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2018 DIGILAW 234 (KER)

M. K. FATHIMA v. KUNHIPATHU

2018-03-09

P.N.RAVINDRAN, R.NARAYANA PISHARADI

body2018
JUDGMENT : R. Narayana Pisharadi, J. Is the decree passed in the suit, in which the appellant is the first defendant, an ex parte decree or not? This is the bone of contention between the parties to be decided in this appeal. 2. The appellant is the first defendant in the suit O.S.No.129 of 2009 on the file of the Subordinate Judge's Court, Kozhikode. The respondents are the plaintiffs and the other defendants in the suit. 3. The suit was for partition of movable as well as immovable properties. On 06.06.2017, the lower court passed a preliminary decree for partition of the plaint schedule properties. The appellant then filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') for setting aside the decree in the suit on the basis that it is an ex parte decree passed against her. The lower court dismissed the aforesaid application stating that the decree passed in the suit is not an ex parte decree. This appeal is filed challenging the aforesaid order passed by the lower court. 4. The suit was instituted in the year 2009. The trial of the suit got delayed for various reasons. In this context it is relevant to note that when the suit came up for trial on 06.01.2016, the appellant was set ex parte as her counsel reported no instructions. Then the evidence of the plaintiffs was adduced. As the other defendants in the suit had already been set ex parte, the suit was decreed ex parte against the defendants on 18.01.2016. Subsequently, on application made by the appellant, the ex parte decree passed in the suit was set aside. Thereafter, after several adjournments, the evidence of the plaintiffs in the suit was closed on 01.12.2016 and the case was posted to 05.12.2016 for the evidence of the defendants. However, the appellant then filed an application for amendment of the written statement and it was dismissed by the trial court. The appellant challenged that order before this Court by filing O.P(C) No. 329 of 2017. This Court dismissed the Original Petition. Thereafter, on 03.03.2017, the trial court posted the suit for the evidence of the defendants. 5. The following entries in the proceedings sheet of the suit reveal what happened thereafter during the trial of the suit. The appellant challenged that order before this Court by filing O.P(C) No. 329 of 2017. This Court dismissed the Original Petition. Thereafter, on 03.03.2017, the trial court posted the suit for the evidence of the defendants. 5. The following entries in the proceedings sheet of the suit reveal what happened thereafter during the trial of the suit. Date Entry in the proceedings sheet 03/03/17 As per the order dated 14.02.2017, Honourable High Court disposed of O.P.(C) No.329 of 2017. For defendants' evidence to 16.03.2017 16/03/17 For defendants' evidence counsel prays for time. 23.03.2017 23/03/17 For defendants' evidence NFT. 25.03.2017 25/03/17 For defendants' evidence. 27.03.2017 27/03/17 For defendants' evidence counsel prays for time. Last chance 01.04.2017 01/04/17 No evidence adduced by the defendants. Evidence closed. For hearing 04.04.2017. 04/04/17 Defendants filed I.A.No.992 of 2017. Allowed. For hearing 23.05.2017 23/05/17 Heard. For judgment 06/06/2017. 06/06/17 Suit is decreed with cost. Preliminary decree is passed. Suit adjourned sine die. 6. The appellant had filed the application I.A.No.992 of 2017 for adjourning the trial of the suit to a date after the summer vacation. In the affidavit filed along with that application, the appellant had stated that she had filed S.L.P. No. 8110 of 2017 before the Hon'ble Supreme Court and that petition would come up for hearing before the Apex Court before 20.04.2017. On 04.04.2017, the trial court allowed I.A.No.992 of 2017 and adjourned the trial of the suit to 23.05.2017. In this context it is to be noted that the prayer made in the application I.A.No.992 of 2017 filed by the appellant was to adjourn the trial of the suit, to the date on which the court re-opens after the summer vacation, for the evidence on her side. On 23.05.2017, the appellant did not adduce any evidence. The trial court then heard arguments of the counsel for the plaintiffs as well as the defendants and adjourned the suit to 06.06.2017 for judgment. The judgment in the suit was pronounced on 06.06.2017. 7. We have heard the learned counsel for the appellant as well as the contesting respondents/plaintiffs. 8. On 23.05.2017, the appellant did not adduce any evidence. The trial court then heard arguments of the counsel for the plaintiffs as well as the defendants and adjourned the suit to 06.06.2017 for judgment. The judgment in the suit was pronounced on 06.06.2017. 7. We have heard the learned counsel for the appellant as well as the contesting respondents/plaintiffs. 8. Learned counsel for the appellant contended that the appellant as well as her counsel was absent on 23.05.2017 before the trial court and no portion of the evidence on the side of the appellant had been adduced in the suit and therefore, the decree passed in the suit should be treated as an ex parte decree. Learned counsel would contend that the disposal of the suit by the trial court was under Order XVII Rule 2 of the Code. 9. Per contra, learned counsel for the contesting respondents/plaintiffs contended that the trial court had adjourned the suit to 23.05.2017 on the application made by the appellant. Learned counsel would submit that adjournment of the trial of the suit to that date was for the specific purpose of adducing evidence on the side of the appellant. The appellant did not adduce evidence in the suit on 23.05.2017 and therefore, the trial court heard the arguments of both sides and adjourned the suit for passing judgment. Learned counsel would contend that the disposal of the suit was under Order XVII Rule 3(a) of the Code and therefore, the decree passed in the suit cannot be treated as an ex parte decree. 