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2014 DIGILAW 966 (GAU)

HASNA ARA BEGUM v. KAUSHIK RANJAN DAS

2014-11-03

N.CHAUDHURY

body2014
ORDER (ORAL) Heard Mr. NK Kalita, learned counsel for the petitioner and Mr. P Roy, learned counsel for the opposite party. 2. The present petitioner was the defendant in Money Suit No. 140/2006 which was instituted by the sole respondent herein. Plaintiff’s suit was for realisation of Rs. 2,60,000/- from the petitioner defendant. Defendant appeared and submitted written statement whereafter the learned Court below framed issues and put the parties to prove their respective cases. Plaintiff adduced evidence by examining witnesses and also producing documents. Defendants stopped appearing w.e.f. 02.02.2009 i.e. the date when plaintiff was adducing his evidence and no witness of the plaintiff was cross-examined by the defendant. After closure of the plaintiff’s evidence, learned Court fixed the case for evidence by defendant side. But since 02.02.2009 defendant stopped appearing in the case evidence on her part. At this stage the learned Trial court after perusal of the evidence led by the plaintiff alone, passed his judgment on 07.08.2009 decreeing the suit for Rs. 2,60,000/- along with interest @ 6% per annum from the date of institution of the suit till realisation. At this stage, the defendant appeared before the learned trial court and filed application under Order IX Rule 13 of the Code of Civil Procedure with prayer to set aside the decree dated 07.08.2009. The learned trial court by order dated 22.11.2010 considered the application along with the application for condoning delay of 359 days and thereupon dismissed the same holding that the impugned judgment and decree being an inter party one did not come within the sweep of Order IX Rule 13 of the Code of Civil Procedure. The learned court did not consider the application for condonation of delay rather closed the proceeding on the point of applicability of Order IX Rule 13 of the Code of Civil Procedure. Aggrieved, defendant approached this court by Civil Revision Petition being No. 37/2011 and this Court by order dated 02.02.2011 rejected the same holding that revision petition is not maintainable and appeal under Order XLIII Rule 1 (d) of the Code of Civil Procedure would be the appropriate remedy. It is thereafter the defendant preferred an appeal under Order XLIII Rule 1 (d) of the Code of Civil Procedure before the learned Additional District Judge (FTC) No. 3, Kamrup, Guwahati. The appeal was numbered as Misc. Appeal No. 08/2013. It is thereafter the defendant preferred an appeal under Order XLIII Rule 1 (d) of the Code of Civil Procedure before the learned Additional District Judge (FTC) No. 3, Kamrup, Guwahati. The appeal was numbered as Misc. Appeal No. 08/2013. After hearing the parties, the learned first appellate court passed judgment on 04.01.2014 holding that the defendant appeared in the case by filing written statement and subsequently defaulted to appear and so for all intents and purposes, it was an inter party judgment and so Order IX Rule 13 of the Code of Civil Procedure does not have any application in this case. The learned Appellate court, further, held that as the application under Order IX Rule 13 of the Code of Civil Procedure itself was not maintainable, there was no question of allowing the application under Section 5 of the Limitation Act. This judgment and order dated 04.01.2014 has been challenged in this present revision petition by the defendant. 3. Mr. NK Kalita, learned counsel for the petitioner submits that defendant initially appeared in the case, filed written statement and contested the suit but he subsequently defaulted in appearing in the court for all intents and purposes for the proceeding conducted against him. Even when the plaintiff’s witnesses were examined defendant remained absent and did not cross examine the witnesses. Drawing attention of this court to the provision of Order XVII Rule 2 of the Code of Civil Procedure, the learned counsel for the petitioner would argue that a case would be construed to be decided inter party at absence of any party if the absentee party is deemed present by operation of explanation to Order XVII Rule 2 of the Code of Civil Procedure. Mr. NK Kalita has placed reliance on a judgment of this court in the case of Ramusa Khatoon Mustt. and ors v. Durga Kakati and ors reported in 2007 (1) GLT 886. In that case also defendant approached this Court challenging a decision given by the first appellate court holding that the proceeding was an inter party one as defendant should be deemed to have been present when the evidence of the plaintiff was recorded. This court while deciding the case considered the provision of Order XVII Rule 2 and its explanation and found that this provision spoke of an absentee party whose evidence was recorded fully or in part. This court while deciding the case considered the provision of Order XVII Rule 2 and its explanation and found that this provision