BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:20/07/2009 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI C.M.A.(MD)No.276 of 2009 and C.M.A.(MD)No.277 of 2009 and M.P.(MD)Nos.1 and 2 of 2009 & Caveat P.(MD)No.172 of 2009 in C.M.A.(MD)No.276 of 2009 Karthikeyan ... Appellant in both the CMAs Vs. 1.R.Vasanth ... Respondent in CMA.No.276/2009
2.Kannan @ Rajendran
… Respondent in both the CMAs
Prayer in C.M.A.No.276 of 2009
Civil Miscellaneous Appeal filed under Order 43
Rule 1(d) and Section 104 of CPC., to set aside the fair and decretal order
passed in I.A.No.63 of 2008 in O.S.No.40 of 2005 dated 17.09.2008 on the file of
the Additional District Court (Fast Track Court), Thoothukudi.
Prayer in C.M.A.No.277 of 2009
Civil Miscellaneous Appeal filed under Order 43
Rule 1(d) and Section 104 of CPC., to set aside the fair and decretal order
passed in I.A.No.64 of 2008 in O.S.No.48 of 2004 dated 17.09.2008 on the file of
the Additional District Court (Fast Track Court), Thoothukudi.
!For Petitioner … Mr.M.Vallinayagam
^For Respondents … Mr.V.Perumal for R1 and 2
:COMMON JUDGMENT
These civil miscellaneous appeals are arising out of the common order
passed in I.A.No.63 of 2008 in O.S.No.40 of 2005 and I.A.No.64 of 2008 in
O.S.No.48 of 2004, dated 17.09.2008, on the file of the Additional District
Court (Fast Track Court), Thoothukudi.
2.The facts of the case are as under:
A suit in O.S.No.40 of 2005 has been filed by Kannan/1st respondent herein
against his father Kannan @ Rajendran and Karthikeyan/appellant herein before
the Additional District Court(Fast Track Court), Thoothukudi for declaration of
title and for consequential relief of injunction restraining the 1st defendant
not to alienate the suit property to the 2nd defendant.
3.For convenience sake the plaintiff in O.S.No.40 of 2005 is referred as
plaintiff and the plaintiff in O.S.No.45 of 2004 who is the 2nd defendant in
O.S.No.40 of 2005 is referred as defendant/appellant in these appeals. A suit
in O.S.No.48 of 2004 has been filed by Karthikeyan/appellant herein against
Kannan @ Rajendran/2nd respondent herein/1st defendant in O.S.No.40 of 2005
before the learned Additional District Judge (Fast Track Court), Thoothukudi,
for specific performance.
4.The case of the plaintiff in O.S.No.40 of 2005 is that the suit property
absolutely belongs to him. As his father/first defendant, who had no right in
the suit property, had entered into a sale agreement with the 2nd defendant, he
had filed and prayed for a declaration of title and injunction. This suit was
resisted by the 2nd defendant.
5.The 2nd defendant, who is the agreement holder, had filed O.S.No.48 of
2004, would state that he had entered into a sale agreement with the father of
the plaintiff and had paid substantial amount of the sale price and was ready
and willing to perform his part of the contract. However, this suit was filed
against the father of the plaintiff and the same was resisted by the sole
defendant.
6.Both the suits were taken up together and a joint trial was conducted.
The evidence was recorded in O.S.No.40 of 2005 and documents were also marked
including the sale agreement with further endorsements. The plaintiff was
examined as P.W.1 and one more witness was also examined as P.W.2. The 1st
defendant in O.S.No.40 of 2005, who is also the sole defendant in O.S.No.48 of
2004 was also examined as D.W.1 and was also cross-examined.
7.After closing the evidence of the plaintiff and also the examination of
the 1st defendant in O.S.No.40 of 2005 as D.W.1, the 2nd defendant in O.S.No.40
of 2005 and the plaintiff in O.S.No.48 of 2004 have filed an application in
I.A.No.6 of 2008, for appointment of an Advocate Commissioner and the same was
dismissed on 07.02.2008. The appellant has filed an application in I.A.No.14 of
2008 to re-open the case as the evidence on the side of the defendant was
closed and the said application was allowed on 11.02.2008 and the matter was
adjourned from time to time for recording the evidence of the defendant.
Finally, it was posted on 03.04.2008. Even, on that date also the appellant
herein was not present and hence, the evidence was closed and the matter was
posted for arguments on 08.04.2008.
8.However, the dismissal of the Commission application in I.A.No.6 of 2008
was challenged before this Court by filing a Civil Revision Petition and the
same was allowed and again the evidence was re-opened and the matter was posted
for defense evidence. Again, the defendant was called absent on 23.06.2008 and
the evidence was closed and the suit was posted for arguments on 25.06.2008. On
that date also, the defendant did not appear before the court and the counsel
stated “no instruction”. Hence, the court below heard the matter and pronounced
a common judgment on 02.07.2008, by allowing the suit in O.S.No.40 of 2005 and
dismissing the suit in O.S.No.48 of 2004.
