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2016 DIGILAW 419 (GAU)

Padmakshi Baruah v. Sreemanta Kumar Bezbaruah

2016-05-15

N.CHAUDHURY

body2016
JUDGMENT AND ORDER : N. Chaudhury, J. Heard Mr. Sheeladitya, learned counsel for the petitioners and Mr. PK Kalita, learned counsel for the respondents. 2. This application under Article 227 of the Constitution of India is directed against the order dated 20.11.2015 passed by learned Civil Judge No. 3, Kamrup (M) at Guwahati allowing an application under Order 9, Rule 13 of the Code of Civil Procedure. 3. The present petitioners, as plaintiff, instituted title suit No. 205/2006 in the court of learned Civil Judge No. 3, Guwahati praying for declaration of their right, title and interest and confirmation of possession over the suit property and also for further declaration that irrevocable power of attorney executed on 05.10.2005 is fraudulent and not executed by the plaintiff along with other prayer for declaration but no consequential prayer. The defendants No. 1 and 2 by filing written statement contested the suit and thereafter when the suit reached the evidence stage and the date was fixed for cross examination of PW 1 on Commission, the learned counsel for the defendants did not turn up for cross examination despite request made by him by the learned Advocate Commissioner over telephone. Accordingly, the report was submitted by the Advocate Commissioner whereupon defendant made a prayer for giving a next chance for cross examination of PW 1 and the learned court by order dated 18.01.2011 allowed the prayer upon payment of fresh commission fee of Rs. 1,000/-. The amount was deposited by the defendant side but on the fixed day again the learned counsel remained absent. Under such circumstances, the matter was placed before the learned court. On 26.07.2011, the learned court observed that the plaintiff is present but defendant side is absent without any step and accordingly evidence of PW 1 was accepted without cross examination. The case was fixed on 12.08.2011 for cross of PW 2. Even on that date, the learned counsel for the defendants did not appear. Accordingly, the learned court proceeded ex parte against the defendants and by judgment and decree dated 17.03.2012 decreed the suit of the plaintiff in entirety. It is thereafter the defendants appeared and filed an application under Order 9, Rule 13 of the Code of Civil Procedure praying for setting aside of the aforesaid judgment and decree. This application was numbered as Misc. (J) Case No. 255/2012. It is thereafter the defendants appeared and filed an application under Order 9, Rule 13 of the Code of Civil Procedure praying for setting aside of the aforesaid judgment and decree. This application was numbered as Misc. (J) Case No. 255/2012. In this application, the defendants alleged that their learned counsel did not take proper steps and did not keep them posted about the developments from time to time. The defendant No. 1 mostly remained in Delhi in course of his business for which he could not personally look into the matter. He, however, asked the learned counsel on a number of times about the developments when learned counsel wrongly informed that the things were on the track. At a given point of time the learned counsel gave an impression that original records stood misplaced for which there was no next day fixed. According to the defendants, they remained satisfied with the information furnished by the learned counsel but started startled only after the impugned judgment and decree was passed by the learned trial court and then came to know that the said judgment and decree was ex parte against them. Since they were prevented by inaction of their learned engaged counsel, the defendants moved the application under Order 9, Rule 13 of the Code of Civil Procedure praying for setting aside the judgment and decree and for giving them chance to contest the suit afresh. This prayer of the defendants under Order 9, Rule 13 of the Code of Civil Procedure was contested by the plaintiff by filing a written objection. In the written objection the basic case sought to be made out by the plaintiff was that the judgment and decree passed by the learned trial court on 17.03.2012 was really an inter-party decree and so the provision of Order 9, Rule 13 of the Code of Civil Procedure does not apply. In the objection, the plaintiff did not deny that defendant No. 1 mostly resided in Delhi as pleaded in paragraph 12 of the Misc. (J) Case No. 255/2012. Since the denial was evasive and not specific, the learned trial court had no other option but to accept such contention. In the objection, the plaintiff did not deny that defendant No. 1 mostly resided in Delhi as pleaded in paragraph 12 of the Misc. (J) Case No. 255/2012. Since the denial was evasive and not specific, the learned trial court had no other option but to accept such contention. After hearing both sides, learned trial court passed order dated 20.11.2015 accepting the contentions put forward by the defendants that the learned engaged counsel of the defendants did not take proper steps and was responsible for the whole development due to which the defendants remained at dark and the proceeding was held behind their back. On the law point, the learned trial court considered the earlier judgment of this court in the Case of Msstt. Ramusa Khatoon and others v. Durga Kakati and others reported in 2007 (1) GLT 886 and was of the view that when the defendant's evidence has not been recorded and the defendant fails to appear on the date fixed for evidence, the court cannot proceed under Order 17, Rule 3 of the Code of Civil Procedure