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2013 DIGILAW 238 (ORI)

Jitendra Kumar Choudhury v. Banku Sahoo

2013-07-25

R.Dash

body2013
JUDGMENT The present appellant who is the defendant in C.S. No.102 of 2006 and the petitioner in C.M.A. No.23 of 2011 under Order 9 Rule 13 of CPC in the court of the 2nd Additional Civil Judge (Senior Division), Cuttack challenges the order dated 22.12.2012 passed by the learned Civil Judge in the C.M.A. rejecting the prayer to set aside the ex parte decree dated 25.4.2011 passed in the C.S. 2. The respondent herein is the plaintiff in the suit. He filed the suit for a decree for specific performance of contract directing the appellant-defendant to perform an agreement dated 20.4.2004 and to execute and register a Sale Deed in respect of the plaint schedule ‘A’ property on receiving the balance consideration money from the respondent-plaintiff and to deliver possession of the property to him. Subsequently, the respondent-plaintiff filed another suit registered as C.S. 52 of 2007, on the allegation that the suit property being given on security with State Bank of India, Tulasipur Branch, against a loan availed by the appellant-defendant was going to be attached and sold under the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, made a prayer to restrain the defendant so also the Bank from taking action in respect of the suit property for realization of Bank dues with further prayer to direct the Bank to receive the outstanding loan dues from the plaintiff and to release the title deeds in respect of the suit property which was deposited with the Bank by the defendant-appellant. Boththe suits were taken up for analogous hearing. When the trial commenced, the plaintiff examined himself as P.W.1. On different dates he was cross-examined in parts because of petitions for adjournment filed by the defendant from time to time. Ultimately, the date was fixed to 22.4.2011 for further cross-examination of P.W.1. On that date the defendant again prayed for adjournment. Observing that P.W.1 was already sent back on several occasions without examination, the learned trial court allowed the petition and granted adjournment as last chance subject to payment of cost of Rs.50/-and posted the case to 23.4.2011 for payment of cost as well as hearing of the suit. On 23.4.2011 the defendant appeared in person and filed an adjournment petition on the ground that he had made an application to the learned District Judge seeking transfer of the suit to some other court. On 23.4.2011 the defendant appeared in person and filed an adjournment petition on the ground that he had made an application to the learned District Judge seeking transfer of the suit to some other court. On that date neither the cost was paid nor any prayer for extension of time was made. The learned trial court rejected the petition for time. Since the defendant, who was present in person, declined to further cross-examine P.W.1 and since the plaintiff had already closed his case, the learned lower court passed order debarring the defendant from further prosecuting his defence on the ground of non-payment of cost and on the same date argument was heard and the case was adjourned to 25.4.2011 for judgment. On the date fixed, the judgment was pronounced decreeing the suit bearing C.S. No.102 of 2006 and dismissing the other suit bearing C.S.No.52 of 2007. 3. After dismissal of the suit, the defendant filed petition under Order 9 Rule 13 read with Section 151 of C.P.C. to set aside the judgment dated 25.4.2011. The same was registered as C.M.A. No.23 of 2011. During pendency of the proceeding in the C.M.A., the plaintiff-opposite party filed a petition to take up the point of maintainability of the petition under Order 9 Rule 13 of C.P.C. before going to the main proceeding. On that petition, the learned trial court passed a detailed order on 17.8.2012 observing that the petition under Order 9 Rule 13 of C.P.C. is maintainable. Thereafter, hearing on the petition was taken up. The petitioner-defendant adduced evidence by examining himself as P.W.1. None was examined on behalf of the opposite parties. No documents were exhibited on behalf of any of the parties. While passing the impugned order, the learned trial court once again entered into the point of maintainability and this time took a contrary view holding that in the facts and circumstances the provisions of Order 9 Rule 13 of C.P.C. did not get attracted. 