- Bookmark
- Share
- CaseIQ
Rafiq Ahmad v. Mohammad Shafi
Concise Analytical Summary of the Provided Opinion
Factual and Procedural Background
Rafiq Ahmad and Iqbal Ahmad (plaintiffs-appellants) sued Mohammad Shafi and others in the Court of the Civil Judge, Aligarh. The matter was first heard on 18 May 1945, when the plaintiffs had summoned over 20 witnesses but managed to examine only two; the hearing was adjourned to 19 May 1945. On 19 May one more witness was examined and, for want of time, the hearing was adjourned to 21 May 1945. On 21 May the plaintiffs applied for time to move the District Judge for transfer of the suit; that application was granted and the plaintiffs were ordered to pay Rs. 50 as costs of adjournment by 26 May 1945 (the costs were not paid). The transfer application to the District Judge was rejected.
26 October 1945 was fixed for final disposal. The plaintiffs' application for a change of date was rejected. On 25 October the plaintiffs took out summonses for 15 witnesses, but the plaintiffs were absent when the suit was taken up on 26 October 1945; the hearing was adjourned to 29 October 1945. On 29 October the trial Court proceeded to decide the suit on merits, stating it acted under Order 17, Rule 3, Civil P.C., and dismissed the suit the same day.
The plaintiffs applied to have the dismissal set aside under Order 9, Rule 9, Civil P.C.; the trial Court held that such an application was not maintainable because the suit had been decided under Order 17, Rule 3. The present appeal challenges the order dismissing the plaintiffs' application under Order 9, Rule 9.
Legal Issues Presented
- Whether the trial Court properly proceeded to decide the suit on merits under Order 17, Rule 3, Civil P.C., given the procedural facts recorded on the dates of hearing.
- If Rule 3 did not apply, whether the dismissal should be treated as an order under Order 17, Rule 2 read with Order 9 (notably Order 9, Rule 8), and consequently whether an application under Order 9, Rule 9, Civil P.C., was maintainable.
- Whether appellate/revisional review may examine if a lower Court in fact acted under Order 17, Rule 3 (or whether it merely recorded that it was doing so) — i.e., whether the characterization by the trial Court controls or the actual circumstances govern applicability of the Rule.
Arguments of the Parties
Appellants' Arguments
- Rule 3 of Order 17 did not, in terms, apply because the plaintiffs had not been granted time to do anything under that rule; the adjournment on 19 May was for want of time, and the only time explicitly granted (on 21 May) was to apply for transfer to the District Judge.
- Only 3 witnesses out of more than 20 had been examined; this did not amount to "a substantial portion of the evidence", so the paragraph (added by the Court to Rule 2) that allows disposal on merits where a substantial portion of evidence has been recorded could not be invoked.
- Therefore, the trial Court must be deemed to have acted under Rule 2 of Order 17 read with Order 9, and an application under Order 9, Rule 9 was maintainable to set aside the dismissal.
Respondents' Arguments
- The suit was dismissed on merits under Order 17, Rule 3, and the decree could only be challenged by appeal; because there was no dismissal under Order 9, Rule 8, the plaintiffs' application under Order 9, Rule 9 was not maintainable.
- Relying on Nasir Khan v. Itwari, the appellate Court should examine what the Court actually did (i.e., it acted under Rule 3) and not what it should have done; this principle, it was contended, forecloses treating the order as one under Order 9.
- The respondents also relied on Madho Das v. Maharajah of Banaras, which was based on Nasir Khan's authority, and argued that Raja Singh's case was distinguishable on facts.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nasir Khan v. Itwari, A.I.R. (11) 1924 ALL. 144 | Principle that "The right of appeal does not depend on what a Court ought to have done but on what it actually did." (court should see what the lower Court has done). | The Court distinguished Nasir Khan: held its observations were not helpful on the present facts because Rules 2 and 3 of Order 17 differ from the Rule considered in Nasir Khan (Order 41, Rule 17), and different considerations arise where an application (Order 9) could be filed instead of an appeal. |
| Madho Das v. His Highness the Maharajah of Banaras, A.I.R. (12) 1925 ALL. 252 | Application of Order 17, Rule 3 where a party had taken time and then failed to appear; the Court applied Nasir Khan's principle in that factual context. | The Court found Madho Das distinguishable: in that case Rule 3 clearly applied; the present case's facts did not bring Rule 3 into play. |
| Raja Singh v. Manna Singh & Ors, A.I.R. (27) 1940 ALL. 217 | Considered whether an ex parte decree said to be under Rule 3 of Order 17 was in effect an ex parte decree under Order 9 and whether such a decree could be set aside under the provisions of Order 9. | The Court treated Raja Singh as more in point: it supports the proposition that the mere statement by a trial Court that it is proceeding under Order 17, Rule 3 does not conclusively make that Rule applicable; the Court must examine whether the facts satisfy Rule 3. Raja Singh was relied upon to show revisional scrutiny of the true legal basis is permissible. |
Court's Reasoning and Analysis
The Court undertook a sequential legal analysis centered on whether Order 17, Rule 3 genuinely applied and, if not, what statutory procedure governed the consequences of non-appearance on an adjourned date.
