{"id":144145,"date":"2007-07-30T00:00:00","date_gmt":"2007-07-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nalini-janardhanan-vs-elamana-chinnammu-on-30-july-2007"},"modified":"2018-07-02T18:32:16","modified_gmt":"2018-07-02T13:02:16","slug":"nalini-janardhanan-vs-elamana-chinnammu-on-30-july-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nalini-janardhanan-vs-elamana-chinnammu-on-30-july-2007","title":{"rendered":"Nalini Janardhanan vs Elamana Chinnammu on 30 July, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Nalini Janardhanan vs Elamana Chinnammu on 30 July, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C) No. 5836 of 2005(T)\n\n\n1. NALINI JANARDHANAN, W\/O.JANARDHANAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. ELAMANA CHINNAMMU, W\/O. GOPALAN,\n                       ...       Respondent\n\n2. KARAMBATH SAKUNTHALA, W\/O.VELAYUDHAN,\n\n3. CALICUT CORPORATION,\n\n4. ELAMANA RAVEENDRAN, S\/O. GOPALAN,\n\n5. PALATHIL SUNDARAN, S\/O. JANU,\n\n6. PADANNAKKATTU SANTHA, W\/O. CHANDRAN,\n\n7. P.VASANTHA, D\/O. JANU,\n\n                For Petitioner  :SMT.SUMATHY DANDAPANI\n\n                For Respondent  :SRI.R.BINDU (SASTHAMANGALAM)\n\nThe Hon'ble MR. Justice PIUS C.KURIAKOSE\n\n Dated :30\/07\/2007\n\n O R D E R\n                          PIUS C. KURIAKOSE, J.\n               ..........................................................\n                          W.P.(C)No.5836 OF 2005\n               ...........................................................\n                    DATED THIS THE 30TH JULY, 2007\n\n                                J U D G M E N T\n<\/pre>\n
      The important question which arises in this Writ Petition is<\/p>\n
whether “decision” of the suit envisaged by Clause (a) of Rule 3 of<\/p>\n
Order XVII C.P.C. shall be a decision on the merits of the claims and<\/p>\n
contentions in the suit. As a corollary, the question whether a decision<\/p>\n
taken purportedly under Rule 3(a) which does not deal with the merits<\/p>\n
of the claims and contentions can be set aside under Order IX also<\/p>\n
arises.    The question whether appearance of a party through a<\/p>\n
counsel who is not prepared to conduct the case but only seeks an<\/p>\n
adjournment will amount to appearance of the party for the purpose of<\/p>\n
Rule 3(a) also arises.\n<\/p>\n
      2. Plaintiff is the petitioner. On her demise during the pendency<\/p>\n
of the Writ Petition, her legal heirs have been impleaded as additional<\/p>\n
petitioners. The suit was for prohibitory injunction against trespass into<\/p>\n
the suit properties. After trial, the suit was dismissed. But the court<\/p>\n
of first appeal decreed the suit. On Second Appeal to this Court, the<\/p>\n
suit was remanded with a direction to identify the suit properties with<\/p>\n
the help of an advocate commissioner and to dispose of the suit within<\/p>\n
six months. The commissioner filed report and plan.                       The petitioner<\/p>\n
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\n                                  -2-<\/span><\/p>\n
filed I.A.No.410 of 2004 for setting aside that report and plan. The<\/p>\n
I.A. was dismissed after examining the commissioner. The case stood<\/p>\n
posted for trial to 1.3.2004. The plaintiff was not present but only<\/p>\n
sought for an adjournment on the ground that the order on the<\/p>\n
application to set aside the commissioner’s report and plan is proposed<\/p>\n
to be challenged. The adjournment application was dismissed and the<\/p>\n
suit was also dismissed. The plaintiff filed I.A.No.1179 of 2004 under<\/p>\n
Order IX Rule 9 C.P.C. for restoration of the suit which was dismissed<\/p>\n
by the trial court by Ext.P2 order, holding that the non-appearance of<\/p>\n
the petitioner on 1.3.2004 was to avoid a decision in the suit and that<\/p>\n
sufficient cause was not made out for the non-appearance.        It was<\/p>\n
also noticed in Ext.P2 order that a time-limit had been set by this<\/p>\n
Court which had to be complied with.      Against Ext.P2 the petitioner<\/p>\n
preferred C.M.A.No.73 of 2004 before the District Court and the<\/p>\n
learned District Judge would paraphrase Order XVII Rule 3 C.P.C. and<\/p>\n
hold that all the conditions necessary for attracting Order XVII Rule 3<\/p>\n
(a) stood satisfied in the case and would accordingly hold that the<\/p>\n
application for restoration under Order IX Rule 9 was not maintainable<\/p>\n
and that the remedy of the petitioner was to seek a review of the<\/p>\n
judgment dismissing the suit or to prefer a regular appeal as provided<\/p>\n
WP(C)N0.5836\/05
\n                                   -3-<\/span><\/p>\n
under the Code. Noticing that the judgment dismissing the suit does<\/p>\n
not decide the merits of the claim or the contentions, the learned<\/p>\n
District Judge would observe that such a dismissal of the suit is also<\/p>\n
`decision’ of the suit at least for the purposes of Rule 3(a) of Order<\/p>\n
XVII.    Despite the above finding, the learned Judge went on to<\/p>\n
consider the merits of the application and would find that sufficient<\/p>\n
cause had not been made out and further that genuine grievances of<\/p>\n
the petitioner, if any, against the order dismissing the commission<\/p>\n
application could be raised as grounds in the appeal to be filed by her<\/p>\n
against the decree dismissing the suit. To hold that the application<\/p>\n
under Order IX Rule 9 is not maintainable, the learned District Judge<\/p>\n
relied mainly on the judgment of this Court in Sankara Pillai v.<\/p>\n
Sankaran<\/a> (1987 (2) KLT 382) and that of the Full Bench of the<\/p>\n
Allahabad High Court in M.S.Khalsa v. Chiranji Lal (AIR 1976<\/p>\n
Allahabad 290). According to the learned District Judge, appearance<\/p>\n
through a counsel who files an unsuccessful application for<\/p>\n
adjournment should be deemed as appearance of the party for the<\/p>\n
purpose of the rule.      The judgments in Divakara Panicker v.<\/p>\n
Pathumma and others (1990 (1) KLJ 787), Sankara Pillai v.<\/p>\n
Balakrishnan Nair (1988 (1) KLT 339) and in Janakiramaiah<\/p>\n
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\n                                   -4-<\/span><\/p>\n
Chetty v. Partharasarathi (2003 (2) KLT 384) were all distinguished<\/p>\n
by the learned District Judge on facts.\n<\/p>\n
      3. I have heard the submissions of Sri.Jawahar Jose, Advocate<\/p>\n
