FAO (OS) 295 & CM 1305/2000
1. The question raised in this appeal is about applicability of Order 9 Rule 13 CPC to case which is decided on merits in the absence of a party after pleadings and evidence of parties are complete. Briefly, the facts are that the appellant had filed objections against an award in the proceedings pending before the learned Singh Judge for making the award a rule of court. The court framed issues on the basis of the objections filed against the award. After framing of the issues both the parties made a statement before the court that they did not want to lead any evidence with respect to the issues framed in the suit. However, they requested that the arbitration record be read in evidence at the item of hearing of the objections. Thereafter the suit was listed for final hearing and disposal on several dates before the learned Single Judge. On 25th March, 1996 none appeared for the objector/DDA. The matter was adjourned to 1st August, 1996. On 1st August, 1996, the learned Single Judge heard the counsel for the claimant for some time and adjourned the case to 19th August, 1996 to give another chance to the objector/DDA to appear. However, on 19th August, 1996 also none appeared for the objector/DDA. The matter was heard and decided on merits on that date. The award was made a rule of the court with some modification. Subsequently an application was filed by the objector/DDA under Order 9 Rule 13 CPC for setting aside the decree. The learned Single Judge by the impugned order dated 26th July, 2000 found that in such facts, an application under Order 9 Rule 13 CPC was not maintainable. Therefore, the application was rejected. The present appeal is directed against that order. The learned counsel for the appellant has argued that since there was no appearance on behalf of the objector/DDA, the court took up the matter on 19th August, 1996 in the absence of the objector and, therefore, it was a case of an exparte decree and the application under Order 9 Rule 13 CPC was maintainable. In this behalf he has relied on a judgment of this court in M/s. Bhagwan Dass bros. v. Ghulam Ahmed Dar and Ors., .
2. On the other hand the learned counsel for the respondent/decree holder has submitted that the case was posted for final hearing and the pleadings and evidence were complete. The court heard and decided the mailer on merits and, therefore, it could not said to be a case of an exparte decree. He has drawn our attention to Order 17 Rule 2 CPC particularly to the Explanation added to Rule 2 by the CPC Amendment Act of 1976. The Explanation is reproduced as under :-
“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. This Explanation makes it very clear that when evidence or a substantial portion of evidence of a party has already been recorded and such party fails to appear on the date fixed for hearing of the suit, the court can proceed to decide the case as if the party was present. This Explanation squarely applies in the facts of the present case. The evidence of the parties was complete in the sense that counsel for both the parties had made a statement before the court that they did not want to lead any evidence on the issues framed in the case and they wanted the record of arbitration to be read in evidence. Apart from this, it is to be noted that the case was decided on merits and not by way of exparte proceedings. In fact the court modified the award while making it a rule of court. The learned counsel for the respondent has drawn our attention to at least three decisions of this court besides decisions of other High Courts taking the view that in such circumstances Order 9 Rule 13 CPC does not apply because such a case is not a case of an exparte decree having been passed. The decisions of this court are reported as-
1. I.N.C.A Builders v. IAA.T., 1998 VAD(DELHI) 602
2. Hoechst Aktiengesells chaft v. M/s B.S. Chemical Industries, AIR 1979 NOC 107 (DELHI)
3. I A. Nos. 7310 & 7311/94 in Suit No. 455/87 entitled Pawan Kumar Goyal v. Shri Sadhu Ram Aggarwal and Ors. decided on 22nd February, 1996.
4. Coming to the case cited by the learned counsel for the appellant, i.e., M/s. Bhagwan Dass Bros. v. Ghulam Ahmed Dar and Ors. , it is to be noted that this is a case where objections were dismissed in default and were not dealt with on merits. Therefore, this case can have no application to the present facts.
5. There is no ground to interfere with the decision of the learned Single Judge. In our view the decision of the learned Single Judge is perfectly in accordance with law and is fully justified in the facts of the present case. The Explanation to Order 17 Rule 2 CPC leaves no scope for the argument that it was not a case of an ex parts decree and, therefore, application under Order 9 Rule 13 CPC was rightly held to be not maintainable. Dismissed.