spoke of an absentee party whose evidence was recorded fully or in part. This court found that if after a party leads his evidence substantially and thereafter defaults in appearing in the Court and court decides the case in his absence, in that event such absentee party should be deemed to have been present and in that event it would be an inter-party proceeding. But if in case, a party did not lead any evidence at all, in that event mischief of the explanation under Rule 2 of Order XVII would not come into play and so any order or judgment or decree passed by the court under Order IX of the Code of Civil Procedure read with provision of Order XVII Rule 2 thereof would really be an ex-parte judgment. Once it is found that a particular judgment and decree was an ex-parte one, it would be possible to hold that the provision of Order IX Rule 13 would not be applicable thereto. 4. Per contra, Mr. P Roy, learned counsel for the sole opposite party would argue that no order has been passed by the learned Trial court holding that the proceeding was conducted ex-parte against the defendant. The defendant filed the written statement and thereafter stopped appearing w.e.f. 02.02.2009. Plaintiff led evidence, examined his witnesses but defendant or her counsel did not appear to cross examine the witnesses of the plaintiff. It is under such circumstances, the cross examination was considered to be declined and the evidence of the plaintiff was closed. Thereafter, the learned Trial court fixed the case for evidence by defendant but on the date fixed for the purpose defendant did not appear. According to Mr. P Roy, ex-parte judgment will be one where the defendant at all does not appear and does not file the written statement. In the case in hand, defendant initially appeared, submitted written statement and contested the case. So, the judgment ultimately passed cannot be said to be an ex-parte one. 5. According to Mr. P Roy, ex-parte judgment will be one where the defendant at all does not appear and does not file the written statement. In the case in hand, defendant initially appeared, submitted written statement and contested the case. So, the judgment ultimately passed cannot be said to be an ex-parte one. 5. Having heard the learned counsel for the parties and on perusal of the materials on record, the undisputed position which is noticeable in the present proceeding is that after receipt of summon, the defendant appeared in the case, filed written statement and contested the claim of money decree made by the plaintiff. Issues were framed and the parties were put to place their respective evidence. At this stage the defendant stopped appearing in the court w.e.f. 02.02.2009 and in all subsequent dates he absented from the court. Now the question arises whether such absence of the defendant can be deemed to be his presence in the court under Order XVII Rule 2 of the Code of Civil Procedure. A bare perusal of the provision shows that such a deemed situation would arise if the absentee party participated in the evidence stage of the proceeding to such a substantial extent so as to enable the court to arrive at a decision. In that case, it would be inter-parte proceeding and not ex parte one. Question arises as to when can a hearing be called as ex parte hearing. Ex-parte hearing has been defined in Black’s Law Dictionary as follows:- ”Ex parte, adj. (17c) Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested; of or relating to court action taken by one party without notice to the other, usu. for temporary or emergency relief <an ex parte hearing> <an ex parte injunction>. Despite the traditional one-sidedness of ex parte matters, some courts now require notice to the opposition before what they call an “ex parte hearing.”- Sometimes spelled exparte.- ex parte, adv.” 6. So, an ex parte hearing means one-sided hearing where the opponent remains absent and does not oppose the move of the plaintiff. The court has to decide the dispute after hearing only the plaintiff. So, an ex parte hearing means one-sided hearing where the opponent remains absent and does not oppose the move of the plaintiff. The court has to decide the dispute after hearing only the plaintiff. Naturally, court becomes saddled with an additional responsibility in the matter of ex parte hearing to arrive at a finding as to whether on the basis of the materials placed by the plaintiff a decree as prayed for can be passed. The ex parte hearing is different from decreeing a suit on admission under the provision of Order XII Rule 6 of the Code of Civil Procedure where admission of the opponent forms basis of judgment. In ex parte, plaintiff has to provide the court with material to form an opinion. A decree cannot be passed at the mere ipse dixit of the plaintiff. 