and rather the court is duty bound to proceed under Order 17, Rule 2 and so the decree, if any passed, would be a decree under Order 9 and not an inter-party decree for explanation to Rule 2 Order 17 would not in such case be attracted. This law was laid down by this court in paragraph 11 and 12 of the case Msstt. Ramusa Khatoon (supra). The learned trial court accepted the provision and having placed reliance upon the judgment of this court arrived at the finding that judgment and decree dated 17.03.2012 was a judgment and decree under Order 9 of the Code of Civil Procedure and that being the position, found the application under Order 9, Rule 13 of the Code of Civil Procedure maintainable. Once objection of the maintainability of application under Order 9, Rule 13 of the Code of Civil Procedure was found to be not acceptable, the learned trial court accepted the explanation furnished in the application under Order 9, Rule 13 of the Code of Civil Procedure and was satisfied that the defendants were prevented by sufficient cause for not appearing on the dates fixed or for taking steps as required. Accordingly, by order dated 20.11.2015 the ex parte judgment and decree dated 17.03.2012 was set aside and called for the records of title suit No. 205/2006 for necessary follow up orders. In so doing, the learned trial court did not pass any order for imposition of cost upon the defendants. 4. The aforesaid judgment and order dated 20.11.2015 has been challenged by the plaintiff before this court under Article 227 of the Constitution of India, inter alia, on the ground that the order dated 20.11.2015 is vitiated for erroneous interpretation of the provision of Order 17, Rule 2 of the Code of Civil Procedure. According to Mr. Sheeladitya, once written statement was filed and defendant did not lead any evidence, in that event, it is an inter-party judgment and cannot be construed to be an ex parte judgment at all. Once it is so held, the very order passed on 20.11.2015 by the learned trial court becomes vitiated for jurisdictional error. 5. Per contra, Mr. P.K. Kalita, learned counsel appearing for the opposite parties/ defendants herein, places reliance on the judgment of this court in the case of Msstt. Ramusa Khatoon (supra) on the basis of which the learned trial court has passed the impugned order. Order 17, Rule 2 of the Code of Civil Procedure is quoted below for ready reference:- “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 an 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. In the aforesaid case, this court was of the view that when the defendant's evidence has not been recorded and he fails to appear on the day fixed for evidence, the provision of Order 17, Rule 3 would not apply. In the aforesaid case, this court was of the view that when the defendant's evidence has not been recorded and he fails to appear on the day fixed for evidence, the provision of Order 17, Rule 3 would not apply. Rule 3 Order 17 provides that 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, then, notwithstanding such default the Court may, if the parties are present, either proceed to decide the suit forthwith or if the parties are, or any of them is, absent, proceed under Rule 2. In the present case date was fixed for evidence of the defendants. On that day, the defendants did not appear and did not take any step. Under such circumstances, it comes under Order 17, Rule 3 (b) of the Code of Civil Procedure which means that the learned court has to proceed under Rule 2. Thus, even without taking recourse to the ratio laid down by this court in the case of Msstt. Ramusa Khatoon (supra) it is apparent that only if the parties were present then only the suit could have been decided forthwith. In the absence of any of the parties, the only recourse open to the Court is to proceed under Rule 2 which means that to proceed ex parte either for passing decree or for dismissing for default. If the plaintiff is absent in that event the suit can be dismissed for default at the stage and if the defendant is absent in that event the suit can be decided ex parte. So under such circumstances, the remedy for the defaulting party would be either to file an application under IX Rule 9 of the Code of Civil Procedure or to file an application under Order 9, Rule 13 of the Code of Civil Procedure, as the case may be. Here in this case, the defendant was absent and so the decree has to be considered to be decree passed under Order 9, Rule 6 of the Code of Civil Procedure. Here in this case, the defendant was absent and so the decree has to be considered to be decree passed under Order 9, Rule 6 of the Code of Civil Procedure. This is why filing of the application under Order 9, Rule 13 of the Code of Civil Procedure could not have been held as not maintainable by the learned trial court. The learned trial court appears to have exercised jurisdiction vested on it by law in accordance with law and so, there is no scope to interfere with such exercise. But since the suit has been directed to be restored to file and the decree has been set aside after long delay of 3 (three) years, the ends of justice require that appropriate cost ought to have been imposed on the defendant. In that view of the matter, the revision petition stands disposed of. The defendants shall pay a cost of Rs. 5,000/- to the learned trial court on the next date fixed and thereupon the learned trial court shall pass appropriate order in accordance with law. 7. Parties shall appear before the learned trial court on 20th June, 2016 and thereafter the learned trial court shall expeditiously decide the suit preferably within a period of 3 months.