IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 5836 of 2005(T)
1. NALINI JANARDHANAN, W/O.JANARDHANAN,
... Petitioner
Vs
1. ELAMANA CHINNAMMU, W/O. GOPALAN,
... Respondent
2. KARAMBATH SAKUNTHALA, W/O.VELAYUDHAN,
3. CALICUT CORPORATION,
4. ELAMANA RAVEENDRAN, S/O. GOPALAN,
5. PALATHIL SUNDARAN, S/O. JANU,
6. PADANNAKKATTU SANTHA, W/O. CHANDRAN,
7. P.VASANTHA, D/O. JANU,
For Petitioner :SMT.SUMATHY DANDAPANI
For Respondent :SRI.R.BINDU (SASTHAMANGALAM)
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :30/07/2007
O R D E R
PIUS C. KURIAKOSE, J.
..........................................................
W.P.(C)No.5836 OF 2005
...........................................................
DATED THIS THE 30TH JULY, 2007
J U D G M E N T
The important question which arises in this Writ Petition is
whether “decision” of the suit envisaged by Clause (a) of Rule 3 of
Order XVII C.P.C. shall be a decision on the merits of the claims and
contentions in the suit. As a corollary, the question whether a decision
taken purportedly under Rule 3(a) which does not deal with the merits
of the claims and contentions can be set aside under Order IX also
arises. The question whether appearance of a party through a
counsel who is not prepared to conduct the case but only seeks an
adjournment will amount to appearance of the party for the purpose of
Rule 3(a) also arises.
2. Plaintiff is the petitioner. On her demise during the pendency
of the Writ Petition, her legal heirs have been impleaded as additional
petitioners. The suit was for prohibitory injunction against trespass into
the suit properties. After trial, the suit was dismissed. But the court
of first appeal decreed the suit. On Second Appeal to this Court, the
suit was remanded with a direction to identify the suit properties with
the help of an advocate commissioner and to dispose of the suit within
six months. The commissioner filed report and plan. The petitioner
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filed I.A.No.410 of 2004 for setting aside that report and plan. The
I.A. was dismissed after examining the commissioner. The case stood
posted for trial to 1.3.2004. The plaintiff was not present but only
sought for an adjournment on the ground that the order on the
application to set aside the commissioner’s report and plan is proposed
to be challenged. The adjournment application was dismissed and the
suit was also dismissed. The plaintiff filed I.A.No.1179 of 2004 under
Order IX Rule 9 C.P.C. for restoration of the suit which was dismissed
by the trial court by Ext.P2 order, holding that the non-appearance of
the petitioner on 1.3.2004 was to avoid a decision in the suit and that
sufficient cause was not made out for the non-appearance. It was
also noticed in Ext.P2 order that a time-limit had been set by this
Court which had to be complied with. Against Ext.P2 the petitioner
preferred C.M.A.No.73 of 2004 before the District Court and the
learned District Judge would paraphrase Order XVII Rule 3 C.P.C. and
hold that all the conditions necessary for attracting Order XVII Rule 3
(a) stood satisfied in the case and would accordingly hold that the
application for restoration under Order IX Rule 9 was not maintainable
and that the remedy of the petitioner was to seek a review of the
judgment dismissing the suit or to prefer a regular appeal as provided
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under the Code. Noticing that the judgment dismissing the suit does
not decide the merits of the claim or the contentions, the learned
District Judge would observe that such a dismissal of the suit is also
`decision’ of the suit at least for the purposes of Rule 3(a) of Order
XVII. Despite the above finding, the learned Judge went on to
consider the merits of the application and would find that sufficient
cause had not been made out and further that genuine grievances of
the petitioner, if any, against the order dismissing the commission
application could be raised as grounds in the appeal to be filed by her
against the decree dismissing the suit. To hold that the application
under Order IX Rule 9 is not maintainable, the learned District Judge
relied mainly on the judgment of this Court in Sankara Pillai v.
Sankaran (1987 (2) KLT 382) and that of the Full Bench of the
Allahabad High Court in M.S.Khalsa v. Chiranji Lal (AIR 1976
Allahabad 290). According to the learned District Judge, appearance
through a counsel who files an unsuccessful application for
adjournment should be deemed as appearance of the party for the
purpose of the rule. The judgments in Divakara Panicker v.
Pathumma and others (1990 (1) KLJ 787), Sankara Pillai v.