- The Court first examined the text and circumstances relevant to Rule 3 of Order 17 (quoted in the opinion). Rule 3 applies 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," allowing the Court to decide the suit forthwith notwithstanding such default. The Court found that, in the present case, the plaintiffs had not been granted time under Rule 3 to do the acts described (their only granted time related to making an application for transfer to the District Judge), and the adjournment on 19 May was for want of time rather than because time had been specifically granted under Rule 3.
- The Court then considered Order 17, Rule 2 (quoted and also noting the paragraph added by the Court) which permits the Court, on a day to which the hearing is adjourned when a party fails to appear, "to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit." The added paragraph authorizes disposal on merits where the evidence, or a substantial portion, of a party has been recorded and that party fails to appear. Applying these provisions, the Court deemed 26 October 1945 to be an adjourned hearing within Rule 2.
- The Court assessed whether a "substantial portion" of the plaintiffs' evidence had been recorded (a condition for disposing on merits under the paragraph added to Rule 2). It found only 3 out of about 20 witnesses had been examined and concluded that this could not be considered a substantial portion of the evidence.
- The opinion rejected the contention that the phrase "or make such other order as it thinks fit" in Rule 2 empowered the trial Court to decide the suit on merits in the present circumstances. The Court held that, as amended, Rule 2 permitted disposal on merits only in the circumstances specified in the added paragraph (i.e., where substantial evidence had been recorded).
- Because Rule 3 did not apply and the conditions for disposing on merits under Rule 2 were not met, the Court concluded that the trial Court lacked jurisdiction to decide the suit on merits under Order 17, Rule 3. Instead, the correct course under Rule 2 was to proceed in one of the modes directed by Order 9 (not to decide on merits given the facts).
- The Court examined the precedents relied upon by the parties. It distinguished Nasir Khan and Madho Das on their facts and reasoning, and found Raja Singh to be more directly apposite for the proposition that a trial Court's recital that it is acting under Rule 3 does not conclusively make Rule 3 applicable; the true question is whether the factual preconditions for Rule 3 exist.
- Concluding that the trial Court had no jurisdiction to proceed under Rule 3 and that the matter should have been treated under Rule 2 read with the relevant provisions of Order 9 (notably Rule 8), the Court held that the plaintiffs' application under Order 9, Rule 9 was maintainable.
Holding and Implications
Holding: The appellate Court allowed the appeal, held that the application under Order 9, Rule 9, Civil P.C., filed by the plaintiffs was maintainable, set aside the lower Court's order dated 7 September 1946 which had dismissed the plaintiffs' application under Order 9, Rule 9, and remanded the case to the trial Court for disposal of that application in accordance with law.
Implications and direct consequences:
- The plaintiffs are entitled to have their application under Order 9, Rule 9 (to set aside the dismissal) considered by the trial Court in accordance with law, because the trial Court should have treated the dismissal as an order falling within the modes contemplated by Order 17, Rule 2 read with Order 9 (including Order 9, Rule 8), rather than as a decision under Order 17, Rule 3.
- The appellate Court's decision does not purport to create or announce any novel general rule beyond applying and distinguishing existing authorities; the opinion emphasizes that the factual preconditions for invoking Rule 3 must be satisfied and that a mere statement by a trial Court that it proceeded under Rule 3 is not conclusive.
- The costs of the appeal were directed to abide the ultimate result of the application now remanded for disposal by the trial Court.