on behalf of the petitioner and those of Sri.R.Bindu Sasthamangalam,<\/p>\n
Advocate on behalf of respondents 1 and 4. I have also heard the<\/p>\n
submissions of Sri.C.M.Suresh Babu, Standing Counsel on behalf of the<\/p>\n
3rd respondent-Calicut Corporation.\n<\/p>\n
      4. Mr.Jawahar Jose would flay Exts.P2 and P3 forcefully. He<\/p>\n
would argue that decision which is contemplated under Clause (a) of<\/p>\n
Rule 3 of Order XVII is a decision on merits. The disposal of the suit<\/p>\n
on 1.3.2004 was not a decision on merits but it was obviously a<\/p>\n
decision by default.     There was no appearance of the plaintiff on<\/p>\n
1.3.2004 and appearance by the counsel who was not prepared to do<\/p>\n
anything more than to file an application for adjournment which was<\/p>\n
turned down by the learned Munsiff will not constitute appearance of<\/p>\n
the plaintiff for the purpose of the rule.  The learned counsel further<\/p>\n
submitted that, in any view, sufficient cause had been made out by the<\/p>\n
plaintiff for her non-appearance on the crucial date and the courts<\/p>\n
below ought to have allowed the application so as to facilitate disposal<\/p>\n
of the cause on merits.    The learned counsel relied on the judgments<\/p>\n
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\n                                   -5-<\/span><\/p>\n
in   Sankara Pillai v. Balakrishnan Nair (1988 (1) KLT 339),<\/p>\n
Divakara Panicker v. Pathumma and others (1990 (1) KLJ 787),<\/p>\n
Pokku v. Ammini (1987 (2) KLT 308), G.P.Srivastava v.<\/p>\n
R.K.Raizada<\/a> [(2003) 3 SCC 54) and Janakiramaiah Chetty’s case<\/p>\n
(2003 (2) KLT 384) for the propositions advanced by him.<\/p>\n
      5. Sri.R.Bindu Sasthamangalam, learned counsel for the<\/p>\n
contesting respondents would support Ext.P3 judgment on the basis of<\/p>\n
the reasons stated therein and submit that there is no warrant at all<\/p>\n
for interfering with the same within the contours of this Court’s very<\/p>\n
narrow jurisdiction under Article 227 of the Constitution.<\/p>\n
      6. On going through the counter affidavit which was filed by the<\/p>\n
respondents to Ext.P1 application, it will be seen that the contention<\/p>\n
that Ext.P1 is not maintainable was raised only formally and a perusal<\/p>\n
of Ext.P2 order passed by the learned Munsiff will show that the above<\/p>\n
contention was not accepted and the learned Munsiff has found Ext.P1<\/p>\n
application under Order IX Rule 9 to be maintainable in law.      The<\/p>\n
enquiry in Ext.P2 is confined mainly to the question whether the<\/p>\n
plaintiff had made out sufficient cause for her non-appearance on the<\/p>\n
crucial day, i.e., 1.3.2004.   The judgment passed by the court on<\/p>\n
1.3.2004 reads as follows:-\n<\/p>\n
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                     “Suit for perpetual injunction.\n<\/p>\n
                      Plaintiff not present. Her husband was reported<\/p>\n
               to be present in the morning. He was not present when<\/p>\n
               his name was called out. No proof affidavit filed either.<\/p>\n
               D5 present. I.A.No.837\/04 filed today on the side of<\/p>\n
               the plaintiff seeking adjournment is dismissed vide<\/p>\n
               separate order. Plaintiff is not ready to tender evidence<\/p>\n
               despite repeated directions. She had not paid the batta<\/p>\n
               ordered to the commissioner either. Hence the suit is<\/p>\n
               dismissed with costs of supplemental D5 for non-<\/p>\n
               appearance of plaintiff.”\n<\/p>\n
                                          (underlining mine)<\/p>\n
In Ext.P2, the learned Munsiff finds that the plaintiff’s non-appearance<\/p>\n
was deliberate and accordingly holds that the cause shown–her<\/p>\n
intention to challenge the order passed on the application to set aside<\/p>\n
the commissioner’s report–did not constitute sufficient cause for the<\/p>\n
purpose of Order IX Rule 9. In other words, it is somewhat clear from<\/p>\n
Ext.P2   that the learned Munsiff has construed Ext.P2 as an order<\/p>\n
under Clause (b) of Rule 3 of Order XVII.\n<\/p>\n
      7. I shall now extract Rule 3 of Order XVII C.P.C.:-<\/p>\n
                     “3. Court may proceed notwithstanding<\/p>\n
                either party fails to produce evidence, etc.–<\/p><\/blockquote>\n
                Where any party to a suit to whom time has been<\/p>\n
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\n                                     -7-<\/span><\/p>\n
               granted fails to produce his evidence, or to cause the<\/p>\n
               attendance of his witnesses, or to perform any other<\/p>\n
               act necessary to the further progress of the suit, for<\/p>\n
               which time has been allowed, the Court may,<\/p>\n
               notwithstanding such default,–\n<\/p>\n
                      (a) if the parties are present, proceed to decide<\/p>\n
               the suit forthwith; or<\/p>\n
                      b) if the parties are, or any of them is, absent<\/p>\n
                proceed under Rule 2.”\n<\/p>\n
On going through Ext.P3, it is seen that the learned District Judge has<\/p>\n
correctly paraphrased Order XVII Rule 3 and found that in order that<\/p>\n
clause (a) of Rule 3 of Order XVII be attracted, the following conditions<\/p>\n
should be satisfied:-\n<\/p>\n
     1. Time must have been granted to the party concerned to<\/p>\n
produce his evidence or cause the attendance of his witnesses or<\/p>\n
perform any other act necessary for the further progress of the suit.<\/p>\n
     2. The party failed in doing any of the acts enumerated above.<\/p>\n
     3. The parties must have been present on the day.<\/p>\n
     4. The suit should have been decided forthwith.<\/p>\n
The District Judge noticed that the suit stood originally posted for trial<\/p>\n
to 26.2.2004, i.e., for the plaintiff to adduce evidence, and on that day<\/p>\n
the case was adjourned to 1.3.2004, and found that time had been<\/p>\n
WP(C)N0.5836\/05
\n                                    -8-<\/span><\/p>\n
granted to the plaintiff at her instance for adducing evidence.<\/p>\n
Accordingly, it was found that the first condition stood satisfied in this<\/p>\n
case. Noticing that the husband of the plaintiff who was present at the<\/p>\n