4. In the aforestated background, the present appeal against the impugned order has been filed. It is submitted on behalf of the appellant that the earlier finding that the application under Order 9 Rule 13 of CPC was maintainable having not been challenged in any higher forum, the subsequent finding of the same court on the same point is erroneous and illegal. It is submitted on behalf of the appellant that the earlier finding that the application under Order 9 Rule 13 of CPC was maintainable having not been challenged in any higher forum, the subsequent finding of the same court on the same point is erroneous and illegal. Further submission is that the learned trial court instead of finding out as to whether the defendant was prevented by sufficient cause from appearing before the court on the relevant date took into consideration the past conduct of the defendant on previous dates and thereby committed illegality. Further submission is that the circumstances under which the suit has been dismissed attract the provisions of Order 17 Rule 2 of the C.P.C. and, consequently, a petition under Order 9 Rule 13 of C.P.C. to set aside the decree is maintainable. On behalf of the respondent, it is submitted that since last adjournment was granted subject to payment of cost and on the next adjourned date cost was not paid, the learned trial court rightly debarred the appellant from prosecuting his defence and that since evidence from the side of the respondent-plaintiff was complete, learned trial court proceeded to dispose of the suit on merit. Further submission is that a petition under Order 9 Rule 13 CPC in the facts and circumstances of the case is not maintainable. It is further contended that the appellant-petitioner did not approach the trial court in clean hands inasmuch as he did not only file a petition under Order 9 Rule 13 of CPC to set aside the impugned judgment and decree but also prefer a regular appeal before this Court in RFA No.97 of 2011 challenging the same judgment and decree. 5. First, the point on res judicata may be taken into consideration. It is not disputed that on 17.8.2012 the learned trial court passed order on the point of maintainability of the CMA and observed that the petition under Order 9 Rule 13 of CPC is maintainable. However, while finally deciding the petition under Order 9 Rule 13 of CPC, the same court dismissed the petition observing that Order 9 Rule 13 of CPC was not attracted. However, while finally deciding the petition under Order 9 Rule 13 of CPC, the same court dismissed the petition observing that Order 9 Rule 13 of CPC was not attracted. In Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another, reported in AIR 1960 SC 941 , the Hon’ble Supreme Court has held that the principle of res judicata applies also as between two stages in the same litigation to the extent that a court, whether the trial court or a higher court having at an earlier stage decided the matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceeding. Thus, the submission made on behalf of the appellant that the subsequent decision of the learned lower court on the maintainability of the petition under Order 9 Rule 13 of CPC is hit by the principles of res judicata is quite tenable. However, since the same question has again been raised before this Court in an appeal against the final order, the controversy can be thrashed out in this appeal. This position has been made clear by the Hon’ble Supreme Court in the aforecited decision in Satyadhyan Ghosal’s case (supra) observing that an interlocutory order, which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken, can be challenged in an appeal from the final decree or order. Therefore, it is now to be considered as to whether the petition under Order 9 Rule 13 of CPC is maintainable or not. Before adverting to the factual reproduced hereunder for ready reference:- “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 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. 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 party were present. Rule 3. Court may proceed notwithstanding either party fails to produce evidence, etc. – Where any party to 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. A comparative reading of the two Rules would make it clear that their application is meant for distinct and different sets of circumstances. It is well settled that Rule 2 applies when an adjournment has been generally granted and not for any special purpose whereas Rule 3 applies where the adjournment has been given for one of the purposes mentioned in Rule 3. Rule 2 empowers the Court to dispose of the suit in any of the modes specified in Order 9 of CPC. Rule 3 empowers the Court to decide the suit forthwith provided the conditions laid down in the said Rule are satisfied. Rule 2 has no application unless the parties or any of them failed to appear at the hearing. Rule 3 authorizes/empowers the court to proceed to decide the suit forthwith only when the parties are present. 2. 