10. Order XVII Rules 2 and 3 of the Code read 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. 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. 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”. 11. Order XVII Rule 2 of the Code permits the court to adopt any of the modes provided in Order IX or to make such order as it thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The explanation thereto gives a discretion to the Court to proceed with the case as if the party were present. But such a course can be adopted only when the absentee party has already led evidence or a substantial portion thereof. Order XVII Rule 3(a) of the Code applies where the adjournment has been given for one of the purposes mentioned in the Rule and though the parties are present, the party to whom time has been granted commits default in complying with the direction of the court. Order XVII Rule 3(b) of the Code applies when the adjournment has been given for one of the purposes mentioned in the Rule and when the parties or any of them is absent. Under Order XVII Rule 3(b) of the Code, the only course open to the court is to proceed under Rule 2. Rules 2 and 3 of Order XVII operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. Under Order XVII Rule 3(b) of the Code, the only course open to the court is to proceed under Rule 2. Rules 2 and 3 of Order XVII operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the Rule (See Janakiramaiah Chetty v. Parthasarthi : AIR 2003 SC 3527 ). 12. Learned counsel for the appellant would rely upon the decision in Janakiramaiah Chetty's case (supra) in support of his contention that the decree passed in the suit has to be treated as an ex parte decree by virtue of the provision contained in Order XVII Rule 2 of the Code. There is no merit in this contention. In the instant case, Order XVII Rule 2 of the Code has no application for the simple reason that adjournment of the suit from 04.04.2017 to 23.05.2017 was granted by the trial court specifically for the purpose of adducing evidence by the appellant. The appellant had filed the application I.A.No.992 of 2017 for adjourning the trial of the suit to the date of re-opening of the court after the summer vacation for adducing evidence on her side. On 04.04.2017, the trial court had allowed the application I.A.No.992 of 2017 and adjourned the trial of the suit to 23.05.2017. On 23.05.2017, the appellant did not adduce evidence and the trial court heard counsel on both sides and posted the suit to 06.06.2017 for passing judgment. The judgment in the suit was pronounced on 06.06.2017, and a preliminary decree was passed in the suit. Since the adjournment of the suit to the date 23.05.2017 was granted by the court for the specific purpose of adducing evidence by the appellant, the provisions contained in Order XVII Rule 3 of the Code apply to the facts of the case. 13. Rule 3 of Order XVII of the Code applies to a case where any party to a suit to whom time has been granted fails (a) to produce his evidence or (b) to cause the attendance of the witnesses or (c) to perform any other act necessary to the further progress of the suit, for which time has been allowed. Rule 3 of Order XVII of the Code applies to a case where any party to a suit to whom time has been granted fails (a) to produce his evidence or (b) to cause the attendance of the witnesses or (c) to perform any other act necessary to the further progress of the suit, for which time has been allowed. On the failure of the party to do the act for which time has been granted, the court may, notwithstanding the default, proceed in one of the two ways, that is, (a) if the parties are present, proceed to decide the suit forthwith or (b) if the parties or any of them is absent, proceed under Rule 2. Even where the conditions requisite under Rule 3 are satisfied, the court can proceed to decide the suit on merits only when the parties are present. If the parties are or any one of them is absent, the court cannot dispose of the suit on merits. It can then proceed only under Rule 2. 14. The question now is whether Rule 3(a) or Rule 3(b) of Order XVII of the Code applies to the facts of the case. The answer to this question depends on the answer to the question whether the appellant was absent or present on 23.05.2017, the date to which the suit was adjourned for producing her evidence. 15. In cases where a party is absent, the only course as mentioned in Order XVII Rule 3(b) of the Code, is to proceed under Rule 2 (See Chander Manchanda v. Janki Manchanda : AIR 1987 SC 42 ). Learned counsel for the appellant would submit that the appellant as well as the counsel for the appellant were absent on 23.05.2017 and therefore, it is a clear case in which the court should have proceeded under Order XVII Rule 2 of the Code and passed an ex parte decree in the suit. Learned counsel would further submit that in such a situation, even if the court passes a decree on merits, it can only be treated as an ex parte decree. Learned counsel would further submit that in such a situation, even if the court passes a decree on merits, it can only be treated as an ex parte decree. Learned counsel would further submit that even if the counsel for the appellant was present in the court on 23.05.2017, it was only for the purpose of seeking an adjournment of the trial of the suit and therefore, his presence on that day could not be treated as presence of the appellant. 