the matter. Learned Counsel placed before us a number of decisions of various High Courts on this aspect of the matter. But in our opinion in view of the amendment of 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 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 9 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 this discretion proceed with the case as if such party 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 witness, or to 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, 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 the only course as mentioned in Order 17 Rule 3(b) is 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 it 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. 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 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. It is therefore clear that if on a date fixed, one of the parties remain absent and for the 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 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 controversy. In this view of the matter it is clear that when in the present case on October 30, 1985 the case was called nobody was present for the defendant. It is also clear that till that date the plaintiff's 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 up to the date i.e. October 30, 1985 when the trial court closed the case of defendants there was no evidence on record on behalf of the defendant. In this view of the matter therefore 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. 11. In this view of the matter therefore 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. 11. From what has been observed in Prakash Chander Manchanda (supra), it becomes abundantly clear that in a suit, wherein the defendant's evidence has not been recorded and the defendant fails to appear on the date fixed for his evidence, the court cannot proceed under Order XVII Rule 3; rather, the court would have to proceed, in such a case, under Order XVII Rule 2 and the decree, if any, passed, would be a decree under Order IX and not an inter parte decree, for, the Explanation to Rule 2 of Order XVII would not, in such a case, be attracted. 12. Bearing in mind the position of law as discussed above, when I turn to the facts of the present case, what attracts the attention is that in the present case, while the evidence of the plaintiff already stood closed on 04.05.99, the evidence of the defendant had not been recorded, when the suit came up for hearing on 25.04.2000, 10.05.2000, 08.06.2000 and 19.06.2000. In such circumstances, though the learned trial Court observed that the suit had been disposed of, on contest, with cost, the fact remains that the decree granted was a decree under Order XVII Rule 2 and this decree was an ex parte, which could have been interfered with under Order IX Rule 13. In the case at hand, therefore, the defendant had the option to apply for an order under Order IX Rule 13 in order to get the decree, in question, set aside and the learned trial Court had, indeed, the jurisdiction to entertain and dispose of, in accordance with law, the application so made under Order IX Rule 13. Viewed thus, it is clear that the exercise of power under Order IX Rule 13 by the learned trial Court, in the present case, was not without jurisdiction. Viewed thus, it is clear that the exercise of power under Order IX Rule 13 by the learned trial Court, in the present case, was not without jurisdiction. So far as the merit of the impugned order, dated 16.12.2005, is concerned, I notice that the learned trial Court has assigned cogent reasons for setting aside the decree, the reason being that the defendant had shown that it was due to sudden accident of his son and his death that the defendant could not pursue the suit properly. Thus, the impugned order neither suffers from lack of jurisdiction nor is it an order, which suffers from exercise of jurisdiction with material irregularity. The impugned order, therefore, calls for no interference. 13. In the result and for the reasons discussed above, this revision fails and the same shall accordingly stand dismissed. 14. Before parting with this revision, what needs to be pointed out is that while issuing notice of motion, on 08.02.2006, in this revision, this Court also stayed further proceedings of Title Suit No. 89/88 as well as Title Execution Case No. 19/2005. In terms of the stay so granted, none of the parties to the suit appeared on 04.03.2006, i.e., the date on which the suit was fixed. However, the learned trial Court, vide its order, dated 04.03.2006, dismissed the suit for default. Against the order so passed on 04.03.2006, the plaintiff has applied for restoration of the suit and this application has given rise to Misc. Case No. 56/2006. What is, now, of immense importance to note is that unlike an order of injunction, which comes into force, when the order is communicated, actually or constructively, to the parties concerned, the stay order takes effect from the very moment, when the order staying the proceeding is passed. For coming into force, a stay order does not depend on the fact as to whether the order has been communicated to the Court, whose further proceeding have been stayed. Considered thus, it is clear that when this Court stayed further progress of the suit on 08.02.2006, the learned trial Court had no jurisdiction to pass any order dismissing the suit. Considered thus, it is clear that when this Court stayed further progress of the suit on 08.02.2006, the learned trial Court had no jurisdiction to pass any order dismissing the suit. As the order, dated 04.03.2006, aforementioned dismissing the suit is an order, which has been passed during the period, when the proceeding of the suit was kept stayed, the order, so made, is void ab initio and cannot be allowed to stand good on record. The order, dated 04.03.2006, is, therefore, set aside and the suit is restored to file. 15. In order to avoid further delay in the disposal of the suit, the parties to the suit are hereby directed to appear in the suit in the learned trial Court on 05.03.2007. It is further directed that the learned trial Court shall expedite the disposal of the suit and shall, preferably, dispose of the suit within a period of two months from the date of the appearance of the parties in terms of the directions given hereinabove. If necessary, the learned trial Court shall hear the suit on day-to-day basis and dispose of the same in accordance with law. Send back the LCR. Petition dismissed.