Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 214 (MP)

Premvati v. Umavati

2020-02-10

SANJAY DWIVEDI

body2020
JUDGMENT : 1. With the consent of learned counsel for the parties, the matter is heard finally. 2. This first appeal has been preferred under Section 96 of the Code of Civil Procedure, 1908 [hereinafter referred to as 'the C.P.C], challenging the judgment and decree dated 30.08.2019 passed by the XI Additional District Judge, Rewa, in a Civil Suit No.15-A/2015, whereby the suit of the plaintiffs/appellants has been dismissed on merits. 3. A short question has been raised by the appellants that in view of the facts and circumstances of the case, the Court below has committed error in deciding the suit on merits whereas the same ought to have been dismissed by the Court as per the provisions of Order IX Rule 8 of the C.P.C. 4. Learned senior counsel for the appellants submits that the appellants are not aggrieved with the dismissal of the suit, but raising an objection in respect of the manner in which the suit has been decided. It is also contended by learned senior counsel that the Court below has observed that in accordance with the provisions of Order XVII Rule 2 of the C.P.C., the order has been passed but that was not under the said provision and the Court has proceeded taking shelter of the explanation appended thereto, whereas the same was not applicable in the facts and circumstances of the case. 5. Considering the aforesaid short question involved, the matter is heard finally. 6. To resolve the controversy involved in the case and to answer the question as to whether the trial Court has rightly proceeded under Order XVII Rule 2 C.P.C. deciding the matter on merits or the Court below ought to have dismissed the suit simpliciter as per the requirement of Order IX Rule 8 of the C.P.C., certain necessary facts in brief are required to be taken note of, those are as follows:- That, the plaintiffs have filed the suit for declaration and partition claiming l/5th share in the suit property and also sought declaration that the Will executed in favour of defendant No.2 shall be declared void to the extent of interfering in the share of the plaintiffs. The suit was filed on 02.03.2009 along with the documents as mentioned in the List of Documents. The written statement was filed by the defendants and they have also filed a separate suit along with their written statement. The suit was filed on 02.03.2009 along with the documents as mentioned in the List of Documents. The written statement was filed by the defendants and they have also filed a separate suit along with their written statement. Vide order dated 05.07.2014, the proceedings of said civil suit i.e. Civil Suit No.25-A/2010 were stayed in pursuance to the provisions of Section 10 of the C.RC. Issues were framed on 09.10.2014 and thereafter the case was fixed for 16.10.2014 for recording the evidence, but no evidence of the plaintiffs was recorded although there were several applications filed and even decided by the Court. On 03.11.2015, last chance was granted to the plaintiffs to record their evidence and thereafter, continuously several opportunities were granted and finally on 14.03.2016, last chance was given with a cost of Rs.200/-. On 21.09.2016, a warning was given to the plaintiffs giving them one more opportunity with a condition that if the evidence is not recorded, then the right to lead evidence would be closed. However, thereafter, an application under Order XXII Rule 3 was filed and decided and again on 06.12.2016, one more opportunity was granted to the plaintiffs to lead evidence and the case was fixed for 19.12.2016. On this date, the Court waited till 04:30 p.m. for the plaintiffs and his witnesses, but nobody appeared and they remained absent, even affidavits of the witnesses of plaintiffs were not produced. The right of the plaintiffs to lead evidence was, therefore, closed and the Court fixed the case for recording the evidence of defendants. Even after fixing the case for recording the evidence of the defendants, the plaintiffs never appeared, accordingly, the statement of the witnesses of defendants were recorded. On 25.04.2017 and 05.05.2017, after recording the statement of defendants' witnesses, their evidence was closed and the case was fixed for final arguments. Several dates were given for final arguments and on 18.08.2017, the counsel for the plaintiffs appeared and pleaded no instructions, as such the order-sheet was written though objection was raised by the defendants saying that the case be decided on merits. After pleading no instructions by the counsel for the plaintiffs, they have been informed regarding the date of arguments. Several dates were given for final arguments and on 18.08.2017, the counsel for the plaintiffs appeared and pleaded no instructions, as such the order-sheet was written though objection was raised by the defendants saying that the case be decided on merits. After pleading no instructions by the counsel for the plaintiffs, they have been informed regarding the date of arguments. But even after the notice, nobody appeared for the plaintiffs and then the objection of the defendants was taken note of by the Court and considering the explanation attached with the provision of Order XVII Rule 2 of the C.P.C., the case was decided on merits and the issues framed by the Court have been answered. 7. Being aggrieved with the judgment and decree passed by the Court below dismissing the suit of the plaintiffs observing therein that the evidence adduced by the defendants is more authentic and the suit of the plaintiffs was accordingly, dismissed. 