7. At this point, it is important to refer to the following observations made by this Court in Mulia Maharana v. Narayan Patra and another, reported in AIR 1964 Orissa 246: “Mere presence of a party most often would not conduce to or subserve the interest of the party in establishing his case. Occasions do arise when a party having a right cause in his favour, due to justifying an unforeseen circumstance, is not able to collect the necessary materials and evidence in support of his case. Occasions do arise when a party having a right cause in his favour, due to justifying an unforeseen circumstance, is not able to collect the necessary materials and evidence in support of his case. Without being so armed, if the party enters into the arena of contest, he would merely satisfy the formalities of a trial but would not be able to get justice in support of his righteous cause. It is for these reasons various provisions in Order 9, C.P.C. have been prescribed to give full opportunity to a party to contest the case when his non-appearance is for sufficient cause. In the face of statutory provisions, Courts cannot prescribe an invariable rule that in all cases where the party is present in court without evidence, he must contest the suit to maintain co-operation with the court. A party cannot be penalized for non-cooperation with the Court. In fact the statutory provisions do not use the expression “co-operation with Court”. If in certain circumstances the party, though present in court, chooses not to appear after the adjournment petition is rejected, it is not on account of a desire to have non-cooperation with the Court, but only with the paramount consideration of contesting the litigation not in a half-hearted manner which would generally culminate in frustration of justice so far as the party is concerned. The real consideration in such a case is not whether the party non-cooperated with the Court, or made voluntary retirement, but whether the non-appearance of the party, after the rejection of the petition for time, was sufficient cause. The answer to such a question will vary according to the facts and circumstances of each case. In a particular case, such voluntary retirement or withdrawal may amount to absence of sufficient cause if the party fails to satisfy the Court after witnesses are examined in a proceeding under Order 9, Rule 9 or 13, C.P.C.” (Underlined by me) 8. In the light of the above quoted observations, the applicability of Order 17 Rule 3 of CPC is now to be examined. Admittedly, on 23.4.2011 defendant’s Advocate was not present. The defendant was present in person but after rejection of his time petition he withdrew himself from the proceeding by declining to further cross-examine P.W.1. This being the position, Order 17 Rule 3 of CPC is not applicable. 9. Admittedly, on 23.4.2011 defendant’s Advocate was not present. The defendant was present in person but after rejection of his time petition he withdrew himself from the proceeding by declining to further cross-examine P.W.1. This being the position, Order 17 Rule 3 of CPC is not applicable. 9. Now, let it be thrashed out as to whether the defendant’s withdrawal from participation in the proceeding on 23.4.2011 amounts to sufficient cause as contemplated under Order 9 Rule 13 of CPC. On 23.4.2011 he made a prayer to defer the cross-examination of PW1 on the ground that on the same date he had made a complaint before the learned District Judge, Cuttack alleging that the Presiding Officer was prejudiced against him for which the suit should be transferred to some other court. But, while adducing evidence in support of his petition under Order 9 Rule 13 of CPC, the present appellant did not produce any material showing that he had filed any formal petition for transfer of the suit. Therefore, the learned lower court has rightly refused to accept this contention as a sufficient cause preventing the appellant from participating in the proceeding. Thus, it is found that the appellant defendant has failed to show sufficient cause that prevented him from appearing when the suit was called on for hearing on 23.4.2011. Had it been a mere case of withdrawal from taking part in the proceeding, the petition under Order 9 Rule 13 of CPC would have been maintainable. But, the order dated 23.4.2011 is very clear to the extent that on account of non-payment of cost awarded under Section 35-B of the CPC, the learned lower court debarred the defendant from further prosecuting his defence and finding that the plaintiff-respondent has already closed his evidence, the learned trial court proceeded to hear argument and thereafter passed the judgment. On 23.4.2011 the defendant-appellant did not pay the cost, nor did he make a prayer for extension of time to pay the cost. Confronted with such a situation, the learned trial court debarred the defendant-appellant from further prosecuting his defence and then proceeded with the trial and ultimately delivered the judgment followed by the impugned decree. Under such circumstances, the impugned judgment and decree cannot be brought under the purview of Order 9 Rule 13 of CPC. Confronted with such a situation, the learned trial court debarred the defendant-appellant from further prosecuting his defence and then proceeded with the trial and ultimately delivered the judgment followed by the impugned decree. Under such circumstances, the impugned judgment and decree cannot be brought under the purview of Order 9 Rule 13 of CPC. Therefore, from that point of view, the learned trial court has correctly arrived at a conclusion that the petition under Order 9 Rule 13 of CPC is not attracted. 10. In the result, the F.A.O. is dismissed but, in the facts and circumstances, without any cost. FAO dismissed.