Balakrishnan Nair (1988 (1) KLT 339) and in Janakiramaiah
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Chetty v. Partharasarathi (2003 (2) KLT 384) were all distinguished
by the learned District Judge on facts.
3. I have heard the submissions of Sri.Jawahar Jose, Advocate
on behalf of the petitioner and those of Sri.R.Bindu Sasthamangalam,
Advocate on behalf of respondents 1 and 4. I have also heard the
submissions of Sri.C.M.Suresh Babu, Standing Counsel on behalf of the
3rd respondent-Calicut Corporation.
4. Mr.Jawahar Jose would flay Exts.P2 and P3 forcefully. He
would argue that decision which is contemplated under Clause (a) of
Rule 3 of Order XVII is a decision on merits. The disposal of the suit
on 1.3.2004 was not a decision on merits but it was obviously a
decision by default. There was no appearance of the plaintiff on
1.3.2004 and appearance by the counsel who was not prepared to do
anything more than to file an application for adjournment which was
turned down by the learned Munsiff will not constitute appearance of
the plaintiff for the purpose of the rule. The learned counsel further
submitted that, in any view, sufficient cause had been made out by the
plaintiff for her non-appearance on the crucial date and the courts
below ought to have allowed the application so as to facilitate disposal
of the cause on merits. The learned counsel relied on the judgments
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in Sankara Pillai v. Balakrishnan Nair (1988 (1) KLT 339),
Divakara Panicker v. Pathumma and others (1990 (1) KLJ 787),
Pokku v. Ammini (1987 (2) KLT 308), G.P.Srivastava v.
R.K.Raizada [(2003) 3 SCC 54) and Janakiramaiah Chetty’s case
(2003 (2) KLT 384) for the propositions advanced by him.
5. Sri.R.Bindu Sasthamangalam, learned counsel for the
contesting respondents would support Ext.P3 judgment on the basis of
the reasons stated therein and submit that there is no warrant at all
for interfering with the same within the contours of this Court’s very
narrow jurisdiction under Article 227 of the Constitution.
6. On going through the counter affidavit which was filed by the
respondents to Ext.P1 application, it will be seen that the contention
that Ext.P1 is not maintainable was raised only formally and a perusal
of Ext.P2 order passed by the learned Munsiff will show that the above
contention was not accepted and the learned Munsiff has found Ext.P1
application under Order IX Rule 9 to be maintainable in law. The
enquiry in Ext.P2 is confined mainly to the question whether the
plaintiff had made out sufficient cause for her non-appearance on the
crucial day, i.e., 1.3.2004. The judgment passed by the court on
1.3.2004 reads as follows:-
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“Suit for perpetual injunction.
Plaintiff not present. Her husband was reported
to be present in the morning. He was not present when
his name was called out. No proof affidavit filed either.
D5 present. I.A.No.837/04 filed today on the side of
the plaintiff seeking adjournment is dismissed vide
separate order. Plaintiff is not ready to tender evidence
despite repeated directions. She had not paid the batta
ordered to the commissioner either. Hence the suit is
dismissed with costs of supplemental D5 for non-
appearance of plaintiff.”
(underlining mine)
In Ext.P2, the learned Munsiff finds that the plaintiff’s non-appearance
was deliberate and accordingly holds that the cause shown–her
intention to challenge the order passed on the application to set aside
the commissioner’s report–did not constitute sufficient cause for the
purpose of Order IX Rule 9. In other words, it is somewhat clear from
Ext.P2 that the learned Munsiff has construed Ext.P2 as an order
under Clause (b) of Rule 3 of Order XVII.
7. I shall now extract Rule 3 of Order XVII C.P.C.:-
“3. Court may proceed notwithstanding
either party fails to produce evidence, etc.–
Where any party to a suit to whom time has been
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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.”
On going through Ext.P3, it is seen that the learned District Judge has
correctly paraphrased Order XVII Rule 3 and found that in order that
clause (a) of Rule 3 of Order XVII be attracted, the following conditions
should be satisfied:-
1. Time must have been granted to the party concerned to
produce his evidence or cause the attendance of his witnesses or
perform any other act necessary for the further progress of the suit.
2. The party failed in doing any of the acts enumerated above.
3. The parties must have been present on the day.
4. The suit should have been decided forthwith.
The District Judge noticed that the suit stood originally posted for trial
to 26.2.2004, i.e., for the plaintiff to adduce evidence, and on that day
the case was adjourned to 1.3.2004, and found that time had been
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granted to the plaintiff at her instance for adducing evidence.