9.The 2nd defendant, who is the agreement-holder had filed two petitions
challenging the judgment and decree in O.S.No.40 of 2005 and O.S.No.48 of 2004,
on the file of the Additional District Court(Fast Track Court), Thoothukudi,
under Order 9 Rule 13 of C.P.C. to set aside the ex-parte decree and to re-open
the case. The case of the appellant is that he could not appear before the
court below when the matter was posted for evidence and therefore, he has not
adduced any evidence and hence, the court below had passed an ex-parte decree.
10.These two petitions were resisted by the plaintiff/respondent. After
elaborate enquiry, the trial court has held that the court had proceeded under
Order 17 Rule 2 of C.P.C. as a substantial portion of evidence had already been
recorded and therefore, the decree passed on 02.07.2008 is a decree on merits
and not an ex-parte decree. Aggrieved by the above finding of the trial court,
the defendant in O.S.No.40 of 2005, who is the plaintiff in O.S.No.48 of 2005,
has preferred these Civil Miscellaneous Appeals on the ground that the decree
passed on 02.07.2008 is an ex-parte decree and not a decree on merits.
11.The only legal point to be considered in these appeals are whether the
judgment and decree dated 02.07.2008 is passed a decree on merits under Order 17
Rule 2 or an ex-parte decree?
12.The learned counsel for the appellant would submit that the court below
is wrong in holding that the substantial evidence on the part of the defendant
was adduced, whereas, the defendant was not even examined before the Court and
even though he had shown genuine and sufficient reasons for his non-appearance
on 25.06.2008 and the court had simply closed the evidence and therefore, it
could be treated only as ex-parte decree and for that the learned counsel for
the appellant relied upon the following judgments:-
AIR 2003 SC 3527 (B.Janakiramaiah Chetty Vs. A.K.Parthasarathi and others) and
2005(4) CTC 451 (T.Kalyanasundaram Vs. M.S.Arumuganayakar).
13.The learned counsel for the respondent would submit in spite of several
opportunities given to the defendant to adduce evidence, the defendant had
failed to appear before the court below and the court below has rightly closed
the evidence and heard the arguments and delivered the judgment. Therefore, the
learned counsel would submit that the court below has passed the judgment and
decree only on merits and it is not an ex-parte decree.
14.Before deciding this issue, it is pertinent to note that the
consequences of events. Earlier a suit in O.S.No.48 of 2004 has been filed by
the defendant, who is the appellant herein against the sole defendant for
specific performance of the sale agreement. A suit in O.S.No.40 of 2005 has
been filed for declaration of title and injunction by the son of the executant
of the sale agreement. However, both the suits were tried together and evidence
was adduced and witnesses were examined and documents were also marked. The
first defendant in O.S.No.40 of 2005, who is the sole defendant in O.S.No.48 of
2004 was also examined as D.W.1 and he was also cross-examined. It is also
pertinent to note that he was cross-examined by the agreement-holder and the
sale agreement with endorsements were also marked. The plaintiff’s evidence was
closed on 18.12.2007 and thereafter, the defendant filed an application for
appointment of an Advocate Commissioner, which was dismissed on 07.02.2008 and
the defendant’s side evidence was also closed and afterwards, an application to
re-open the case was filed, which was allowed on 11.02.2008. Finally, the
matter was adjourned for several times for adducing the defendant’s side
evidence and posted finally on 03.04.2008. As he has not come forward to adduce
evidence, the evidence was closed and the matter was posted for arguments on
08.04.2008.
15.Since the Commission application was allowed by this Court in revision,
the defendant filed an application to re-open the evidence, which was also
allowed on 23.06.2008, for adducing evidence and again it was also closed for
the non-appearance of the defendant and the matter was posted for arguments on
25.06.2008. On that date, the learned counsel for the defendant endorsed “no
instruction” and the matter was heard and judgment was delivered on 02.07.2008.
This shows that the court below had given ample opportunities to the defendant
to adduce his evidence. However, it is to be seen that whether the court below
had proceeded under Order 17 Rule 2 or passed an ex-parte decree?
Order 17 Rule 2 reads as follows:
“(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 of Order IX or make such order as it thinks fit.
Explanation: Where the evidence of 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.”
16.In a judgment reported in AIR 2003 SC 3527, the Apex Court has held as
follows:-
“8.In order to determine whether the remedy under Order IX is lost or not
what is necessary to be seen is whether in the first instance the Court had
resorted to the Explanation of Rule 2.
9.The Explanation permits the Court in its discretion to proceed with a
case where substantial portion of 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. As the provision itself shows, discretionary power given to
the Court to be exercised in a given circumstances. For application of the
provision, the Court has to satisfy itself that (a)substantial portion of the
evidence of any party has been already recorded: (b)such party has failed to
appear on any day and (c)the day is one to which the hearing of the suit is
adjourned. Rule 2 permits the Court to adopt any of the modes provided in Order
IX or to make such order as he thinks fit when on any day to which the hearing
of the suit is adjourned, the parties or any of them fail to appear. The
Explanation is in the nature of an exception to the general power given under
the rule, conferring discretion on the court to act under the specified
circumstance i.e.where evidence or a substantial portion of evidence of any
party has been already recorded and such party fails to appear on the date to
which hearing of the suit has been adjourned. If such is the factual situation,
the Court may in its discretion deem as if such party was present.”