8. Learned senior counsel for the appellants submits that in view of the existing facts and circumstances of the case, the Court below should have dismissed the suit simpliciter as per Order IX Rule 8 of the C.P.C., but the Court has wrongly interpreted the explanation attached with the provision of Order XVII Rule 2 and without considering the fact that the said explanation had no role in the matter and the Court was not required to record the evidence of the defendants and should have dismissed the suit on the date when the plaintiffs did not attend the case. 9. Learned senior counsel for the appellants relying upon a decision reported in (1986) 4 SCC 699 parties being Prakash Chander Manchanda & Another Vs. Janki Manchanda, submits that the Court should have proceeded under Order XVII Rule 2 and should have dismissed the suit as the plaintiffs failed to appear on the date fixed for. 10. In the case of Prakash Chander Manchanda (supra), the Supreme Court has taken note of the provisions of Order XVII Rule 2 and Order XVII Rule 3 of the C.RC. and has observed as under:- "5. Learned counsel for the parties submitted at length the controversy that existed before the amendment of Code of Civil Procedure in 1976 about the interpretation of Order 17 Rule 2 and Order 17 Rule 3. and has observed as under:- "5. Learned counsel for the parties submitted at length the controversy that existed before the amendment of Code of Civil Procedure in 1976 about the interpretation of Order 17 Rule 2 and Order 17 Rule 3. Apparently there were two views, one was that Order 17 Rule 3 could be used for deciding the matter on merits if the party is present but has failed to do what was expected of that party to do and this rule could not be used against a party who was present whereas the other view was that even if a party is absent but has failed to do what was expected of him then it was the discretion of the court either to proceed under Order 17 Rule 2 or under Order 17 Rule 3. 6. In some decisions, the High Courts have gone to the extent of saying that even if the trial court disposes of the matter as if it was disposing it on merits under Order 17 Rule 3 still if the party against whom the decision was pronounced was absent it could not be treated to be a disposal in accordance with Order 17 Rule 3 and provisions of Order 9 will be available to such a party either for restoration or for setting aside an ex parte decree. Learned counsel placed before us a number of decisions of various High Courts on this aspect of the matter. But in our opinion in view of the amendment to these two rules which have been made by 1976 amendment of the Code of Civil Procedure it is not disputed that to the facts of this case, Code of Civil Procedure as amended will be applicable and therefore it is not necessary for us to go into that question. Order 17 Rule 2 and Rule 3 as they now stand reads: Order 17, 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 9 or make such other order as it thinks fit. -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 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. Order 17, Rule 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 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. It is clear that in cases where a party is absent the only course as mentioned in Order 17 Rule 3(b) is to proceed under Rule 2. It is therefore clear that in absence of the defendant, the court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as it now stands also clearly lays down that if any one of the parties fails to appear, the court has to proceed to dispose of the suit in one of the modes directed under Order 9. The explanation to Rule 2 gives a discretion to the court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure. It is therefore clear that after this amendment in Order 17 Rule 2 and 3 of the Code of Civil Procedure there remains no doubt and therefore there is no possibility of any controversy. In this view of the matter it is clear that when in the present case on October 30, 1985 the case was called nobody was present for the defendant. It is also clear that till that date the plaintiff's evidence has been recorded but no evidence for defendant was recorded. The defendant was only to begin on this date or an earlier date when the case was adjourned. It is therefore clear that up to the date i.e. October 30,1985 when the trial court closed the case of defendant there was no evidence on record on behalf of the defendant. In this view of the matter therefore the explanation to Order 17 Rule 2 was not applicable at all. Apparently when the defendant was absent Order 17 Rule 2 only permitted the court to proceed to dispose of the matter in any one of the modes provided under Order 9. 7. It is also clear that Order 17 Rule 3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of the defendant was closed nobody appeared for the defendant. In this view of the matter it could not be disputed that the court when proceeded to dispose of the suit on merits had committed an error. Unfortunately even on the review application, the learned trial court when on in the controversy about Order 17 Rule 2 and 3 which existed before the amendment and rejected the review application and on appeal, the High Court also unfortunately dismissed the appeal in limine by one word." 11. The Court below in the impugned judgment and decree has observed in Paragraph-10 that on a date fixed, nobody appeared on behalf of the plaintiffs, then in view of the objection raised by the defendants, the Court has proceeded under Order VII Rule 10 and taking note of the explanation attached to the said provision, the case has been decided on merits. The provisions of Order XVII Rule 2 and Order XVII Rule 3 of the C.RC. are quoted herein below:- "Order XVII- Adjournments. 