Accordingly, it was found that the first condition stood satisfied in this
case. Noticing that the husband of the plaintiff who was present at the
time of roll-call was found absent when his name was called out for
commencement of recording of his evidence, the court found that the
second condition also stood satisfied, since it was clear that the
plaintiff was not prepared to tender evidence on 1.3.2004. I do not
find any infirmity about the findings of the learned District Judge
regarding the first two conditions which are pre-requisites for justifying
a judgment under Order XVII Rule 3(a) of the code.
8. The third condition, as already noticed, is that both the parties
should have been present on the crucial day and the fourth condition is
that the suit should have been decided forthwith. According to me, the
learned District Judge has erred in holding that conditions 3 and 4 also
stood satisfied in this case and that the judgment passed on 1.3.2004
dismissing the suit was a judgment under Clause (a) of Rule 3 of Order
XVII. According to the learned District Judge, it is not mandatory that
the decision which is expected to be taken forthwith under Clause (a)
of Rule 3 of Order XVII shall be a decision on merits and dismissal of
the suit for default is also a decision of the suit, at least for the
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purposes of Rule 3(a).
9. In Janakiramaiah Chetty’s case [2003 (2) KLT 384 (SC)],
the comparative scope of Rules 2 and 3 of Order XVII C.P.C. and the
distinction between the two rules were considered by the Supreme
Court. Arijit Pasayat, J. who authored the judgment points out that
Rules 2 and 3 operate in different and distinct sets of circumstances.
Rule 2 applies only when an adjournment has been granted generally
and not for any specific purpose. His Lordship held that Rule 3
operates when adjournment has been specifically given for any one of
the purposes mentioned in that rule. The basic distinction between the
two rules, according to the learned Judge, is that in the former, any
party has failed to appear at the hearing while in the latter, the party
though present has committed any one or more of the defaults
enumerated in the rule. The Explanation to Rule 2 extracted
hereunder was noticed by the learned Judge:-
“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.”
The combined effect of the Explanation to Rule 2 and Rule 3 of Order
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XVII is that the power conferred on the court is permissive and not
mandatory. The Explanation is in the nature of a deeming provision,
when under given circumstances, even an absentee party can be
deemed to be present. Noticing the crucial expressions in the
Explanation “where the evidence or a substantial portion of the
evidence of any party”, the learned Judge observes:-
“There is a positive purpose in this legislative
expression. It obviously means that the evidence on
record is sufficient to substantiate the absentee party’s
stand and for disposal of the suit. The absentee party
is deemed to be present for this obvious purpose. The
court while acting under the Explanation may proceed
with the case if that prima facie is the position. The
court has to be satisfied on the facts of each case about
this requisite aspect. It would be also imperative for
the court to record its satisfaction in that perspective.
It cannot be said that the requirement of substantial
portion of the evidence or the evidence having been led
for applying the Explanation is without any purpose.
If the evidence on record is sufficient for disposal of the
suit, there is no need for adjourning the suit or
deferring the decision.”
The learned Judge goes on to analyse the judgment which was
impugned in that case and finds that the judgment has imprints of an
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ex parte adjudication and not of a decision on merits since there is
not even an indication as to what evidence was evaluated or whether
the merits of the claims and contentions were tested. The above view
of the Supreme Court, though they are specifically expressed with
reference to a judgment under the Explanation to Rule 2 of Order XVII,
in my opinion, should apply in the case of disposals under Order XVII
Rule 3(a) also. In fact, the learned Judge has also observed that
unless the judgment in question discusses the merits of the case,
preferring of a regular appeal will be really inconsequential since no
definite grounds of appeal can be pressed into service except making
generalised challenges. I also feel that it cannot be the legislative
intent to encourage preferring of regular appeals in situations where
the appellants are unable to raise definite grounds challenging the
merits of the decision under appeal.
10. U.L.Bhat and K.G.Balakrishnan, JJ. in Sankara Pillai v.
Balakrishnan Nair (1988 (1) KLT 339) have also analysed the
relative scope of Rules 2 and 3 of Order XVII C.P.C. Their Lordships
held that where Rule 2 applies, ordinarily the disposal shall be under
Order IX and disposal on the merits of the matter is possible only by
virtue of the Explanation to Rule 2. As regards Rule 3, their Lordships
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say that Rule 3 can be invoked only when both parties are present and
even if the disposal purports to be on merits, unless the conditions
necessary for disposal under Order XVII Rule 3 (a) are satisfied, the
provisions of Order IX C.P.C. will apply. In my opinion, this judgment
also sufficiently indicates that a decision under Rule 3(a) of Order XVII,
as in the case of a decision under the Explanation to Rule 2 of Order
XVII, shall be a decision on merits.
