PETITIONER:
PRAKASH CHANDER MANCHANDA AND ANR.
Vs.
RESPONDENT:
SMT. JANKI MANCHANDA
DATE OF JUDGMENT18/11/1986
BENCH:
OZA, G.L. (J)
BENCH:
OZA, G.L. (J)
REDDY, O. CHINNAPPA (J)
CITATION:
1987 AIR 42 1987 SCR (1) 288
1986 SCC (4) 699 JT 1986 889
1986 SCALE (2)844
ACT:
Civil procedure Code, 1908--Order 9 Rule 13 and Order 17
Rule 2 and 3--Plaintiff's evidence over--Defendant's evi-
dence to begin-Neither defence witnesses nor any one present
on behalf of defendant-Procedure to be followed by
Court--Ex-parte decree--Setting aside of.
HEADNOTE:
In a suit in which the appellant was defendant, after
the plaintiff's evidence was over, the defendant was to
begin his evidence on 24th January, 1985. As no witness was
present, at the request of defendant's counsel the case was
adjourned to 7th May, 1985. On that day, the case was trans-
ferred to another Court and the transferee Court ordered the
case to be put up on 21st August, 1985. It being a holiday,
the case was put up on 22nd August, 1985 when it was ad-
journed to 30th October, 1985. On that day, no one was
present for the defendant. The case was again taken up at 1
p.m. but the situation remained the same. Since none of the
witnesses for defendant was also present, evidence was
closed and case fixed for arguments for 1st November 1985.
On this date also nobody appeared for the defendant and the
case was adjourned to 8th November, 1985. On that day,
arguments of the plaintiff's counsel were heard and as none
was present for defendant, the case was fixed for judgment
on 11th November, 1985. On this date also nobody was present
for defendant and since judgment was not ready it was post-
poned to 21st November, 1985. On this date the judgment was
dictated, pronounced and decree was ordered to be prepared.
The defendant filed an application under Order 9 Rule 13
of the Code of Civil Procedure, 1908 for setting aside ex-
parte decree urging that he came to know about decree on
18th January, 1986 when the plaintiff came to take posses-
sion. The trial Court dismissed the application holding that
it was not maintainable because the case was disposed of not
in accordance with Order 17 Rule 2, but in accordance with
Order 17 Rule 3. An application for review was also dis-
missed by the Trial Court. The first appeal too was summari-
ly dismissed by the High Court.
Allowing the appeal,
289
Held: 1. The order passed by the High Court and also the
trial Court rejecting the application of the appellant under
Order 9 Rule 13 of the Civil Procedure Code 1908 are set
aside and the trial Court is directed to dispose of the
application in accordance with law. [294C]
2. In cases where a party is absent, only course is as
mentioned in Order 17(3)(b) to proceed under Rule 2. The
language of amended Rule 2 also 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 case where a party which is
absent has led some evidence or has examined substantial
part of their evidence. Therefore, if on a date fixed, one
of the parties remains 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
of the Code of Civil Procedure. After this amendment in
Order 17 Rules 2 and 3 in 1976 there remains no doubt, and
therefore, there is no possibility of any controversy.
[292H-293C]
3. In the present case, on 30th October 1985 when the
case was called nobody was present for the defendant, and
till that date the plaintiff's evidence had 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 upto 30th
October 1985 when the trial Court closed the case of defend-
ant there was no evidence on record on his behalf. There-
fore, 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.
[293D-E]
4. Order 17 Rule 3 as it stands was not applicable to
the facts of this case as admittedly on the date when the
evidence of the defendant was closed nobody appeared for the
defendant and, therefore, the Court when it proceeded to
dispose of the suit on merits had committed an error. Even
on the review application, the trial Court went on in the
controversy about Order 17 Rules 2 and 3 which existed
before the amendment and rejected the review application and
on appeal, the High Court also unfortunately dismissed the
appeal in limine by one word. [293F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2847 of
1986
290
From the Judgment and Order dated 1.8.1986 of the Delhi
High Court in F.A.O. No. 146 of 1986.
Soli J. Sorabjee, E.C. Agarwala and Lalit for the Appel-
lants.
T.S.K. Iyer, B.P. Maheshwari, V.N. Ganpule, S.K. Agniho-
tri and J. Singh for the Respondent.
The Judgment of the Court was delivered by
OZA, J. This appeal arises as a result of leave granted
by this Court against the summary dismissal of the first
appeal by the appellant before the High Court of Delhi. The
first appeal was filed against an order passed by Sub Judge
1st Class, Delhi rejecting the review petition filed by the
petitioner. The facts necessary for disposal of this case
are that in a suit filed against the present appellant in
the Court of Sub Judge 1st Class, Delhi when the matter was
fixed for evidence of the defendant as the plaintiff’s
evidence was over and defendant-present appellant’s evidence
was to begin when the case was taken up on 24th January,
1985. The order-sheet of the Court shows that no DW is
present and at the request of the counsel of the defendant
the case was adjourned to 7th May, 1985. It is stated that
on this date for some reason, the. case was transferred to
another board and in the transferee court, the order-sheet
showed presence of the counsel for parties and it further
shows that as the case was received on transfer it was
ordered to be put up on 21st August, 1985.
Learned counsel for the appellant disputed the mention
in these proceedings about the presence of the counsel of
the defendantappellant. But in any event as it is not impor-
tant for the decision of this appeal it is not necessary to
go into that question.