17.In yet another judgment of the Division Bench of this Court reported in
2005(4) CTC 451, it has held as follows:
“6.The Honourable Supreme Court of India in the judgment referred to earlier
while interpreting Order 17 Rules 2 and 3 had laid down the Law as hereunder:
“In Rule 2, the expression used is “make such order as it deems fit”, as
an alternative to adopting one of the modes directed in that behalf by Order 9.
Under Order 17, Rule 3(b) only course open to the Court is to proceed under rule
2, when a party is absent. Explanation thereto gives a discretion to the Court
to proceed under Rule 3 even if a party is absent. But such a course can be
adopted only when the absentee party has already led evidence on a substantial
part thereof. If the position is not so, the Court has no option but to proceed
as provided in Rule 2. Rule 2 and 3 operate in different and distinct sets of
circumstances. Rule 2 applies when an adjournment has been generally granted
and not for any special purpose. On the other hand, Rule 3 operates where the
adjournment has been given for one of the purposes mentioned in the Rule. While
Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3
empowers the Court to decide the suit forthwith. The basic distinction between
the two Rules, however, 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 enumerated defaults. Combined effect of the Explanation to Rule
2 and Rule 3 is that a discretion has been conferred on the Court. The power
conferred is permissive and not mandatory. The Explanation is in the nature of
a deeming provision, when under given circumstances, the absentee party is
deemed to be present.
The crucial expression in the Explanation is “where the evidence or a
substantial portion of the evidence of a party”. 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. This clearly has imprints of an ex parte
adjudication and not of a decision on merits. There is not even any indication
as to what evidence was evaluated and/or whether the merits were tested.”
From the above, it is clear that Law laid down by the Supreme Court in the above
referred to judgment is binding on us.”
This is a case where P.W.1 to 5 have been examined in chief and the defendant
did not cross-examine the witnesses, the plaintiff’s side witness was closed and
the suit stood adjourned for defense. Even thereafter, the defendant did not
take part and the decree was passed.
18.In a decision in (Janakiramaiah Chetty Vs. Parthasarathi) reported in
2003(2)CTC 242, the Supreme Court has laid down the scope of Order 17 Rule 2 as
“The Trial Court in this case had no jurisdiction to pass a decree on merits and
it ought to have disposed of the suit only in terms of Order 17 Rule 2 without
the aid of the Explanation to the said sub rule. In the light of our decision,
namely, the decree dated 13.10.2003 would only be an ex parte decree and not a
decree on merits, we have no other go except to hold that the application under
Order 9 Rule 13 filed by the defendant is maintainable.”
19.In the light of the above referred rulings of the Supreme Court, it is
necessary to see whether the trial Court satisfied itself that:
a)a substantial portion of evidence of any party has already been adduced and
b)the said party failed to appear on any day to which the hearing of the suit is
adjourned
If the above points are answered affirmatively, then the Court may proceed with
the case as if such party was present.
Therefore, whenever the court proceeds under Order 17 Rule 2 of C.P.C.,the above
said conditions are to be looked into by the trial Court.
20.In the instant case, the suits are one for declaration of title and for
consequential relief of injunction and the other suit is for specific
performance of a contract and the appellant had adduced substantial portion of
evidence by cross-examining the plaintiff and the executant of the sale
agreement and he had failed to appear on the day to which the hearing of the
suit was adjourned and the court had proceeded with the case, as if such party
was present.
21.Therefore, in order to determine whether the judgment and decree was
passed under Order 17 Rule 2 as a decree on merit or an ex-parte decree, it is
essential to satisfy the above two conditions viz., whether a)a substantial
portion of evidence of any party has already been adduced and b)whether said
party failed to appear on any day to which the hearing of the suit is adjourned.
22.Whenever, the Court proceeds under Order 17 Rule 2 and 3 of C.P.C., the
trial court should satisfy itself on the above said two conditions. It is also
advisable that the court may record its reason for proceeding under Order 17
Rule 2 or 3 whichever is applicable to avoid misconception by the parties.
23.As per the records, it is clear that the case was posted on 23.06.2008,
for further evidence of the defendant and since he has not appeared and the
evidence was again closed and the case was posted on 25.06.2008 for arguments.
On that day also, the learned counsel for the defendant reported “no
instruction” and after hearing the arguments, the judgment was delivered on
02.07.2008. Therefore, it is a decree on merits and not a decree on ex-parte.
The court below had rightly dismissed the applications filed under Order 9 Rule
13, therefore, I have no reason to interfere.
24.In view of the above, the common judgment and decree, dated 02.07.2008
in I.A.No.63 of 2008 in O.S.No.40 of 2005 and I.A.No.64 of 2008 in O.S.No.48 of
2004 are confirmed. Hence, the Civil Miscellaneous Appeals fail and the same are
dismissed.
nbj
To
The Additional District Court
(Fast Track Court),
Thoothukudi.