11. S.Padmanabhan, J. in the decision in Divakara Panicker v.
Pathumma and others (supra) has clearly indicated that decisions
which are contemplated under the Explanation to Rule 2 of Order XVII
and under Clause (a) of Rule 3 are decisions on the merits of the
claims and contentions. His Lordship holds that the power conferred
on courts under Clause (a) of Rule 3 of Order XVII to decide the suit
on the merits for the default of a party (default need not be of
appearance but in the matter of performance of the acts enumerated
under Rule 3) is a drastic power which seriously restricts the remedy of
the unsuccessful party for redress. It has to be used only sparingly in
exceptional cases. In order to decide the suit on merits, the mere
existence of the conditions enumerated under Rule 3 alone will not be
sufficient. There must be some materials for a decision on the merits
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even though the materials may not be technically interpreted as
evidence. Sometimes, the decision in such cases could be on the basis
of pleadings, documents and burden of proof. The learned Judge also
observed that it is appreciable for the court to indicate by the
judgment that the decision is for default or on merits. The learned
Judge would observe:-
“The only alternative of the court in cases
covered by Rule 3 or the Explanation to Rule 2 is not to
decide on the merits alone. If such an interpretation
is given, it will amount to an unjustified preference to
one who purposely absents than to one who presents
but is unable to proceed with the case.”
In my opinion, a decision purportedly made under Rule 3(a) unless the
same is on merits will have to be construed as a decision under Rule 3
(b) itself. In fact, there is considerable volume of judicial authority in
support of the view.
12. There is sufficient indication in the judgment of the Supreme
Court in Prakash Chander v. Janki Manchanda (AIR 1987 SC 42)
that the decision which is envisaged under Order XVII Rule 3(a) is a
decision on merits, though the learned District Judge observed that the
decision cannot be said to be a direct one on the point. The judgment
of Sadasivan, J. in Abdulla Haji v. Mammunhi Barikat (1969 KLT
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433) is a direct authority for the proposition that disposal envisaged
under Clause (a) of Rule 3 is a disposal on merits. His Lordship notices
that two phases are contemplated under Order XVII Rule 3. The first
is default on the part of the plaintiff to perform the acts necessary for
the further progress of the suit. The second phase is that the court
shall proceed with the suit notwithstanding the default. According to
the learned Judge, even when it is noticed that there is default on the
part of the party to do what he was expected to do, then, the court
shall proceed with the suit and decide the suit on the basis of the
available materials rather than dismiss the suit by a one-word
judgment. In fact, the learned Judge followed the views of the
Jammu and Kashmir High Court in Sonaullah v. Sultan Jan (AIR
1952 Jammu & Kashmir 21) and held that the words “proceed to
decide the suit forthwith” notwithstanding default suggest that the
case must be one where in spite of the default of a party, it must have
been possible for the court to come to a decision of the suit–a decision
on the merits of the case, on the materials available before the court.
13. A Division Bench consisting of T.S.Krishnamoorthy Iyer and
P.Unnikrishna Kurup, JJ. in Pokker Haji v. Muhammed Barami
(1971 KLT 438) has observed that in order that Rule 3 of Order XVII
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applies, the disposal of the suit shall be on the basis of the evidence
already on record and not on the basis of any evidence which is
adduced after the default to perform any acts under Order XVII Rule 3
occurred. This decision, in my view, clearly implies that disposals
under Clause (a) of Rule 3 of Order XVII shall be disposals on merits.
A Full Bench of the Bombay High Court in Basalingappa v.