16. The entries made by the court in the records of the suit do not support the submissions made by the learned counsel for the appellant. The proceedings sheet of the suit shows that on 23.05.2017 the lower court heard the arguments of the counsel. The lower court has stated in the impugned order as follows: “On 4-4-2017, defendants filed IA.992/2017 seeking time for adducing evidence and also stated that the defendants have filed special leave petition before the Hon'ble Supreme Court challenging the order of the Hon'ble High Court which confirmed the order of this court. The said IA was allowed and the time was granted to the defendants till 23-05-2017. On that day defendants have not produced any order of the Hon'ble Supreme Court and not adduced any evidence. Therefore, on that day, I have heard the matter and pronounced the judgment on 06-06-2017 decreeing the suit.” Again the learned Sub Judge has stated in the impugned order as follows: “There was representation from the side of the defendants all along the suit and they had actively prosecuted the matter. Mere fact that the defendants failed to adduce evidence, does not lead to a situation that the suit was decreed ex parte.” In the judgment pronounced in the suit on 06.06.2017, in paragraph 12, it is recorded by the lower court as follows: “12. Heard both sides.” 17. The entries in the records of the suit made by the learned Sub Judge, as mentioned above, would show that on 23.05.2017 the appellant did not adduce evidence and the trial court heard the arguments of the counsel on both sides and adjourned the suit to 06.06.2017 for pronouncing judgment. The judgment was pronounced on 06.06.2017. Therefore, the contention of the learned counsel for the appellant that the appellant as well as her counsel were absent on 23.05.2017 cannot be accepted. The judgment was pronounced on 06.06.2017. Therefore, the contention of the learned counsel for the appellant that the appellant as well as her counsel were absent on 23.05.2017 cannot be accepted. Learned counsel for the appellant would contend that the appearance of the counsel, if any, on 23.05.2017 before the trial court was only for the purpose of seeking an adjournment of the trial of the suit and such appearance cannot be considered as effective appearance of the appellant. There is no substance in this contention. There is nothing to show that the appearance of the counsel for the appellant before the trial court on 23.05.2017 was for seeking an adjournment of the trial of the suit. The appellant has no case that on 23.05.2017 she had made any application through her counsel for an adjournment of the trial of the suit. The appellant has no case that her counsel reported no instructions from her on that day. In fact, the lower court has specifically stated in the judgment that both sides were heard. The entry in the proceedings sheet in the suit shows that on 23.05.2017 arguments of the counsel were heard. What is discernible from the records of the suit is that the appellant did not adduce evidence on 23.05.2017 for which time was granted by the court and that her counsel was present in the court on that date and the trial court heard the arguments of the counsel for the appellant. It follows that the appellant was present in the court on 23.05.2017 through her counsel. Appearance of a party in the court could be in person or by pleader. What is clear from the judgment passed on 06.06.2017 is that the decision was rendered on merits based on the plaintiff's evidence alone. The defence contentions also were examined on merits with reference to the evidence available before the court. There is nothing to show that the appellant was absent when the case was taken up for trial on 23.05.2017. Order XVII Rule 3(a) of the Code provides that where there is failure of the party to whom time was granted to adduce evidence or to perform any other act necessary to the further progress of the suit, the court may, "if the parties are present, proceed to decide the suit forthwith". Order XVII Rule 3(a) of the Code provides that where there is failure of the party to whom time was granted to adduce evidence or to perform any other act necessary to the further progress of the suit, the court may, "if the parties are present, proceed to decide the suit forthwith". A joint reading of Rules 2 and 3 of Order XVII of the Code makes it clear that resort to Rule 2 invoking the provision in Rule 3(b) would be possible only in a case where the party concerned is absent. Therefore, in the instant case, the disposal of the suit was under Order XVII Rule 3(a) of the Code and not under Order XVII Rule 3(b) of the Code. 18. Learned counsel for the appellant would contend that the entries in the records of the suit to the effect that on 23.05.2017 the trial court heard counsel on both sides, are wrong. Such a contention cannot be accepted by this Court. In State of Maharashtra v. Ramdas Shrinivas Nayak: AIR 1982 SC 1249 , the Hon'ble Supreme Court has held as follows: “We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30 ). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there.” 19. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there.” 19. The legal principle in this regard was reiterated in Roop Kumar v. Mohan Thedani : AIR 2003 SC 2418 as follows: “Statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this Court to the contrary'. 