time of roll-call was found absent when his name was called out for<\/p>\n
commencement of recording of his evidence, the court found that the<\/p>\n
second condition also stood satisfied, since it was clear that the<\/p>\n
plaintiff was not prepared to tender evidence on 1.3.2004.       I do not<\/p>\n
find any infirmity about the findings of the learned District Judge<\/p>\n
regarding the first two conditions which are pre-requisites for justifying<\/p>\n
a judgment under Order XVII Rule 3(a) of the code.<\/p>\n
      8. The third condition, as already noticed, is that both the parties<\/p>\n
should have been present on the crucial day and the fourth condition is<\/p>\n
that the suit should have been decided forthwith. According to me, the<\/p>\n
learned District Judge has erred in holding that conditions 3 and 4 also<\/p>\n
stood satisfied in this case and that the judgment passed on 1.3.2004<\/p>\n
dismissing the suit was a judgment under Clause (a) of Rule 3 of Order<\/p>\n
XVII. According to the learned District Judge, it is not mandatory that<\/p>\n
the decision which is expected to be taken forthwith under Clause (a)<\/p>\n
of Rule 3 of Order XVII shall be a decision on merits and dismissal of<\/p>\n
the suit for default is also a decision of the suit, at least for the<\/p>\n
WP(C)N0.5836\/05
\n                                   -9-<\/span><\/p>\n
purposes of Rule 3(a).\n<\/p>\n
      9. In Janakiramaiah Chetty’s case [2003 (2) KLT 384 (SC)],<\/p>\n
the comparative scope of Rules 2 and 3 of Order XVII C.P.C. and the<\/p>\n
distinction between the two rules were considered by the Supreme<\/p>\n
Court. Arijit Pasayat, J. who authored the judgment points out that<\/p>\n
Rules 2 and 3 operate in different and distinct sets of circumstances.<\/p>\n
Rule 2 applies only when an adjournment has been granted generally<\/p>\n
and not for any specific purpose.      His Lordship held that Rule 3<\/p>\n
operates when adjournment has been specifically given for any one of<\/p>\n
the purposes mentioned in that rule. The basic distinction between the<\/p>\n
two rules, according to the learned Judge, is that in the former, any<\/p>\n
party has failed to appear at the hearing while in the latter, the party<\/p>\n
though present has committed any one or more of the defaults<\/p>\n
enumerated in the rule.       The Explanation to Rule 2 extracted<\/p>\n
hereunder was noticed by the learned Judge:-\n<\/p>\n
                     “Explanation.–Where      the   evidence    or    a<\/p>\n
               substantial portion of the evidence of any party has<\/p>\n
               already been recorded and such party fails to appear<\/p>\n
               on any day to which the hearing of the suit is<\/p>\n
               adjourned, the Court may, in its discretion, proceed<\/p>\n
               with the case as if such party were present.”\n<\/p>\n
The combined effect of the Explanation to Rule 2 and Rule 3 of Order<\/p>\n
WP(C)N0.5836\/05
\n                                   -10-<\/span><\/p>\n
XVII is that the power conferred on the court is permissive and not<\/p>\n
mandatory.    The Explanation is in the nature of a deeming provision,<\/p>\n
when under given circumstances, even an absentee party can be<\/p>\n
deemed to be present.        Noticing the crucial expressions in the<\/p>\n
Explanation “where the evidence or a substantial portion of the<\/p>\n
evidence of any party”, the learned Judge observes:-<\/p>\n
                     “There is a positive purpose in this legislative<\/p>\n
               expression. It obviously means that the evidence on<\/p>\n
               record is sufficient to substantiate the absentee party’s<\/p>\n
               stand and for disposal of the suit. The absentee party<\/p>\n
               is deemed to be present for this obvious purpose. The<\/p>\n
               court while acting under the Explanation may proceed<\/p>\n
               with the case if that prima facie is the position.     The<\/p>\n
               court has to be satisfied on the facts of each case about<\/p>\n
               this requisite aspect.   It would be also imperative for<\/p>\n
               the court to record its satisfaction in that perspective.<\/p>\n
               It cannot be said that the requirement of substantial<\/p>\n
               portion of the evidence or the evidence having been led<\/p>\n
               for applying the Explanation is without any purpose.<\/p>\n
               If the evidence on record is sufficient for disposal of the<\/p>\n
               suit, there is no need for adjourning the suit or<\/p>\n
               deferring the decision.”\n<\/p><\/blockquote>\n
The learned Judge goes on to analyse the judgment which was<\/p>\n
impugned in that case and finds that the judgment has imprints of an<\/p>\n
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\n                                  -11-<\/span><\/p>\n
ex parte adjudication and not of a decision on merits since    there is<\/p>\n
not even an indication as to what evidence was evaluated or whether<\/p>\n
the merits of the claims and contentions were tested. The above view<\/p>\n
of the Supreme Court, though they are specifically expressed with<\/p>\n
reference to a judgment under the Explanation to Rule 2 of Order XVII,<\/p>\n
in my opinion, should apply in the case of disposals under Order XVII<\/p>\n
Rule 3(a) also.    In fact, the learned Judge has also observed that<\/p>\n
unless the judgment in question discusses the merits of the case,<\/p>\n
preferring of a regular appeal will be really inconsequential since no<\/p>\n
definite grounds of appeal can be pressed into service except making<\/p>\n
generalised challenges.    I also feel that it cannot be the legislative<\/p>\n
intent to encourage preferring of regular appeals in situations where<\/p>\n
the appellants are unable to raise definite grounds challenging the<\/p>\n
merits of the decision under appeal.\n<\/p>\n
      10.   U.L.Bhat and K.G.Balakrishnan, JJ. in Sankara Pillai v.<\/p>\n
Balakrishnan Nair (1988 (1) KLT 339) have also analysed the<\/p>\n
relative scope of Rules 2 and 3 of Order XVII C.P.C. Their Lordships<\/p>\n
held that where Rule 2 applies, ordinarily the disposal shall be under<\/p>\n
Order IX and disposal on the merits of the matter is possible only by<\/p>\n
virtue of the Explanation to Rule 2. As regards Rule 3, their Lordships<\/p>\n