Shidramappa (AIR 1943 Bombay 321) considered the relative scope
of Rules 2 and 3 of Order XVII. Their Lordships held that the mere
fact of a party making any default of what he was directed to do would
not lead to a dismissal of the plaintiff’s suit, if the plaintiff was the
party in default, or the decreeing of the claim against the defendant, if
the defendant was the person who made the default. According to
their Lordships, the words “notwithstanding such default” in Rule 3
clearly imply that the court is to proceed with the disposal of the suit
in spite of the default, upon such materials as are before it. Thus this
decision clearly takes the view that decisions under Clause (a) of Rule
3 shall be decisions on the merits of the claim. The judgment of
P.Govinda Menon J. in Kunjannam v. A.Issac (1961 KLT 653) was in
a case where the suit after undergoing several adjournments stood
posted for production of succession certificate by the plaintiff. On the
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relevant date, the plaintiff did not produce the succession certificate
but only applied for adjournment. The adjournment application was
dismissed and the suit was also dismissed for default. The learned
Munsiff, without specifically referring to Order XVII Rule 3(a) held that
the restoration application was not maintainable. Taking the view that
even when a suit is dismissed on the reason of non-performance of an
act required to be done under Rule 3(a) of Order XVII, then also the
dismissal shall be on the reason that the evidence in the case falls
short of upholding the claim and not on the reason of default of
appearance or non-performance alone, the learned Judge ruled that
the restoration application was maintainable.
14. The judgments of the Rajasthan High Court in Gopikishan
v. Ramu [AIR 1964 Rajasthan 147(FB)] and the Orissa High Court in
Hindustan Steel Ltd. v. Prakash Chand [AIR 1970 Orissa 149 (DB)]
also indicate that those courts are of the view that decision under
Clause (a) of Rule 3 of Order XVII shall be a decision on the merits and
that even if it is a dismissal of the suit, the dismissal shall be on the
reason that there is lack of evidence to uphold the claim and not on
the reason that the plaintiff is absent or has not performed the acts
which he was expected to perform under Rule 3. In A.K.P.Haridas v.
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V.A.Madhavi Amma (AIR 1988 Kerala 304), while holding that an
application under Order IX Rule 13 is maintainable for setting aside a
decree passed under Order VIII Rule 10, S.Padmanabhan, J. has
indicated that decrees which are contemplated under Rule 3(a) of
Order XVII are decrees on merits and not decrees which do not advert
to the pleadings or evidence available on record.
15. The Madras High Court in Pazhaniandi v. Naku (AIR 1927
Madras 109) has also ruled that the expression “notwithstanding such
default” implies that the court is to proceed, in spite of default, with
the disposal of the suit on merits. The Full Bench of the Allahabad
High Court in Munna Lal v. Jai Prakash (AIR 1970 Allahabad 257)
also takes the view that a decision under Order XVII Rule 3 is expected
to be a decision on merits. The judgment of G.Kumara Pillai, J. in
Varghese v. Kesavan (1960 KLT 648) also indicates that decisions
under Order XVII Rule 3 are to be decisions on merits.
16. It was the judgment of T.Kochu Thommen, J. in Sankara
Pillai v. Sankaran (1987 (2) KLT 382) which is relied on by the
learned District Judge. That of course was a case where the disposal
was not on merits and the plaintiff’s counsel continued to be physically
present in court even after the rejection of the adjournment
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application. However, the learned Judge held that since the conditions
under Order XVII Rule 3(a) stood satisfied, the trial court was justified
in dismissing the suit and the aggrieved plaintiffs had a remedy by way
of regular appeal. But in the light of Sankara Pillai v. Balakrishnan
Nair (supra), subsequent judgment of Padmanabhan J. in Divakara
Panicker’s case with which I am in respectful agreement, the
judgment of the Supreme Court in Janakiramaiah Chetty’s case
(supra) and the observations of the Division Benches of the various
High Courts discussed above, the view of Kochu Thommen, J. in
Sankara Pillai v. Sankaran will have to be found to be not correct. I
notice that many a relevant precedent including the judgment of
Division Bench in Pokker Haji’s case and the judgment of Sadasivan,
J. in Abdulla Haji’s case and the judgment of Govinda Menon, J. in
Kunjannam’s case were not brought to the learned Judge’s notice
even.
17. A careful reading of the majority judgment in M.S.Khalsa v.
Chiranji Lal (AIR 1976 Allahabad 290), which is very much relied on
by the learned District Judge for his view that appearance by an
advocate who only files an application for adjournment will constitute
appearance of the plaintiff for the purpose of Order XVII Rule 3 will
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show that that Bench also assumes that a decree passed under Order
XVII Rule 3(a) is on the merits of the claims and contentions.
18. Thus, according to me, in as much as the judgment and
decree passed by the learned Munsiff on 1.3.2004 do not deal with the
merits of the claim, the fourth condition of “deciding” the suit has not
been satisfied.
