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2024 DIGILAW 536 (AP)

Mortha Lakshmi v. Pithani Lakshman Kishore

2024-05-07

RAVI NATH TILHARI

body2024
JUDGMENT : RAVI NATH TILHARI, J. 1. Heard Sri M.V. Suresh, learned counsel, who appears for the petitioner through virtual mode. 2. Perused the material on record. 3. Petitioner is the plaintiff in the suit O.S. No. 225 of 2014 on the file of the IV Additional District Judge, Kakinada, East Godavari District, which was filed for recovery of money. The said suit was decreed on 18.06.2019. the respondent/defendant filed application under Order 9 Rule 13 of the Code of Civil Procedure (in short ‘CPC’) to set aside the decree on the ground that the same was ex-parte and on the date 18.06.2019 the defendant could not appear due to serious medical condition of his wife who was admitted in the hospital. The medical certificates were also filed to prove that contention. The petitioner filed the objections/counter denying the correctness and that those were not the tenable grounds. 4. Considering the submissions and finding that the cause shown was sufficient, supported by medical certificate/records, which indicated that the respondent’s wife was admitted in hospital, the Court did not find any reason to discard such medical record, the decree has been set aside and that the suit has been restored vide impugned Order dated 11.03.2024. 5. Learned counsel for the petitioner while challenging the impugned order submits that the decree dated 18.06.2019 could not be said to be an ex-parte decree. Consequently, the application under Order 9 Rule 13 CPC was not maintainable. 6. The learned trial Court dealt with the said objection, also raised before it, and observed that on 18.06.2019 the defendant was absent and on his behalf no evidence had been led in the suit. Placing reliance on Order 17 Rule 2 CPC, it observed that when there was no evidence led, the question of leading substantial portion of evidence also did not arise. Consequently, the Court on that date had to proceed under Order 9 CPC and not as if the defendant was present or taken to be present under Order 17 Rule 2 CPC. In other words, the learned trial Court held that the defendant was absent and his presence could not be presumed or deemed. The decree was ex-parte. The cause shown being sufficient, the ex-parte decree was thus set aside. 7. It has not been disputed that on 18.06.2019 when the decree was passed, the defendant was absent. 8. In other words, the learned trial Court held that the defendant was absent and his presence could not be presumed or deemed. The decree was ex-parte. The cause shown being sufficient, the ex-parte decree was thus set aside. 7. It has not been disputed that on 18.06.2019 when the decree was passed, the defendant was absent. 8. It has also not been disputed that the evidence of the defendant or substantial portion of it had already not been led. 9. Order 9 Rule 13 CPC reads as under: “13. Setting aside decree ex-parte against defendant - In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set aside and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for Proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Explanation: Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex-parte decree.” 10. Order 9 Rule 13 CPC provides for setting aside of a decree passed ex-parte against a defendant, if he satisfies the Court that there was sufficient cause by which he was prevented from appearing when the suit was called on for hearing. 11. Or 17 Rules 2 & 3 CPC read as under: “2. Order 9 Rule 13 CPC provides for setting aside of a decree passed ex-parte against a defendant, if he satisfies the Court that there was sufficient cause by which he was prevented from appearing when the suit was called on for hearing. 11. Or 17 Rules 2 & 3 CPC read as under: “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 - 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. (b) if the parties are, or any of them is, absent, proceed under Rule 2.” 12. Order 17 Rule 2 CPC provides that 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. In other words, as per Rule 2, if on the day of hearing of the suit, the defendant fails to appear, the Court may proceed under Order 9 and pass ex-parte decree. In other words, as per Rule 2, if on the day of hearing of the suit, the defendant fails to appear, the Court may proceed under Order 9 and pass ex-parte decree. The Explanation, however, provides that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on such adjourned hearing of the suit, the Court may in its discretion proceed with the case, if such party is present. In view of the Explanation, if the defendant is absent, but his evidence or substantial portion of his evidence had already been recorded, then the Court may in its discretion proceed with the case as if such defendant is present. 13. In Prakash Chander Manchanda v. Janki Manchanda, (1986) 4 SCC 699 on the scope of Order 17 Rules (2) and (3) CPC, the Hon’ble Apex Court has held that the language of Rule 2 as it now stands 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 2 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 his 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. 14. Relevant paragraph-16 of Prakash Chander Manchanda (supra) is as follows: “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. 14. Relevant paragraph-16 of Prakash Chander Manchanda (supra) is as follows: “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 Rules 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. 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.” 15. In the aforesaid case, in the absence of the defendant, and the Explanation to Order 17 Rule 2 CPC not being applicable, the suit was decreed and when the application under Order 9 Rule 13 CPC was rejected by the learned trial Court, the Hon’ble Apex Court held that in the circumstances, there was absence of the defendant and his evidence not having been led, Explanation was not attracted and the application under Order 9 Rule 13 CPC was maintainable as the decree was ex-parte. 16. 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 CPC. 17. Once the decree was passed in the absence of the defendant, and Order 17 Rule 2 CPC could not be attracted, it cannot be said that the decree was not ex-parte. 18. No other point has been argued. I do not find any illegality in the Order of the learned trial Court. 19. The decree being ex-parte and the cause shown by the defendant having been found to be sufficient, there is no illegality in the Order of setting aside the ex-parte decree and restoring the suit to original number. 20. No case for interference in exercise of jurisdiction under Article 227 of the Constitution of India has been made out. 21. The Civil Revision Petition is dismissed. No order as to costs. 22. Pending miscellaneous petitions, if any, shall stand closed in consequence.