7. Next question would be when can an order for ex parte hearing of a suit be passed. Under Order VIII Rule 10 of the Code of Civil Procedure such an occasion may also come. Order VIII Rule 10 of the Code of Civil Procedure provides that if defendant does not file written statement within the time permitted for the purpose or fixed by the court, in that event court shall pronounce judgment against him or make such order as the court may deem fit and proper. So after defendant is found to have defaulted in filing written statement within the time either fixed by the statute or permitted by the court not only can the court pass a judgment on the basis of the pleadings of plaintiff, it can also pass an order deciding to proceed ex parte against the defendant. This is because Order VIII Rule 10 has vested court with much wide power not only for passing judgment but also for any order it deems fit and proper. If in a given case, court is satisfied that mere perusal of the plaint is not sufficient to pass the judgment, court may fix the matter for ex parte hearing and ask the plaintiff to lead evidence either for furnishing material particulars in support of the material facts pleaded in the plaint or for any other cause. For ready reference, Order VIII Rule 10 of the Code of Civil Procedure is quoted below:- “10. For ready reference, Order VIII Rule 10 of the Code of Civil Procedure is quoted below:- “10. Procedure when party fails to present written statement called for by Court.- Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.” 8. The next scope for passing an order to proceed ex parte against the defendant is available under Order IX Rule 6 of the Code of Civil Procedure when the suit passes on to the hearing stage after filing of written statement and framing of issues. Order IX Rule 6 lays down the procedure when only plaintiff appears. Order IX Rule 6 is quoted below:- “6. Procedure when only plaintiff appears.- (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then— (a) When summons duly served- If it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte; (b) When summons not duly served- If it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant; (c) When summons served but not in due time- If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. (2) Where it is owing to the plaintiff’s default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.” 9. (2) Where it is owing to the plaintiff’s default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.” 9. It would appear from Order IX Rule 6 (a) that when summons are duly served but plaintiff only appears when the matter is called up for hearing and the defendant does not appear in that event court may make an order that suit would be heard ex parte. So, even if defendant contests a suit by filing written statement and argue on the first day of hearing i.e. the hearing for framing of issues, then also an order to proceed ex parte against the defendant can be passed by the court provided defendant does not appear. The last exigency of absenting defendant in course of hearing is dealt with under Order XVII Rule 2 of the Code of Civil Procedure. It provides if both parties or any of them fail to appear when the suit is called up for hearing, court may proceed to dispose of the suit in any one of the modes directed in that behalf by Order IX or may also make such other order as it may think fit and proper. There is an explanation under Order IX Rule 6 which provides that when such defaulting party had already led evidence partially prior to such default then court may itself proceed with the case in its discretion as if, such defaulting party is present in the court. This means that once court proceeds to hear a suit under Order XVII Rule 2 of the Code of Civil Procedure when the defaulting party had led some of its evidence in that event he would be deemed to be present during the course of trial and consequently decree passed by way of such hearing would not be considered to be an ex parte decree. The Order XVII Rule 2 along with its explanation is quoted below:- “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. 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.” 10. Order IX Rule 6 of the Code of Civil Procedure deals with three exigencies when plaintiff appears but defendant does not appear. In clause (a) of Order IX Rule 6(1) it is provided that when summon is duly served but defendant does not appear in that event suit would be heard ex-parte against the defendant. Now Order IX Rule 6 deals with the case when it is fixed for hearing. Hearing of a case comes subsequent to filing of pleadings by the parties. Only after defendant files his written statement first, hearing of a suit is done under Order XIV Rule 1 of the Code of Civil Procedure and issues are framed. Thereafter, suit passes on to the second phase, namely, the phase of trial i.e. examination of witnesses by the parties. It is the stage of hearing of the suit and so applicability of Order IX of the Code of Civil Procedure is undisputed when the suit is fixed at evidence stage. Irrespective of whether court records that the suit would be heard ex-parte against defendant in that case but for all intents and purposes by operation of Order IX Rule 6(1)(a) the suit would