WP(C)N0.5836\/05
\n                                    -12-<\/span><\/p>\n
say that Rule 3 can be invoked only when both parties are present and<\/p>\n
even if the disposal purports to be on merits, unless the conditions<\/p>\n
necessary for disposal under Order XVII Rule 3 (a) are satisfied, the<\/p>\n
provisions of Order IX C.P.C. will apply. In my opinion, this judgment<\/p>\n
also sufficiently indicates that a decision under Rule 3(a) of Order XVII,<\/p>\n
as in the case of a decision under the Explanation to Rule 2 of Order<\/p>\n
XVII, shall be a decision on merits.\n<\/p>\n
       11. S.Padmanabhan, J. in the decision in Divakara Panicker v.<\/p>\n
Pathumma and others (supra) has clearly indicated that decisions<\/p>\n
which are contemplated under the Explanation to Rule 2 of Order XVII<\/p>\n
and under Clause (a) of Rule 3 are decisions on the merits of the<\/p>\n
claims and contentions. His Lordship holds that the power conferred<\/p>\n
on courts under Clause (a) of Rule 3 of Order XVII to decide the suit<\/p>\n
on the merits for the default of a party (default need not be of<\/p>\n
appearance but in the matter of performance of the acts enumerated<\/p>\n
under Rule 3) is a drastic power which seriously restricts the remedy of<\/p>\n
the unsuccessful party for redress. It has to be used only sparingly in<\/p>\n
exceptional cases.     In order to decide the suit on merits, the mere<\/p>\n
existence of the conditions enumerated under Rule 3 alone will not be<\/p>\n
sufficient. There must be some materials for a decision on the merits<\/p>\n
WP(C)N0.5836\/05
\n                                   -13-<\/span><\/p>\n
even though the materials may not be technically interpreted as<\/p>\n
evidence. Sometimes, the decision in such cases could be on the basis<\/p>\n
of pleadings, documents and burden of proof. The learned Judge also<\/p>\n
observed that it is appreciable for the court to indicate by the<\/p>\n
judgment that the decision is for default or on merits. The learned<\/p>\n
Judge would observe:-\n<\/p>\n
                       “The only alternative of the court in cases<\/p>\n
                covered by Rule 3 or the Explanation to Rule 2 is not to<\/p>\n
                decide on the merits alone. If such an interpretation<\/p>\n
                is given, it will amount to an unjustified preference to<\/p>\n
                one who purposely absents than to one who presents<\/p>\n
                but is unable to proceed with the case.”\n<\/p><\/blockquote>\n
In my opinion, a decision purportedly made under Rule 3(a) unless the<\/p>\n
same is on merits will have to be construed as a decision under Rule 3<\/p>\n
(b) itself. In fact, there is considerable volume of judicial authority in<\/p>\n
support of the view.\n<\/p>\n
      12. There is sufficient indication in the judgment of the Supreme<\/p>\n
Court in Prakash Chander v. Janki Manchanda (AIR<\/a> 1987 SC 42)<\/p>\n
that the decision which is envisaged under Order XVII Rule 3(a) is a<\/p>\n
decision on merits, though the learned District Judge observed that the<\/p>\n
decision cannot be said to be a direct one on the point. The judgment<\/p>\n
of Sadasivan, J. in Abdulla Haji v. Mammunhi Barikat (1969 KLT<\/p>\n
WP(C)N0.5836\/05
\n                                   -14-<\/span><\/p>\n
433) is a direct authority for the proposition that disposal envisaged<\/p>\n
under Clause (a) of Rule 3 is a disposal on merits. His Lordship notices<\/p>\n
that two phases are contemplated under Order XVII Rule 3. The first<\/p>\n
is default on the part of the plaintiff to perform the acts necessary for<\/p>\n
the further progress of the suit. The second phase is that the court<\/p>\n
shall proceed with the suit notwithstanding the default.    According to<\/p>\n
the learned Judge, even when it is noticed that there is default on the<\/p>\n
part of the party to do what he was expected to do, then, the court<\/p>\n
shall proceed with the suit and decide the suit on the basis of the<\/p>\n
available materials rather than dismiss the suit by a one-word<\/p>\n
judgment.      In fact, the learned Judge followed the views of the<\/p>\n
Jammu and Kashmir High Court in Sonaullah v. Sultan Jan (AIR<\/p>\n
1952 Jammu & Kashmir 21) and held that the words “proceed to<\/p>\n
decide the suit forthwith” notwithstanding default suggest that the<\/p>\n
case must be one where in spite of the default of a party, it must have<\/p>\n
been possible for the court to come to a decision of the suit–a decision<\/p>\n
on the merits of the case, on the materials available before the court.<\/p>\n
      13. A Division Bench consisting of T.S.Krishnamoorthy Iyer and<\/p>\n
P.Unnikrishna Kurup, JJ. in     Pokker Haji v. Muhammed Barami<\/a><\/p>\n
(1971 KLT 438) has observed that in order that Rule 3 of Order XVII<\/p>\n
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\n                                   -15-<\/span><\/p>\n
applies, the disposal of the suit shall be on the basis of the evidence<\/p>\n
already on record and not on the basis of any evidence which is<\/p>\n
adduced after the default to perform any acts under Order XVII Rule 3<\/p>\n
occurred.    This decision, in my view, clearly implies that disposals<\/p>\n
under Clause (a) of Rule 3 of Order XVII shall be disposals on merits.<\/p>\n
A Full Bench of the Bombay High Court in Basalingappa v.<\/p>\n
Shidramappa (AIR 1943 Bombay 321) considered the relative scope<\/p>\n
of Rules 2 and 3 of Order XVII. Their Lordships held that the mere<\/p>\n
fact of a party making any default of what he was directed to do would<\/p>\n
not lead to a dismissal of the plaintiff’s suit, if the plaintiff was the<\/p>\n
party in default, or the decreeing of the claim against the defendant, if<\/p>\n
the defendant was the person who made the default. According to<\/p>\n
their Lordships, the words “notwithstanding such default” in Rule 3<\/p>\n
clearly imply that the court is to proceed with the disposal of the suit<\/p>\n
in spite of the default, upon such materials as are before it. Thus this<\/p>\n
decision clearly takes the view that decisions under Clause (a) of Rule<\/p>\n
3 shall be decisions on the merits of the claim.       The judgment of<\/p>\n
P.Govinda Menon J. in Kunjannam v. A.Issac (1961 KLT 653) was in<\/p>\n
a case where the suit after undergoing several adjournments stood<\/p>\n
posted for production of succession certificate by the plaintiff. On the<\/p>\n