2. The provisions of Order XVII Rule 2 and Order XVII Rule 3 of the C.RC. are quoted herein below:- "Order XVII- Adjournments. 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. 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 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.]" 12. Considering the aforesaid provisions, it is clear as per Rule 2 of Order XVII that on a date fixed, if any of the parties fails 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. Order IX Rule 8, which is relevant here in this case, is quoted herein below:- "Order IX.-Appearance of parties and consequence of non-appearance. 8. Procedure where defendant only appears.-Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder." 13. It is clear from the aforesaid provision, that if the Court has to proceed under the said provision because on the date fixed by the Court, the defendants appeared but plaintiffs did not, the suit should have been dismissed instead of proceeding further or to give any opportunity to the defendants to lead their evidence. 14. The Full Bench of this Court in the case of Rama Rao Marotirao & Others Vs. Shantibai widow of Madhorao & Others reported in 1977 MPLJ 364 , has dealt with the similar situation and has considered the aspect as to how the Court should proceed in a circumstance existing in the present case. The observation made by the Full Bench is as under: - "3. Order 17 relates to adjournments at the stage of hearing of suit. Rule 1 empowers the Court to adjourn the hearing of the suit if sufficient cause is shown to its satisfaction. Rules 2 and 3 both apply to an adjourned date of hearing of the suit. To this extent, there is no difference in the two Rules and this is, in fact, the starting point for attracting either of these Rules. The real trouble arises as a result of what transpires in the Court on the adjourned date of hearing. On a plain construction of Rule 2, it is clear that if "the parties or any of them fail to appear" on such a date. Rule 2 is attracted which empowers the Court "to dispose of the suit" in one of the modes specified. The modes available for disposal of the suit in such a situation are those provided in Order 9, Civil Procedure Code or by making "such other order as it thinks fit". It is settled that Order 9 provides for all situations arising out of the non-appearance of all or any of the parties to the suit so that the Court has the option to adopt any of the modes provided in Order 9 which is applicable to the situation created by the default in appearance of all or any of the parties. Moreover, the further expression "or to make such other order as it thinks fit" does empower the Court to dispose of the suit in a mode other than that provided in Order 9. Moreover, the further expression "or to make such other order as it thinks fit" does empower the Court to dispose of the suit in a mode other than that provided in Order 9. Such other order permitted by Rule 2 ought to be of the kind not expressly specified, e.g. an order of adjournment. It is not difficult to visualize a situation where the parties or any of them fail to appear in the Court on such a date and on the basis of the facts obvious to the Court, it has reason to assume that there was a fair possibility of the defaulting party being absent on account of reasons beyond its control which require that the party should not be penalised in any manner even by disposal of the suit in the mode available under Order 9. A situation such as that created by a natural calamity on that date provides an obvious illustration of this kind. This, the unambiguous and clear words used in Rule 2 show that Rule 2 applies to an adjourned date of hearing where the parties or any of them fail to appear. There is no other requirement for attracting Rule 2. The remaining part of Rule 2 deals only with the manner in which the Court is empowered to dispose of the suit in the situation resulting from the default in appearance of all or any of the parties to the suit and the latter part of the Rule contains no requirement to be fulfilled for attracting Rule 2." 15. Further, in Paragraph-23, the Court has answered the questions involved in the said case and finally Question 3(b] very categorically covers the situation involved in the present case. The Paragraph-23 is also quoted herein below:- "23. As a result of these conclusions, our answers together with the questions referred to us, are stated as under:- Questions Answers (1). If, when a suit is called on for hearing, a party's counsel appears and seeks adjournment but when adjournment is refused he retires saying that he has no instructions whether this will amount to "appearance" of the party whom the counsel represents? (a) If the counsel had sought adjournment because he was instructed by his client to ask for an adjournment only, and not to proceed with the trial if adjournment be refused? (a) If the counsel had sought adjournment because he was instructed by his client to ask for an adjournment only, and not to proceed with the trial if adjournment be refused? (b) If the counsel feels a necessity to seek adjournment so that he may prepare himself and, on his own, seeks adjournment. (2) If, when a case is called on for hearing, the counsel appears (without making any request for adjournment) merely to inform the Court that he has no instructions and, therefore, would not appear, will it still amount to appearance of a counsel for the purposes of Order 9, Rule 8, or Order 17, Rule 2, Civil Procedure Code? It will be no appearance of the party and Rule 2 of Order 17, Civil Procedure Code alone would be attracted. However, in such a case the defaulting party must show 'sufficient cause' for non-appearance as well as for