19. It is now necessary to consider whether the third condition
that both the parties should have been present on the relevant date
has been satisfied. The learned District Judge has relied on the
decision in Sankara Pillai’s case (1987 (2) KLT 382) and that of the
Full Bench in M.S.Khalsa’s case (supra) to take the view that
appearance by counsel, even it is for the sole purpose of making an
adjournment application will amount to presence of the party for the
purpose of Order XVII Rule 3 C.P.C. Though Divakara Panicker’s
case (supra) and Sankara Pillai v. Balakrishnan Nair (1988 (1) KLT
339) were cited before the learned District Judge for the contrary view,
those decisions were distinguished by the learned District Judge. It
was observed that in Divakara Panicker’s case the counsel reported
no instructions. But in the present case, no such report was made by
the counsel. As for Sankara Pillai’s case, the learned Judge would
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observe that the question whether appearance by counsel will amount
to deemed presence of the party for the purpose of Order XVII Rule 3
(a) did not specifically arise in that case. The Full Bench decision of
the Allahabad High Court in M.S.Khalsa’s case was a direct precedent,
according to the learned District Judge.
20. It is true that in M.S.Khalsa’s case, the Full Bench of the
Allahabad High Court has taken the view that appearance through an
advocate who applies only for adjournment and is not prepared to
conduct the case will be deemed presence of the party for the purpose
of Order XVII Rule 3. But, it appears, that the difference in the rule
position obtaining in our State and in Allahabad was not noticed by the
learned District Judge. Order XVII Rule 2 by virtue of the amendment
made by the Allahabad High Court reads as follows:-
“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.
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 day, the court
may in its discretion proceed with the case as if such
party were present, and may dispose of it on the
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merits.
Explanation.– No party shall be deemed to have
been failed to appear if he is either present or is
represented in court by agent or pleader, though
engaged only for the purpose of making an
application.”
Order XVII Rule 3 as it obtains in Allahabad clearly provides that the
rule shall not apply in a case where Rule 2 does apply. The view of
the Full Bench in M.S.Khalsa’s case (supra) that appearance through
a counsel who has been instructed only for the purpose of making an
adjournment application and is not prepared to conduct the case will
be deemed presence of the party for the purpose of Order XVII Rule 3
has been given in the light of the position emerging from Rules 2 and 3
of Order XVII as obtained in that High Court.
21. S.Padmanabhan, J. in Divakara Panicker’s case (supra)
after referring to a catena of decisions, has clearly ruled that the trend
of authorities supplied by decisions of various High Courts is
unanimous on the point that the presence or appearance of a party or
counsel without preparedness to co-operate for the progress of the
case cannot be treated as presence attracting Rule 3(a) which is a
condition precedent to the decision on merits except in cases covered
by the Explanation to Rule 2.
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22. A Division Bench of the Calcutta High Court in Sohanlal v.
Kedarnath (AIR 1969 Calcutta 516) has held that mere physical
presence of the lawyer without preparedness to conduct the case will
not constitute appearance for the purpose of Order XVII Rule 2 or Rule
3. Justice Sadasivan, J. in Abdulla Haji v. Mammunhi Barikat
(1969 KLT 433), after referring to the judgment of the Madras High
Court in Kaliappa Mudaliar v. Kumarasami Mudali (AIR 1926
Madras 971), has endorsed the view that mere physical presence of
party or pleader without readiness to participate in the proceedings will
not amount to appearance for the purposes of Order XVII Rule 3. The
Division Bench of the Orissa High Court in Hindustan Steel Ltd.
(supra) has also expressed the view that what is necessary for the
purpose of Order XVII Rule 3 is appearance by party or counsel with
readiness to participate in the proceedings.
23. The Full Bench of the Madhya Pradesh High Court also has
ruled in Rama Rao v. Shantibai (AIR 1977 Madhya Pradesh 222)
that for deciding whether appearance of a counsel in the absence of a
party will amount to appearance by the party for the purpose of Order
XVII Rule 3, the essential question to be considered is whether the
advocate had been instructed for conducting the case. By majority,
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the Full Bench answered the questions which were referred, in the
following terms:-
(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, it will be no appearance of
the party and Rule 2 of Order XVII C.P.C. 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.
(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 or (b) If the counsel
feels a necessity to seek adjournment so that he may prepare himself
and, on his own, seeks adjournment which is refused, it will be no
appearance of the party and Rule 2 of Order XVII C.P.C. alone would
be attracted.