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\n                                    -16-<\/span><\/p>\n
relevant date, the plaintiff did not produce the succession certificate<\/p>\n
but only applied for adjournment. The adjournment application was<\/p>\n
dismissed and the suit was also dismissed for default. The learned<\/p>\n
Munsiff, without specifically referring to Order XVII Rule 3(a) held that<\/p>\n
the restoration application was not maintainable. Taking the view that<\/p>\n
even when a suit is dismissed on the reason of non-performance of an<\/p>\n
act required to be done under Rule 3(a) of Order XVII, then also the<\/p>\n
dismissal shall be on the reason that the evidence in the case falls<\/p>\n
short of upholding the claim and not on the reason of default of<\/p>\n
appearance or non-performance alone, the learned Judge ruled that<\/p>\n
the restoration application was maintainable.<\/p>\n
      14. The judgments of the Rajasthan High Court in Gopikishan<\/p>\n
v. Ramu [AIR 1964 Rajasthan 147(FB)] and the Orissa High Court in<\/p>\n
Hindustan Steel Ltd. v. Prakash Chand [AIR 1970 Orissa 149 (DB)]<\/p>\n
also indicate that those courts are of the view that decision under<\/p>\n
Clause (a) of Rule 3 of Order XVII shall be a decision on the merits and<\/p>\n
that even if it is a dismissal of the suit, the dismissal shall be on the<\/p>\n
reason that there is lack of evidence to uphold the claim and not on<\/p>\n
the reason that the plaintiff is absent or has not performed the acts<\/p>\n
which he was expected to perform under Rule 3. In A.K.P.Haridas v.<\/p>\n
WP(C)N0.5836\/05
\n                                  -17-<\/span><\/p>\n
V.A.Madhavi Amma (AIR 1988 Kerala 304), while holding that an<\/p>\n
application under Order IX Rule 13 is maintainable for setting aside a<\/p>\n
decree passed under Order VIII Rule 10, S.Padmanabhan, J. has<\/p>\n
indicated that decrees which are contemplated under Rule 3(a) of<\/p>\n
Order XVII are decrees on merits and not decrees which do not advert<\/p>\n
to the pleadings or evidence available on record.<\/p>\n
      15. The Madras High Court in Pazhaniandi v. Naku (AIR 1927<\/p>\n
Madras 109) has also ruled that the expression “notwithstanding such<\/p>\n
default” implies that the court is to proceed, in spite of default, with<\/p>\n
the disposal of the suit on merits.    The Full Bench of the Allahabad<\/p>\n
High Court in Munna Lal v. Jai Prakash (AIR 1970 Allahabad 257)<\/p>\n
also takes the view that a decision under Order XVII Rule 3 is expected<\/p>\n
to be a decision on merits.    The judgment of G.Kumara Pillai, J. in<\/p>\n
Varghese v. Kesavan (1960 KLT 648) also indicates that decisions<\/p>\n
under Order XVII Rule 3 are to be decisions on merits.<\/p>\n
      16. It was the judgment of T.Kochu Thommen, J. in Sankara<\/p>\n
Pillai v. Sankaran<\/a> (1987 (2) KLT 382) which is relied on by the<\/p>\n
learned District Judge. That of course was a case where the disposal<\/p>\n
was not on merits and the plaintiff’s counsel continued to be physically<\/p>\n
present in court even after the rejection of the adjournment<\/p>\n
WP(C)N0.5836\/05
\n                                  -18-<\/span><\/p>\n
application. However, the learned Judge held that since the conditions<\/p>\n
under Order XVII Rule 3(a) stood satisfied, the trial court was justified<\/p>\n
in dismissing the suit and the aggrieved plaintiffs had a remedy by way<\/p>\n
of regular appeal. But in the light of Sankara Pillai v. Balakrishnan<\/p>\n
Nair (supra), subsequent judgment of Padmanabhan J. in Divakara<\/p>\n
Panicker’s case with which I am in respectful agreement, the<\/p>\n
judgment of the Supreme Court in Janakiramaiah Chetty’s case<\/p>\n
(supra) and the observations of the Division Benches of the various<\/p>\n
High Courts discussed above, the view of Kochu Thommen, J. in<\/p>\n
Sankara Pillai v. Sankaran<\/a> will have to be found to be not correct. I<\/p>\n
notice that many a relevant precedent including the judgment of<\/p>\n
Division Bench in Pokker Haji’s case and the judgment of Sadasivan,<\/p>\n
J. in Abdulla Haji’s case and the judgment of Govinda Menon, J. in<\/p>\n
Kunjannam’s case were not brought to the learned Judge’s notice<\/p>\n
even.\n<\/p>\n
       17. A careful reading of the majority judgment in M.S.Khalsa v.<\/p>\n
Chiranji Lal (AIR 1976 Allahabad 290), which is very much relied on<\/p>\n
by the learned District Judge for his view that appearance by an<\/p>\n
advocate who only files an application for adjournment will constitute<\/p>\n
appearance of the plaintiff for the purpose of Order XVII Rule 3 will<\/p>\n
WP(C)N0.5836\/05
\n                                   -19-<\/span><\/p>\n
show that that Bench also assumes that a decree passed under Order<\/p>\n
XVII Rule 3(a) is on the merits of the claims and contentions.<\/p>\n
      18. Thus, according to me, in as much as the judgment and<\/p>\n
decree passed by the learned Munsiff on 1.3.2004 do not deal with the<\/p>\n
merits of the claim, the fourth condition of “deciding” the suit has not<\/p>\n
been satisfied.\n<\/p>\n
      19. It is now necessary to consider whether the third condition<\/p>\n
that both the parties should have been present on the relevant date<\/p>\n
has been satisfied.     The learned District Judge has relied on the<\/p>\n
decision in Sankara Pillai’s case (1987 (2) KLT 382) and that of the<\/p>\n
Full Bench in M.S.Khalsa’s       case (supra) to take the view that<\/p>\n
appearance by counsel, even it is for the sole purpose of making an<\/p>\n
adjournment application will amount to presence of the party for the<\/p>\n
purpose of Order XVII Rule 3 C.P.C.      Though Divakara Panicker’s<\/p>\n
case (supra) and Sankara Pillai v. Balakrishnan Nair (1988 (1) KLT<\/p>\n
339) were cited before the learned District Judge for the contrary view,<\/p>\n
those decisions were distinguished by the learned District Judge. It<\/p>\n
was observed that in Divakara Panicker’s case the counsel reported<\/p>\n
no instructions.  But in the present case, no such report was made by<\/p>\n
the counsel. As for Sankara Pillai’s case, the learned Judge would<\/p>\n
WP(C)N0.5836\/05
\n                                    -20-<\/span><\/p>\n
observe that the question whether appearance by counsel will amount<\/p>\n
to deemed presence of the party for the purpose of Order XVII Rule 3<\/p>\n