On 21st, August, 1985 it appears that there was a holi-
day and therefore the case was put up before the learned
Judge on 22nd August, 1985 and it was postponed to 30th
October, 1985 for the evidence of the defendant. On 30th
October, 1985 the order-sheet showed that the counsel for
plaintiff was present but no one was present for the defend-
ant. The Court therefore directed the case to be taken up at
1 P.M. At 1 P.M. again the situation remained the same as it
is clear from the order-sheet. It also shows that none of
the witnesses for defendant was also present and therefore
the Court passed the order: “the case was called but none
has appeared on behalf of the defendant and no DWs present.
The evidence of defendant closed.
291
Now to come up for arguments.” The next date fixed was 1st
November, 1985. On this date also nobody appeared for the
defendant and counsel for the plaintiff who was present
sought adjournment and the case was adjourned to 8th Novem-
ber, 1985. On 8th November, 1985 arguments of the plaintiffs
counsel were heard and as none was present for the defendant
the case was fixed for judgment on 11th November, 1985. On
this date also counsel for the plaintiff was present. Nobody
was present for the defendant and order-sheet shows that as
judgment was not ready it was postponed to 21st November,
1985. On 21st November, the judgment was dictated and pro-
nounced and the order-sheet also shows that the learned
Judge ordered decree to be prepared. It appears that after
this the defendant claimed that they came to know about the
decree on 18th January, 1986 as on that day the plaintiff
came to take possession and therefore filed an application
under Order 9 Rule 13 for setting aside the exparte decree
which was dismissed by the trial court holding that the case
was disposed of not in accordance with Order 17 Rule 2 but
in accordance with Order 17 Rule 3 and therefore the appli-
cation under Order 9 Rule 13 was not maintainable.
The appellant-defendant thereafter filed an application
for review but that application also was dismissed by the
trial court. Thereafter the first appeal Was filed before
the High Court of Delhi which was dismissed summarily by the
impugned order.
Learned counsel for parties submitted at length the
controversy that existed before the amendment of Code of
Civil Procedure in 1976 about the interpretation of Order 17
Rule 2 and Order 17 Rule 3. Apparently there were two views.
one was that Order 17 Rule 3 could be used for deciding the
matter on merits if the party is present but has failed to
do what was expected of that party to do and this rule could
not be used against a party who was present whereas the
other view was that even if a party is absent but has failed
to do what was expected of him then it was the discretion of
the Court either to proceed under Order 17 Rule 2 or under
Order 17 Rule 3.
In some decisions, the High Courts have gone to the
extent of saying that even if the trail court disposes of
the matter as if it was disposing it on merits under Order
17 Rule 3 still if the party against whom the decision was
pronounced was absent it could not be treated to be a dis-
posal in accordance with Order 17 Rule 3 and provisions of
Order 9 will be available to such a party either for resto-
ration or for setting aside an exparte decree. Learned
counsel placed before us a
292
number of decisions of various High Courts on this aspect of
the matter. But in our opinion in view of the amendment to
these two rules which have been made by 1976 amendment of
the Code of Civil Procedure it is not disputed that to the
facts of this case, Code of Civil Procedure as amended will
be applicable and therefore it is not necessary for us to go
into that question. Order 17 Rule 2 and Rule 3 as they now
stand reads:
“Order 17, Rule 2: Procedure if parties fail
to appear on day fixed:
Where, on any day to which the
beating 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 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.
Order 17 Rule 3: Court may proceed notwith-
standing either party fails to produce evi-
dence, 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 neces-
sary 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.”
It is clear that in cases where a party is absent only
course is as mentioned in Order 17(3)(b) to proceed under
Rule 2. It is therefore clear that in absence of the defend-
ant, the Court had no option but to
293
proceed under Rule 2, Similarly the language of Rule 2 as
now stands also clearly lays down that if any one of the
parties fail 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 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 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 con-
troversy. In this view of the matter it is clear that when
in the present case on 30th October 1985 when the case was
called nobody was present for the defendant. It is also
clear that till that date the plaintiffs 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 upto
the date i.e. 30th October, 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 there-
fore 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.
It is also clear that Order 17 Rule 3 as it stands was
not applicable to the facts of this case as admittedly on
the date when the evidence of defendant was closed nobody
appeared for the defendant. In this view of the matter it
could not’ be disputed that the Court when proceeded to
dispose of the suit on merits had committed an error. Unfor-
tunately even on the review application, the learned trial
Court went on in the controversy about Order 17 Rules 2 and
3 which existed before the amendment and rejected the review
application and on appeal, the High Court also unfortunately
dismissed the appeal in limine by one word.
The learned counsel for the respondent attempted to
contend that in this view of law as it now stands an appli-
cation under Order 9 Rule 13 will be maintainable. However
it was suggested that there was also an objection of limita-
tion about the acceptance of that applica-
294
tion. It is apparent that the learned trial Court has not
considered the application on merits but has only rejected
it as not maintainable and that order has been maintained.
This objection of the learned counsel for the respondent is
not necessary for us to go into at this stage as in view of
the law discussed above, the order rejecting the application
as not-maintainable, has to be set aside and it will be open
to the learned trial Court to consider the application under
Order 9 Rule 13 and dispose it of in accordance with that
law and while so doing, it may even examine the objections
that may be raised by the respondent.
The appeal is therefore allowed with costs. The order
passed by Hon’ble the High Court and also the trial court
rejecting the application of the appellant under Order 9
Rule 13 is set aside and it is directed that the learned
trial court will proceed to hear and dispose of the applica-
tion under Order 9 Rule 13 filed by the appellant in accord-
ance with law.
A.P.J. Appeal al-
lowed.
295