not fully instructing the counsel. It will be no appearance of the party and Rule 2 of Order 17, Civil Procedure Code alone would be attracted. It will be no appearance of the party and Rule 2 of Order 17, Civil Procedure Code alone would be attracted. (3) Whether an application under Order 9, Civil Procedure Code will lie for setting aside the dismissal of a suit in the following circumstances: (a) The plaintiff had not been asked to do something and he did not appear when the case was called on for hearing. (b) The plaintiff was asked to do something which he did not do, nor did he appear when the case was called on for hearing. Yes. Order 17, Rule 2, Civil Procedure Code would alone be attracted. Yes. Order 17, Rule 2, Civil Procedure Code would alone be attracted. (4) Whether, in the following situations, the defendant can apply under Order 9, Rule 13, Civil Procedure Code for setting aside an ex parte decree: (a) When the defendant had not been asked to do something and he did not appear and the Court decided the suit on the basis of the existing material without or after taking any further evidence on record. (b) When the defendant had been asked to do something which he did not do, nor appeared when the case was called on for hearing and the Court decided the suit on the existing material without taking any further evidence for the plaintiff. (b) When the defendant had been asked to do something which he did not do, nor appeared when the case was called on for hearing and the Court decided the suit on the existing material without taking any further evidence for the plaintiff. (c) When he had been asked to do something which he did not do and did not appear when the case was called on for hearing and therefore, on the same day, the Court took on record ex parte evidence produced by the plaintiff. (d) When he had been asked to do something which he did not do, nor appeared when the case was called on for hearing and the trial Court adjourned the hearing for recording plaintiff's evidence ex parte and on the next date, after recording plaintiffs ex parte evidence, passed an ex parte decree against him. Yes. Order 17, Rule 2, Civil Procedure Code would alone be attracted. Yes. Order 17, Rule 2, Civil Procedure Code would alone be attracted. Yes. Order 17, Rule 2, Civil Procedure Code would alone be attracted. Yes. Order 17, Rule 2, Civil Procedure Code would alone be attracted. 16. In the above mentioned decision, the Full Bench has also taken note of the remaining part of Order XVII Rule 2 and explained that the Court may further adjourn the case, but considering the Question-3(b] and the answer of the Full Bench that the Court had no option but to proceed under Order XVII Rule 2, the suit of the plaintiffs/appellants should have been dismissed. 17. Learned counsel for respondents No.1 and 2 submits that in pursuance to the judgment and decree passed by the Court below, which is impugned in this appeal, the suit filed by the defendants was also dismissed holding that the same is hit by the principle of res judicata as finding has already been given by the Court in the present suit, therefore, no separate suit is required to be filed. 18. Learned counsel for respondents No.1 and 2 further submits that the suit filed by the defendants was dismissed in view of the finding given by the Court while deciding the suit of the plaintiffs/appellants on merits and therefore, the defendants will have to suffer the consequences as their suit had already been dismissed. 18. Learned counsel for respondents No.1 and 2 further submits that the suit filed by the defendants was dismissed in view of the finding given by the Court while deciding the suit of the plaintiffs/appellants on merits and therefore, the defendants will have to suffer the consequences as their suit had already been dismissed. He has also submitted that the plaintiffs deliberately did not make their appearance in the suit filed by them, but they were continuously appearing in the suit filed by the defendants and as such, the Court has rightly recorded the statements of the witnesses of the defendants and entertained their objection. 19. However, I am not convinced with the contentions raised by learned counsel for the respondents as already observed hereinabove, the Court below has committed material irregularity in recording the statement of the defendants and decided the case on merits whereas it should have been proceeded under Order XVII Rule 2 C.RC. Since the Court came to the conclusion for dismissing the suit, then it should have been done as per the requirement of Order IX Rule 8 of the C.RC. 20. In view of the above, this appeal is allowed to the extent that the finding recorded by the Court below while dismissing the suit as per the provisions of Order XVII Rule 2 C.RC. is set-aside and the suit of the plaintiffs/appellants should be treated to have been dismissed as per the provision of Order IX Rule 8 of the C.RC. Needless to observe that the plaintiffs would be free to proceed before the Court below in respect to the judgment and decree passed against them under Order IX Rule 8 C.P.C. 21. It is further observed that the defendants can also take recourse of the fact that the finding given by the Court below in the impugned judgment and decree, since set-aside, therefore, the same would not adversely affect their suit as has been dismissed by the Court applying the principle of res judicata. 22. Accordingly, the appeal is allowed to the above extent treating dismissal of the suit of the plaintiffs to be under the provisions of Order IX Rule 8 C.RC. and the finding given by the Court below in the impugned judgment and decree stands set-aside. Certified Copy as per rules. No order as to costs.