(a) did not specifically arise in that case. The Full Bench decision of<\/p>\n
the Allahabad High Court in M.S.Khalsa’s case was a direct precedent,<\/p>\n
according to the learned District Judge.\n<\/p>\n
      20. It is true that in M.S.Khalsa’s case, the Full Bench of the<\/p>\n
Allahabad High Court has taken the view that appearance through an<\/p>\n
advocate who applies only for adjournment and is not prepared to<\/p>\n
conduct the case will be deemed presence of the party for the purpose<\/p>\n
of Order XVII Rule 3. But, it appears, that the difference in the rule<\/p>\n
position obtaining in our State and in Allahabad was not noticed by the<\/p>\n
learned District Judge. Order XVII Rule 2 by virtue of the amendment<\/p>\n
made by the Allahabad High Court reads as follows:-<\/p>\n
                      “Where, on any day to which     the hearing of the<\/p>\n
                suit is adjourned, the parties or any of them fail to<\/p>\n
                appear, the court may proceed to dispose of the suit in<\/p>\n
                one of the modes directed in that behalf by Order IX or<\/p>\n
                make such other order as it thinks fit.\n<\/p>\n
                      Where the evidence, or a substantial portion of<\/p>\n
               the evidence, of any party has already been recorded<\/p>\n
               and such party fails to appear on such day, the court<\/p>\n
               may in its discretion proceed with the case as if such<\/p>\n
               party were present, and may dispose of it on the<\/p>\n
WP(C)N0.5836\/05
\n                                   -21-<\/span><\/p>\n
                merits.\n<\/p>\n
                      Explanation.– No party shall be deemed to have<\/p>\n
                been failed to appear if he is either present or is<\/p>\n
                represented in court by agent or pleader, though<\/p>\n
                engaged    only   for  the   purpose     of  making     an<\/p>\n
                application.”\n<\/p>\n
Order XVII Rule 3 as it obtains in Allahabad clearly provides that the<\/p>\n
rule shall not apply in a case where Rule 2 does apply. The view of<\/p>\n
the Full Bench in M.S.Khalsa’s case (supra) that appearance through<\/p>\n
a counsel who has been instructed only for the purpose of making an<\/p>\n
adjournment application and is not prepared to conduct the case will<\/p>\n
be deemed presence of the party for the purpose of Order XVII Rule 3<\/p>\n
has been given in the light of the position emerging from Rules 2 and 3<\/p>\n
of Order XVII as obtained in that High Court.\n<\/p>\n
      21. S.Padmanabhan, J. in Divakara Panicker’s case (supra)<\/p>\n
after referring to a catena of decisions, has clearly ruled that the trend<\/p>\n
of authorities supplied by decisions of various High Courts is<\/p>\n
unanimous on the point that the presence or appearance of a party or<\/p>\n
counsel without preparedness to co-operate for the progress of the<\/p>\n
case cannot be treated as presence attracting Rule 3(a) which is a<\/p>\n
condition precedent to the decision on merits except in cases covered<\/p>\n
by the Explanation to Rule 2.\n<\/p>\n
WP(C)N0.5836\/05
\n                                   -22-<\/span><\/p>\n
      22. A Division Bench of the Calcutta High Court in Sohanlal v.<\/p>\n
Kedarnath (AIR 1969 Calcutta 516) has held that mere physical<\/p>\n
presence of the lawyer without preparedness to conduct the case will<\/p>\n
not constitute appearance for the purpose of Order XVII Rule 2 or Rule<\/p>\n
3.   Justice Sadasivan, J. in Abdulla Haji v. Mammunhi Barikat<\/p>\n
(1969 KLT 433), after referring to the judgment of the Madras High<\/p>\n
Court in Kaliappa Mudaliar v. Kumarasami Mudali (AIR 1926<\/p>\n
Madras 971), has endorsed the view that mere physical presence of<\/p>\n
party or pleader without readiness to participate in the proceedings will<\/p>\n
not amount to appearance for the purposes of Order XVII Rule 3. The<\/p>\n
Division Bench of the Orissa High Court in Hindustan Steel Ltd.<\/p>\n
(supra) has also expressed the view that what is necessary for the<\/p>\n
purpose of Order XVII Rule 3 is appearance by party or counsel with<\/p>\n
readiness to participate in the proceedings.\n<\/p>\n
      23. The Full Bench of the Madhya Pradesh High Court also has<\/p>\n
ruled in Rama Rao v. Shantibai (AIR 1977 Madhya Pradesh 222)<\/p>\n
that for deciding whether appearance of a counsel in the absence of a<\/p>\n
party will amount to appearance by the party for the purpose of Order<\/p>\n
XVII Rule 3, the essential question to be considered is whether the<\/p>\n
advocate had been instructed for conducting the case. By majority,<\/p>\n
WP(C)N0.5836\/05
\n                                  -23-<\/span><\/p>\n
the Full Bench answered the questions which were referred, in the<\/p>\n
following terms:-\n<\/p>\n
      (1) If, when a suit is called on for hearing, a party’s counsel<\/p>\n
appears and seeks adjournment but when adjournment is refused he<\/p>\n
retires saying that he has no instructions, it will be no appearance of<\/p>\n
the party and Rule 2 of Order XVII C.P.C. alone would be attracted.<\/p>\n
However, in such a case, the defaulting party must show sufficient<\/p>\n
cause for non-appearance as well as for not fully instructing the<\/p>\n
counsel.\n<\/p>\n
      (a) If the counsel had sought adjournment because he was<\/p>\n
instructed by his client to ask for an adjournment only, and not to<\/p>\n
proceed with the trial if adjournment be refused or (b) If the counsel<\/p>\n
feels a necessity to seek adjournment so that he may prepare himself<\/p>\n
and, on his own, seeks adjournment which is refused, it will be no<\/p>\n
appearance of the party and Rule 2 of Order XVII C.P.C. alone would<\/p>\n
be attracted.\n<\/p>\n
      2. If, when a case is called on for hearing, the counsel appears<\/p>\n
(without making any request for adjournment) merely to inform the<\/p>\n
Court that he has no instructions and, therefore, would not appear, it<\/p>\n
will be no appearance of the party and Rule 2 of Order XVII C.P.C.<\/p>\n
WP(C)N0.5836\/05
\n                                  -24-<\/span><\/p>\n
alone would be attracted.\n<\/p>\n
       24. The Division Bench of the Madras High Court in Ellammal<\/p>\n
v.Karuppan Chetti (AIR 1936 Madras 625) has also taken the view<\/p>\n
that appearance by a counsel who does not do anything other than to<\/p>\n