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, it
will be no appearance of the party and Rule 2 of Order XVII C.P.C.
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alone would be attracted.
24. The Division Bench of the Madras High Court in Ellammal
v.Karuppan Chetti (AIR 1936 Madras 625) has also taken the view
that appearance by a counsel who does not do anything other than to
apply for adjournment will not constitute appearance of party for the
purpose of Rule 3 of Order XVII. The Madras High Court in
Pazhaniandi’s case (supra) has gone to the extent of holding that
even mere physical presence of a party in court when his vakeel
applied for adjournment and the adjournment was refused will not
amount to appearance by the party for the purpose of Rule 3 of Order
XVII. The Supreme Court has observed in Sangram Singh v.
Election Tribunal, Kotah (AIR 1955 SC 425) that our laws on
procedure are based on the principle that as far as possible the
proceeding in a court of law should not be conducted to the detriment
of a person in his absence. Physical presence without readiness to co-
operate for anything connected with the progress of the case does not
serve any useful purpose in deciding the case on merits and the policy
of courts which are established for subserving the cause of justice is to
facilitate the adjudication of causes on their merits rather than by
default. As observed by S.Padmanabhan, J. in Divakara Panicker’s
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case (supra), the power to decide the suit on merits under Order XVII
Rule 3(a) seriously restricts the remedy of the losing party for redress.
It could not have been the legislative intent to place an absentee
party in a more advantageous position than a party who is present but
is unwilling to co-operate on a given reason.
25. Considering the ratio emerging from the various decisions
referred to hereinbefore and also on first principles, I hold that
presence of an advocate who appears on the crucial day only for
applying for an adjournment and is not prepared to conduct or to
defend the case will not be appearance of the party for the purpose of
Order XVII Rule 3. It may be true that the counsel in the present case
did not report “no instructions”. But he did express his inability to go
on with the trial and was not in fact prepared to go on with trial. That
is sufficient to hold that the third condition under Order XVII Rule 3
was also not satisfied in this case and Ext.P1 application under Order
IX Rule 9 C.P.C. filed by the plaintiff was well maintainable in law. As
already noticed, the learned Munsiff found the application to be
maintainable and considered the same on its merits.
26. The question which remains to be considered is whether the
courts below were justified in dismissing the application on the reason
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that sufficient cause had not been made out for the non-appearance of
the plaintiff-petitioner on 1.3.2004. The explanation offered by her for
not being present in court and for not instructing her counsel to
continue with the case was that her earlier application for setting aside
the commissioner’s report had been dismissed and that she wanted
bona fide to challenge that order. The learned District Judge also
seems to feel that it is probable that the plaintiff has a legitimate
grievance regarding the dismissal of her application for setting aside
the commissioner’s report, but according to the learned Judge that
grievance could be voiced through a regular appeal which the plaintiff
may have to file in the event of the suit being decided against her. It
was agreed to before me by both sides that the commissioner’s report
and plan will be crucial for deciding the suit and that with the present
report on record, the petitioners are likely to have difficulties in the
suit which had been remanded by this Court for the purpose of taking
out a commission. The expression “sufficient cause” is an elastic
one for which no hard and fast guidelines can be given.
S.Padmanabhan, J. in Pokku’s case (supra) has held that the nature
of the claims and contentions and the effect which the decision of the
case will have on the rights of parties cannot be ruled out as totally
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foreign to the area of consideration in petition under Order IX under all
circumstances. The learned Judge goes on in that judgment to say
that even in cases where the court is not fully satisfied of the sufficient
cause, an order allowing the application under Order IX can be made
putting the parties to terms, if the court feels that such a course is
necessary for doing justice to the parties. Of course, courts must be
cautious to make all attempts to curb the law’s delays by discouraging
mala fide attempts to protract litigations under the guise of sufficient
cause. Judicial verdict on any application under Order IX Rule 9 shall
take a compromising position as between the various interests
involved. The Supreme Court in G.P.Srivastava’s case (supra) after
observing that the petitioner is expected to give sufficient cause for his
non-appearance on the crucial day and not for his defaults which
occurred prior to that, has ruled that the expression “sufficient cause”
shall be liberally construed and the approach should not be in a
technical and narrow manner. The court further found that even if it is
seen that there has been some negligence on the part of the
petitioner, the question to be considered is whether the other side
cannot be compensated by costs. Adopting too technical an approach
is likely to result in prolonging the litigation indefinitely.
