JUDGMENT
R.M.S. Khandeparkar, J.
1. Heard the learned Advocates for the parties. Admit. By consent, heard forthwith.
2. The appellants challenge the order dated 23rd July, 2001, rejecting the application for condonation of delay in filing the application under Order DC, Rule 13 of Civil Procedure Code. The trial Court has rejected the said application solely on the ground that the application under Order IX, Rule 13 was not maintainable in view of the decision of the learned Single Judge of this Court in the matter Shaikh Chand Rahimbhai v. Annasaheb Trimbakrao Bobde reported in 2000(3) ALL MR 417. Apparently, the Court below has not at all considered whether the appellant has made out sufficient cause for condonation of delay or not.
3. Upon hearing the learned Advocates and on perusal of the record, following points arise for consideration :
1. Whether the application for condonation of delay, in the facts and circumstances of the case, could have been disposed of merely holding that the application under Order IX, Rule 13 of Civil Procedure Code
was not maintainable on the ground that the decree passed was not an ex-parte decree within the meaning of provisions of Order XVII, Rule 2 of Civil Procedure Code?
2. Whether the Court below could have disposed of application for condonation of delay without considering the issue as to whether the applicant has made out sufficient cause for condonation of delay or not?
4. Undisputedly, the facts are that the suit was disposed of in the absence of the appellants and without any written statement having been filed by the appellants even though the appellants were duly served by summons in the suit. Undisputedly, the appellants have disclosed various reasons for their failure to contest the proceedings and it is not necessary to consider the same in the appeal. Suffice it to say that the decree was passed in the absence of the appellants without any evidence being led by the appellants in the matter. There was neither pleadings on behalf of the appellants nor any material placed on record by the appellant in support of any defence of the appellant in relation to the case pleaded by the respondents-plaintiffs. In view of the decision of Apex Court in the matter of Prakash Chander Manchanda and Anr. v. Smt. Janki Manchanda , and followed by this Court in unreported decision of this court in the matter of D. Venkatesh Kumar v. B. M. Sahani, in Civil Revision Application No. 1370 of 2000 decided on 11th July, 2002, it is clear that once the Court proceeds to pass decree in the suit in the absence of the defendant and in the absence of any evidence having been led by the defendant in the matter, such a decree has to be construed having been passed in exercise of power under Order XVII, Rule 2 of Civil Procedure Code as an ex-parte decree which can be subjected to an application under Order DC, Rule 13 of Civil Procedure Code.
5. The attention of the learned single Judge in Shaikh Chand v. Annasaheb Trimbak Bobde’s case (supra) was not drawn to the decision of the Apex Court in and, therefore, the rule in the said Shaikh Chand’s case cannot be considered to be a good and binding law upon this Court. In it was held that,:
“It is clear that in case where a party is absent only course is mentioned in Order 17(3)(b) 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 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 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 upto 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, Civil Procedure Code. It is, therefore, clear that after this amendment in Order 17, Rules 2 and 3,
Civil Procedure Code there remains no doubt and therefore, there is no possibility of any controversy.”
6. Once it is clear that the Court below has rejected the application for condonation of delay solely on the ground that the application under Order IX, Rule 13 of Civil Procedure Code was not maintainable and once it is evident that such an order cannot be sustained since the decree in question was an ex-parte decree which can be subjected to the proceedings under Order IX, Rule 13 of Civil Procedure Code, the impugned order cannot be sustained. Apparently, the Court below has not even considered whether the appellant had made out sufficient cause for condonation of delay in filing the application or not, on that ground also the impugned order cannot be sustained and is liable to be set aside and the matter remanded to the Court below to consider the issue as to whether the appellants have made out sufficient cause for condonation of delay or not. It is made clear that this Court has not expressed any opinion on the aspect of the sufficiency of the cause for condonation of delay or as regards merits of the case in the application under Order IX, Rule 13 of Civil Procedure Code.
7. In the result, therefore, the appeal is allowed. The impugned order is hereby set aside and the matter is remitted to the Court below to decide application for condonation of delay by considering as to whether the appellants have made out sufficient cause for condonation of delay or not, and to proceed with the matter in accordance with the provisions of law. Considering that the suit relates to the year 1983, the Court below is expected to dispose of the matter as expeditiously as possible. Appeal is accordingly disposed of with no order as to costs.
Parties to act on a copy duly authenticated by Sheristedar of this Court.