apply for adjournment will not constitute appearance of party for the<\/p>\n
purpose of Rule 3 of Order XVII.          The Madras High Court in<\/p>\n
Pazhaniandi’s case (supra) has gone to the extent of holding that<\/p>\n
even    mere physical presence of a party in court when his vakeel<\/p>\n
applied for adjournment and the adjournment was refused will not<\/p>\n
amount to appearance by the party for the purpose of Rule 3 of Order<\/p>\n
XVII.    The Supreme Court has observed in Sangram Singh v.<\/p>\n
Election Tribunal, Kotah (AIR<\/a> 1955 SC 425) that our laws on<\/p>\n
procedure are based on the principle that as far as possible the<\/p>\n
proceeding in a court of law should not be conducted to the detriment<\/p>\n
of a person in his absence. Physical presence without readiness to co-<\/p>\n
operate for anything connected with the progress of the case does not<\/p>\n
serve any useful purpose in deciding the case on merits and the policy<\/p>\n
of courts which are established for subserving the cause of justice is to<\/p>\n
facilitate the adjudication of causes on their merits rather than by<\/p>\n
default.   As observed by S.Padmanabhan, J. in Divakara Panicker’s<\/p>\n
WP(C)N0.5836\/05
\n                                   -25-<\/span><\/p>\n
case (supra), the power to decide the suit on merits under Order XVII<\/p>\n
Rule 3(a) seriously restricts the remedy of the losing party for redress.<\/p>\n
It could not have been the legislative intent to place an absentee<\/p>\n
party in a more advantageous position than a party who is present but<\/p>\n
is unwilling to co-operate on a given reason.\n<\/p>\n
      25. Considering the ratio emerging from the various decisions<\/p>\n
referred to hereinbefore and also on first principles, I hold that<\/p>\n
presence of an advocate who appears on the crucial day only for<\/p>\n
applying for an adjournment and is not prepared to conduct or to<\/p>\n
defend the case will not be appearance of the party for the purpose of<\/p>\n
Order XVII Rule 3. It may be true that the counsel in the present case<\/p>\n
did not report “no instructions”. But he did express his inability to go<\/p>\n
on with the trial and was not in fact prepared to go on with trial. That<\/p>\n
is sufficient to hold that the third condition under Order XVII Rule 3<\/p>\n
was also not satisfied in this case and Ext.P1 application under Order<\/p>\n
IX Rule 9 C.P.C. filed by the plaintiff was well maintainable in law. As<\/p>\n
already noticed, the learned Munsiff found the application to be<\/p>\n
maintainable and considered the same on its merits.<\/p>\n
      26. The question which remains to be considered is whether the<\/p>\n
courts below were justified in dismissing the application on the reason<\/p>\n
WP(C)N0.5836\/05
\n                                   -26-<\/span><\/p>\n
that sufficient cause had not been made out for the non-appearance of<\/p>\n
the plaintiff-petitioner on 1.3.2004. The explanation offered by her for<\/p>\n
not being present in court and for not instructing her counsel to<\/p>\n
continue with the case was that her earlier application for setting aside<\/p>\n
the commissioner’s report had been dismissed and that she wanted<\/p>\n
bona fide to challenge that order.      The learned District Judge also<\/p>\n
seems to feel that it is probable that the plaintiff has a legitimate<\/p>\n
grievance regarding the dismissal of her application for setting aside<\/p>\n
the commissioner’s report, but according to the learned Judge that<\/p>\n
grievance could be voiced through a regular appeal which the plaintiff<\/p>\n
may have to file in the event of the suit being decided against her. It<\/p>\n
was agreed to before me by both sides that the commissioner’s report<\/p>\n
and plan will be crucial for deciding the suit and that with the present<\/p>\n
report on record, the petitioners are likely to have difficulties in the<\/p>\n
suit which had been remanded by this Court for the purpose of taking<\/p>\n
out a commission.      The expression “sufficient cause”   is an elastic<\/p>\n
one for which no hard and fast guidelines can be given.<\/p>\n
S.Padmanabhan, J. in Pokku’s case (supra) has held that the nature<\/p>\n
of the claims and contentions and the effect which the decision of the<\/p>\n
case will have on the rights of parties cannot be ruled out as totally<\/p>\n
WP(C)N0.5836\/05
\n                                     -27-<\/span><\/p>\n
foreign to the area of consideration in petition under Order IX under all<\/p>\n
circumstances.       The learned Judge goes on in that judgment to say<\/p>\n
that even in cases where the court is not fully satisfied of the sufficient<\/p>\n
cause, an order allowing the application under Order IX can be made<\/p>\n
putting the parties to terms, if the court feels that such a course is<\/p>\n
necessary for doing justice to the parties. Of course, courts must be<\/p>\n
cautious to make all attempts to curb the law’s delays by discouraging<\/p>\n
mala fide attempts to protract litigations under the guise of sufficient<\/p>\n
cause. Judicial verdict on any application under Order IX Rule 9 shall<\/p>\n
take    a compromising       position as between the various interests<\/p>\n
involved. The Supreme Court in G.P.Srivastava’s case (supra) after<\/p>\n
observing that the petitioner is expected to give sufficient cause for his<\/p>\n
non-appearance on the crucial day and not for his defaults which<\/p>\n
occurred prior to that, has ruled that the expression “sufficient cause”<\/p>\n
shall be liberally construed and the approach should not be in a<\/p>\n
technical and narrow manner. The court further found that even if it is<\/p>\n
seen that there has been some negligence on the part of the<\/p>\n
petitioner, the question to be considered is whether the other side<\/p>\n
cannot be compensated by costs. Adopting too technical an approach<\/p>\n
is likely to result in prolonging the litigation indefinitely.<\/p>\n
WP(C)N0.5836\/05
\n                                   -28-<\/span><\/p>\n
      27. A reading of Ext.P3 will show that the circumstances that<\/p>\n
the plaintiff was not ready for trial on 26.2.2004 and that she did not<\/p>\n
pay the additional batta which was due to the advocate commissioner<\/p>\n
weighed with the learned District Judge as circumstances indicating<\/p>\n
that she wanted to protract the trial. As for the lack of readiness on<\/p>\n
the part of the plaintiff on 26.2.2004, the same is not to be made a<\/p>\n