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27. A reading of Ext.P3 will show that the circumstances that
the plaintiff was not ready for trial on 26.2.2004 and that she did not
pay the additional batta which was due to the advocate commissioner
weighed with the learned District Judge as circumstances indicating
that she wanted to protract the trial. As for the lack of readiness on
the part of the plaintiff on 26.2.2004, the same is not to be made a
consideration, going by the judgment of the Supreme Court in
G.P.Srivastava v. R.K.Raizada [(2000) 3 SCC 54]. No explanation
was offered at the Bar as to why the plaintiff had not paid the batta
ordered by the court to the advocate commissioner. However, since it
is found that the application under Order IX Rule 9 C.P.C. is
maintainable, non-payment of batta could not have been made a
reason for dismissing the suit since the order directing payment of
batta could have been got executed by the advocate commissioner as
any other executable order. Considering the totality of the
circumstances which attend on this case and the interests of justice, I
am of the view that the application should have been allowed by
imposing reasonable terms.
28. In the result, I set aside Exts.P2 and P3 and allow Ext.P1 I.A.
on the following terms:-
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1. The petitioners shall pay the additional batta
ordered by the court as payable to the advocate
commissioner, together with interest thereon at 12%
per annum from the date fixed by the court for
payment till actual payment, to the advocate
commissioner and file a memo before the court below.
2. The petitioners shall pay as costs a sum of
Rs.9000/- (Rs.Nine Thousand only) to the contesting
respondents either directly or through their counsel in
this Court, within one month of receiving copy of this
judgment and file a memo in the court below.
3. The petitioners shall pay Rs.1000/- (Rs.One
Thousand only) to the High Court Legal Services
Committee within the aforesaid period as further costs
and produce the receipt before the court below.
If the above conditions are not complied with by the petitioners,
Exts.P2 and P3 will stand confirmed.
The Writ Petition is allowed as above.
(PIUS C.KURIAKOSE, JUDGE)
tgl
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AIR 1943 Bombay 321 FB
AIR 1972 Gauhati 25 – Order under Rule 3 is an order on merits.
Merely because the court mentions Order XVII Rule 3, it cannot be said
that the order was made under that rule and not under Order XVII
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Rule 2. In the case of default under Order XVII Rule 2 coupled with
default under Order XVII Rule 3, disposal must be held to be under
Order XVII Rule 2 and not under Rule 3.
1963 KLT 256 – the construction of Order XVII Rule 2 and Rule 3
should be such that where it is permissible to treat an order as falling
within the ambit of Rule 2, it must be taken as being outside the ambit
of Rule 3 for the obvious reason that Rule 3 is a more stringent
provision requiring a strict construction.
AIR 1977 M.P. 222 – Order under Rule 3 is an order on merits.
AIR 1936 Madras 625
AIR 1953 Rajasthan 1.
AIR 1927 Madras 109
1971 KLT 438
1960 KLT 648
1980 KLT 468
1988 Kerala 304
AIR 1970 Allahabad 257
The fact that the court cited Order XVII Rule 3(a) for the purpose
of dismissing a suit is not conclusive on the question whether the
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decision was on merits or not. In every case, court will have to find
out whether really the decision was on merits. In cases where the suit
is dismissed for non-prosecution, the decree cannot be on merits as
there will be no evidence at all for the appellate court to consider. In
such cases, what the appellate court should do if it accepts the case of
the applicant is to set aside the decree on the ground that the trial
court was not justified in proceeding under Order XVII Rule 3 and
remand the case. Thus, the parties will be in the same position as
they would have been if the defaulting party would have been
originally permitted to file restoration application and had not been
compelled to file an appeal. Where even though the judge had stated
that the suit was being disposed of under Order XVII Rule 3 and the
real meaning and substance of the court action was only to dismiss
the suit for non-prosecution, it was held that an application for
restoration was maintainable.
Order XVII Rule 2 – Allahabad amendments
Where the evidence or a substantial portion of the evidence of
any party has been already received and such party fails to appear on
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such day, the court may in its discretion proceed with the case as if
such party were present and may dispose of it on the merits.
Explanation.– No party shall be deemed to have been failed to
appear if he is either present or is represented in court by agent or
pleader, though engaged only for the purpose of making an
application.
Order XVII Rule 3 – Allahabad amendments
put a comma after the first word “where” and insert thereafter
the words “in a case to which Rule 2 does not apply”.
………………..
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