be ex parte because – i) the suit was at the hearing stage; ii) since defendant had filed written statement so it is to be deemed that summon was duly served on him; iii) since it was in the hearing stage and summons was duly served on the defendant, Order IX Rule 6(1)(a) would come into play; and, therefore, iv) court is at liberty to order that the suit would be heard ex-parte against the defendant. Now the next question arises what is the consequence of passing of such order. Now the next question arises what is the consequence of passing of such order. After court takes recourse to the provision of Order IX Rule 6(1)(a) of the Code of Civil Procedure in that event unless the order is set aside the absentee party would not be able to lead his evidence but he would be entitled to cross examine the witnesses examined by the plaintiff side. 11. In the present case even though defendant did not appear on the day witnesses were examined by the plaintiff by filing affidavit or otherwise, the next date was fixed for cross examination by the defendant. The defendant failed to cross examine the witnesses on the fixed dates and thereafter trial court fixed the case for evidence by the defendant side. Here in this case, defendant remained all along absent and so fixing the case for his evidence after closure of the evidence of the plaintiff was not at his prayer. Had the court passed appropriate order under Order IX Rule 6(1)(a) of the Code of Civil Procedure, in that event there would have been an order by the learned court specifically holding that the suit would be heard ex-parte against the defendant. The difficulty has arisen only because learned court failed to pass an express order under Order IX Rule 6 (1)(a) of the Code of Civil Procedure. Failure on the part of the court to pass an express order while really proceeding ex-parte against the defendant cannot change the nature and character of the ex-parte. If it was the intention of the learned court not to proceed ex-parte although defendant was absent on the date of hearing, he would have been at liberty to adjourned the suit by taking recourse to the provision of Order XVII Rule 1 of the Code of Civil Procedure. What has been done by the trial court is that he accepted the evidence in the absence of the defendant and so for all intents and purposes the suit really proceeded ex-parte against the defendant. 12. This Court in the case of Ramusa Khatoon Mustt. What has been done by the trial court is that he accepted the evidence in the absence of the defendant and so for all intents and purposes the suit really proceeded ex-parte against the defendant. 12. This Court in the case of Ramusa Khatoon Mustt. and ors v. Durga Kakati and ors (supra) considered similar facts and circumstances and held that when defendant does not appear to lead evidence and does not lead evidence, he will not come within sweep of explanation to Order XVII Rule 2 of the Code of Civil Procedure and so such a suit will be considered to have proceeded ex-parte against the defendant and Order IX Rule 13 of the Code of Civil Procedure will be applicable in such cases. Having gone through the reported judgment and comparing the same with the facts and circumstances of the present case, I do not find any reason to differ from the view taken by a Coordinate Bench of this Court on earlier occasion. This case is covered by judgment of this Court in Ramusa Khatoon Mustt. and ors (supra). Accordingly this application stands allowed. 13. Order dated 22.11.2010 passed by learned Civil Judge (Sr. Divn.) No. 2, Kamrup, Guwahati in Money Suit No. 140/2006 was an ex-parte judgment and decree and consequently application under Order IX Rule 13 of the Code of Civil Procedure was very much maintainable. The order dated 07.08.2009 passed by the learned Munsiff in Misc.(J) Case No. 193/2010 and appellate judgment dated 04.01.2014 passed by learned Additional District Judge (FTC) No. 3, Kamrup, Guwahati, in Misc. Appeal No. 8/2013 are set aside. The matter is sent back to the Court of learned Civil Judge No. 2, Kamrup, Guwahati who shall consider the application filed by the defendant for condonation of delay and if he arrives at a finding that the defendant was prevented by sufficient cause from not filing the application under Order IX Rule 13 of the Code of Civil Procedure in the statutory period, in that event he shall consider the application under Order IX Rule 13 on merit and pass necessary order. 14. Revision petition is allowed. No order as to costs. 15. Send down the lower court’s records. Parties shall appear immediately at Court of learned Civil Judge No. 2, Kamrup, Guwahati, on 24.11.2014 to receive necessary orders. 14. Revision petition is allowed. No order as to costs. 15. Send down the lower court’s records. Parties shall appear immediately at Court of learned Civil Judge No. 2, Kamrup, Guwahati, on 24.11.2014 to receive necessary orders. Registry shall take appropriate care so that records are received by the learned Trial court before that day.