Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 1841 (MAD)

P. Chandran v. N. Murugananthi

2015-04-08

P.R.SHIVAKUMAR

body2015
Judgment :- 1. The respondent has entered appearance through a counsel. Mr.C.Sankar Prakash, learned counsel for the appellant and Mr.S.Ramakrishnan, learned counsel for the respondent agreed that the appeal can be disposed of at the stage of admission itself without even calling for the records as one of the grounds on which the Appellate Court confirmed the decree of the trial Court has been challenged is regarding the procedure adopted by the trial Court when the appellant/defendant did not appear for letting evidence on his side. 2. The substantial questions of law thus projected are “(1) Whether the trial Court was wrong in proceeding in pronouncing a judgment on merits considering the evidence adduced on the side of the plaintiff alone, when no witness was examined and no document was produced on the side of the defendant and there was no representation for the defendant when the matter stood listed for the defendant to adduce his evidence? (2) Whether the lower Appellate Court has failed to consider the said aspect while confirming the decree of the trial Court?. 3. The submissions made on both sides regarding the above said substantial questions of law are heard and the judgments of the Courts below, besides the other documents produced in the form of typed set of papers, are also taken for consideration. The appellant is the defendant in O.S.No.59 of 2010 on the file of the Principal District Munsif, Nagercoil. The respondent herein is admittedly the owner of the suit property which is the shop in respect of which the appellant/defendant is tenant. On the basis of the contention of the respondent herein that the lease came to be terminated, that the appellant was in arrears of rent and that the respondent needed the property for her own occupation, the suit came to be filed for recovery of possession. Though the future mesne profits was mistakenly claimed it can be taken as a claim for damages for use and occupation. 4. The appellant herein/defendant, who participated in the trial till the conclusion of the evidence on the plaintiff failed to avail the opportunity given by the trial Court to adduce evidence on his side. Though the future mesne profits was mistakenly claimed it can be taken as a claim for damages for use and occupation. 4. The appellant herein/defendant, who participated in the trial till the conclusion of the evidence on the plaintiff failed to avail the opportunity given by the trial Court to adduce evidence on his side. The trial Court, after giving a number of chances by adjourning the matter for production of the witness on the side of the appellant herein/defendant, finally, chose to close the evidence on the side of the appellant herein/defendant, without a single document being marked on his side and without a single witness being examined on his side that too, on the date when the defendant and his counsel were not present. The learned trial Judge could have very well proceeded with the suit as contemplated under Order 17 Rule 2 of C.P.C by proceeding under any of the provisions under Order 9. On the other hand, the learned trial Judge chose to hold that the evidence adduced on the side of the defendant was sufficient to pronounce a judgment on merits, and thus delivered a judgment, based on which the decree was granted in favour of the respondent/plaintiff as prayed for. 5. Order XVII Rule 2 C.P.C reads as follows:- “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].” 6. The explanation is to the effect that when 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. The explanation is to the effect that when 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. To attract the explanation, a party to the suit should have let in evidence in full or a substantial portion of his evidence should have been let in. The absenting party should have already adduced evidence in full or a substantial portion of his evidence, then only the explanation will enable the Court to proceed with the case as if such a party were present. 7. In this case, admittedly no evidence (oral or documentary) was adduced on the part of the appellant/defendant after closure of evidence on the side of respondent/plaintiff. Of course, the opportunities offered to the appellant herein/defendant to produce witnesses on his side and proceed with the case had not been utilised by the appellant/defendant on the date on which the case stood posted for his evidence. On the particular date, during the absence of appellant herein/defendant and also in the absence of counsel, the trial Court simply closed the evidence on the side of the defendant without even a single witness being examined and single document being marked, which led to the subsequent pronouncement on merits. Such a procedure adopted by the learned trial Judge was not in confirmity with Order 17 Rule 2 CPC and it does not fall under the explanation to Rule 2. This aspect was not properly considered by the learned lower Appellate Judge while deciding the appeal and the learned lower Appellate Judge was carried away by the absence of submission of reasons for the failure of the defendant to avail the opportunity given by the trial Court, and took a decision to dismiss the appeal and confirm the judgment of the trial Court. The said approach is not legally sustainable and hence this Court answers the substantial questions of law as follows. “The procedure adopted by the trial Court in pronouncing the judgment on merits in the absence of any evidence adduced on the side of the defendant was against the legal principles and the same is liable to be set aside. The said approach is not legally sustainable and hence this Court answers the substantial questions of law as follows. “The procedure adopted by the trial Court in pronouncing the judgment on merits in the absence of any evidence adduced on the side of the defendant was against the legal principles and the same is liable to be set aside. The lower appellate Court also failed to consider the same.” 8. In the result, the Second Appeal is allowed in part. The decree of the lower Appellate Court, dated 13.02.2014, made in A.S.No.45 of 2013 is set aside. The said appeal is allowed with the result that the decree of the trial Court dated 27.6.2011 made in O.S.No. 59 of 2010 shall stand set aside. The matter is remitted back to the Trial Court for fresh disposal after affording another opportunity to the defendant to adduce evidence. It is made clear that in case the defendant fails to avail such opportunity, it is open to the Trial Court to proceed strictly in accordance with Order XVII Rule 2 CPC. The Trial Court shall dispose of the suit within three months from the date of receipt of a copy of this Judgment. No costs. Connected M.P(MD).No.1 of 2014 is closed.