consideration, going by the judgment of the Supreme Court in<\/p>\n
G.P.Srivastava v. R.K.Raizada<\/a> [(2000) 3 SCC 54]. No explanation<\/p>\n
was offered at the Bar as to why the plaintiff had not paid the batta<\/p>\n
ordered by the court to the advocate commissioner. However, since it<\/p>\n
is found that the application under Order IX Rule 9 C.P.C. is<\/p>\n
maintainable, non-payment of batta could not have been made a<\/p>\n
reason for dismissing the suit since the order directing payment of<\/p>\n
batta could have been got executed by the advocate commissioner as<\/p>\n
any other executable order.           Considering the totality of the<\/p>\n
circumstances which attend on this case and the interests of justice, I<\/p>\n
am of the view that the application should have been allowed by<\/p>\n
imposing reasonable terms.\n<\/p>\n
      28. In the result, I set aside Exts.P2 and P3 and allow Ext.P1 I.A.<\/p>\n
on the following terms:-\n<\/p>\n
WP(C)N0.5836\/05
\n                                  -29-<\/span><\/p>\n
                     1. The petitioners shall pay the additional batta<\/p>\n
               ordered by the court as payable to the advocate<\/p>\n
               commissioner, together with interest thereon at 12%<\/p>\n
               per annum from the date fixed by the court for<\/p>\n
               payment     till actual payment,    to  the   advocate<\/p>\n
               commissioner and file a memo before the court below.<\/p>\n
                      2. The petitioners shall pay as costs a sum of<\/p>\n
               Rs.9000\/- (Rs.Nine Thousand only) to the contesting<\/p>\n
               respondents either directly or through their counsel in<\/p>\n
               this Court, within one month of receiving copy of this<\/p>\n
               judgment and file a memo in the court below.\n<\/p>\n
                      3. The petitioners shall pay Rs.1000\/- (Rs.One<\/p>\n
               Thousand only) to the High Court Legal Services<\/p>\n
               Committee within the aforesaid period as further costs<\/p>\n
               and produce the receipt before the court below.<\/p>\n
If the above conditions are not complied with by the petitioners,<\/p>\n
Exts.P2 and P3 will stand confirmed.\n<\/p>\n
     The Writ Petition is allowed as above.\n<\/p>\n<\/p>\n
                                   (PIUS C.KURIAKOSE, JUDGE)
\ntgl<\/p>\n
WP(C)N0.5836\/05
\n                                -30-<\/span><\/p>\n
AIR 1943 Bombay 321 FB<\/p>\n
AIR 1972 Gauhati 25 – Order under Rule 3 is an order on merits.<\/p>\n
Merely because the court mentions Order XVII Rule 3, it cannot be said<\/p>\n
that the order was made under that rule and not under Order XVII<\/p>\n
WP(C)N0.5836\/05
\n                                   -31-<\/span><\/p>\n
Rule 2. In the case of default under Order XVII Rule 2 coupled with<\/p>\n
default under Order XVII Rule 3, disposal must be held to be under<\/p>\n
Order XVII Rule 2 and not under Rule 3.\n<\/p>\n
1963 KLT 256 – the construction of Order XVII Rule 2 and Rule 3<\/p>\n
should be such that where it is permissible to treat an order as falling<\/p>\n
within the ambit of Rule 2, it must be taken as being outside the ambit<\/p>\n
of Rule 3 for the obvious reason that Rule 3 is a more stringent<\/p>\n
provision requiring a strict construction.\n<\/p>\n
AIR 1977 M.P. 222 – Order under Rule 3 is an order on merits.<\/p>\n
AIR 1936 Madras 625<\/p>\n
AIR 1953 Rajasthan 1.\n<\/p>\n
AIR 1927 Madras 109<\/p>\n
1971 KLT 438<\/p>\n
1960 KLT 648<\/p>\n
1980 KLT 468<\/p>\n
1988 Kerala 304<\/p>\n
AIR 1970 Allahabad 257<\/p>\n
     The fact that the court cited Order XVII Rule 3(a) for the purpose<\/p>\n
of dismissing a suit is not conclusive on the question whether the<\/p>\n
WP(C)N0.5836\/05
\n                                  -32-<\/span><\/p>\n
decision was on merits or not. In every case, court will have to find<\/p>\n
out whether really the decision was on merits. In cases where the suit<\/p>\n
is dismissed for non-prosecution, the decree cannot be on merits as<\/p>\n
there will be no evidence at all for the appellate court to consider. In<\/p>\n
such cases, what the appellate court should do if it accepts the case of<\/p>\n
the applicant is to set aside the decree on the ground that the trial<\/p>\n
court was not justified in proceeding under Order XVII Rule 3 and<\/p>\n
remand the case. Thus, the parties will be in the same position as<\/p>\n
they would have been if the defaulting party would have been<\/p>\n
originally permitted to file restoration application and had not been<\/p>\n
compelled to file an appeal. Where even though the judge had stated<\/p>\n
that the suit was being disposed of under Order XVII Rule 3 and the<\/p>\n
real meaning and substance of the court action was only to dismiss<\/p>\n
the suit for non-prosecution, it was held that an application for<\/p>\n
restoration was maintainable.\n<\/p>\n
Order XVII Rule 2 – Allahabad amendments<\/p>\n
      Where the evidence or a substantial portion of the evidence of<\/p>\n
any party has been already received and such party fails to appear on<\/p>\n
WP(C)N0.5836\/05
\n                                     -33-<\/span><\/p>\n
such day, the court may in its discretion proceed with the case as if<\/p>\n
such party were present and may dispose of it on the merits.<\/p>\n
      Explanation.– No party shall be deemed to have been failed to<\/p>\n
appear if he is either present or is represented in court by agent or<\/p>\n
pleader, though engaged only for the purpose of making an<\/p>\n
application.\n<\/p>\n
Order XVII Rule 3 – Allahabad amendments<\/p>\n
      put a comma after the first word “where” and insert thereafter<\/p>\n
the words “in a case to which Rule 2 does not apply”.<\/p>\n
                       ………………..\n<\/p>\n
WP(C)N0.5836\/05
\n                   -34-<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Nalini Janardhanan vs Elamana Chinnammu on 30 July, 2007 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-144145","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nNalini Janardhanan vs Elamana Chinnammu on 30 July, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nalini-janardhanan-vs-elamana-chinnammu-on-30-july-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nalini Janardhanan vs Elamana Chinnammu on 30 July, 2007 - 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