20. In Commissioner of Income Tax v. Abdul Khader : 2006 KHC 779, this Court has held as follows: “Even if a wrong record has been made in the order as to what transpired before the Court or Tribunal the remedy of the aggrieved party is not to dispute the record before a higher forum but to seek a review before the lower forum itself. The Judge's record is conclusive and neither the lawyer nor the litigant is entitled to contradict it except before the Judge himself and nowhere else. It is not open to the assessee to dispute before us the correctness of the above observation in the order of the Tribunal. The question as to what transpired before a court or Tribunal, if can be gathered from the proceedings or order of the Tribunal, then no party will ordinarily be permitted to take exception to or contradict the statement to that effect in the order. What has been stated in the order should be taken as the last word on that question. If the parties or their counsel are permitted to indulge in a controverting exercise then there will be no end to it”. 21. The appellate court cannot launch into an enquiry as to what transpired in the court below. Public policy bars it. Judicial decorum restrains it. Matters of judicial record are unquestionable and not open to doubt. If the parties or their counsel are permitted to indulge in a controverting exercise then there will be no end to it”. 21. The appellate court cannot launch into an enquiry as to what transpired in the court below. Public policy bars it. Judicial decorum restrains it. Matters of judicial record are unquestionable and not open to doubt. It is not open to the appellant to contend before this Court to the contrary. 22. Learned counsel for the appellant would contend that in the cause title of the judgment in the suit, it is mentioned that the appellant (first defendant) did not enter appearance and therefore, it is evident that the appellant had been set ex parte in the suit. This contention also cannot be accepted. The entries in the cause title of the judgment are made by the office of the court and not by the Presiding Officer. The appellant herself has no case that she did not enter appearance in the suit. 23. In the light of the discussion above, we have no hesitation to come to the conclusion that the disposal of the suit by the trial court was not under Order XVII Rule 2 of the Code or under Order XVII Rule 3(b) of the Code. The disposal of the suit was under Order XVII Rule 3(a) of the Code. The decree passed in the suit cannot therefore be treated as an ex parte decree. Therefore, the lower court was right in dismissing the application filed by the appellant under Order IX Rule 13 of the Code for setting aside the decree passed in the suit. The appeal is liable to be dismissed. 24. Before we part with the case, we think it appropriate to extract here the observations made by the Apex Court in Shiv Cotex v. Tirgun Auto Plast Pvt. Ltd : (2011) 9 SCC 678 , which read as follows: “15. It is sad, but true, that the litigants seek - and the courts grant - adjournments at the drop of the hat. In the cases where the judges are little pro - active and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further. In the cases where the judges are little pro - active and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further. The case in hand is a case of such misplaced sympathy. It is high time that courts become sensitive to delays in justice delivery system and realize that adjournments do dent the efficacy of judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The courts, particularly trial courts, must ensure that on every date of hearing, effective progress takes place in the suit. 16. No litigant has a right to abuse the procedure provided in the CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system. It is true that cap on adjournments to a party during the hearing of the suit provided in proviso to Order XVII R.1 CPC is not mandatory and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso to Order XVII R.1 CPC should be maintained. When we say ‘justifiable cause’ what we mean to say is, a cause which is not only ‘sufficient cause’ as contemplated in sub-rule (1) of Order XVII CPC but a cause which makes the request for adjournment by a party during the hearing of the suit beyond three adjournments unavoidable and sort of a compelling necessity like sudden illness of the litigant or the witness or the lawyer; death in the family of any one of them; natural calamity like floods, earthquake, etc. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on way to the court and such like cause. The list is only illustrative and not exhaustive. 17. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on way to the court and such like cause. The list is only illustrative and not exhaustive. 17. However, the absence of the lawyer or his non - availability because of professional work in other court or elsewhere or on the ground of strike call or the change of a lawyer or the continuous illness of the lawyer (the party whom he represents must then make alternative arrangement well in advance) or similar grounds will not justify more than three adjournments to a party during the hearing of the suit. The past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit - whether plaintiff or defendant - must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don't, they do so at their own peril”. 25. In the result, the appeal fails and it is dismissed. The parties shall suffer their respective costs in the appeal.