This summary is drawn exclusively from the provided opinion and does not include information beyond that text.
1. Rafiq Ahmad and Iqbal Ahmad, the plaintiffs-appellants, instituted a suit against the defendants, Mohammad Shafi and others in the Court of the Civil Judge of Aligarh. That suit came up before the Court for hearing on 18th May 1945. The plaintiffs had summoned more than 20 witnesses for that date; hut only two could be examined on that date. The case was then adjourned for further hearing to the next day, viz, 19th May 1945. On the last mentioned day, one more witness was examined; and, for want of time, the case was adjourned for further hearing to 21st May 1945, on which date the plaintiffs applied for time to move the District Judge for transfer of the suit to some other Court. The application was granted and plaintiffs were ordered to pay Rs. 50 as costs of adjournment. The costs were to be paid by 26th May 1945, but they were not paid. An application for transfer of the suit was filed in the Court of the District Judge; but it was rejected. Thereafter, 26th October 1945, was fixed for final disposal of the suit. The plaintiffs applied for change of date; but their application was rejected. On 25th October 1945, the plaintiffs took out summonses for 15 witnesses, but they (plaintiffs) were absent when the suit was taken up for hearing on 26th October 1945. The hearing was adjourned to 29th October 1945. The Court proceeded to decide the suit on merits, under Rule 3 of Order 17, Civil P.C., and dismissed it the same day. The plaintiffs made an application under Order 9, Rule 9, Civil P.C., to have the dismissal set aside; but the Court dismissed the application as not maintainable, on the ground that the suit was decided under Order 17, Rule 3, Civil P.C. This appeal is directed against the order dismissing the application under Order 9, Rule 9, Civil P.C.
2. On behalf of the appellants, it has been contended that the provisions of Rule 3 of Order 17 of the Code in terms did not apply and the Court should be deemed to have acted under Rule 2 of the same order, read with Order 9 of the Code. Rule 3 of Order 17 is as follows:
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, proceed to decide the suit forthwith.
The plaintiffs had not applied for, nor were they granted, time to do anything. On 19th May 1945, the Court adjourned the suit for want of time and on 21st May the plaintiffs were granted time to make an application for transfer and they did so. When the case was adjourned on 21st May the plaintiffs were, no doubt, ordered to pay lis. 50 as costs; but the order allowing adjournment was not made conditional on payment of costs. 26th October 1945 was the date fixed for final disposal of the suit. Obviously, therefore, Rule 3 of Order 17 had no application and the Court could not proceed to decide the suit on merits under the said Rule.
3. Rule 2 of Order 17 reads as follows:
"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 by O, 9 or make such other order as it thinks fit."
And to this Rule this Court has added Where on any such day the evidence, or a substantial portion of the evidence, of any party has been recorded and such party fails to appear, the Court may in its discretion proceed with the case as if such party were present, and may dispose of it on the merits. Explanation:....
As 26th October 1945, was not the first hearing, it must be deemed to be an adjourned hearing contemplated by Rule 2 of C.17 and the plaintiffs having failed to appear on that day, the Court could proceed "to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit;" and, in view of the provisions contained in the paragraph added by this Court the Court concerned could proceed to dispose of the suit on merits if the evidence or a substantial portion of the evidence of any party had been recorded and such party had failed to appear. In this case, the entire evidence had not been recorded and the examination of 3 out of 20 witnesses could not be considered as the recording of a substantial portion of the evidence. The expression "or make such other order as it thinks fit" did not empower the Court to decide the suit on merits; and, in any case, the circumstances in which the Court could proceed to dispose of the suit on merits must have been those which are mentioned in the now paragraph added by this Court in Rule 2. Therefore, the Court could not decide the suit on merits, even under Rule 2 of Order 17 as amended by this Court. In the circumstances of the present case, the Court could proceed only to dispose of the suit in one of the modes directed in that behalf by Order 9. We, therefore, find considerable force in the contention put forward on behalf of the appellants.
4. The learned Counsel for the respondents has contended that the suit was dismissed on merits under O 17, Rule 3, Civil P.C. and the decree which followed could only be challenged in appeal that there being no dismissal under Order 9, Rule 8, Civil P.C., the application under Order 9, Rule 9, was not maintainable, and that in an appeal [from an order rejecting the application under Order 9, Rule 9, the question whether the Court could or could not proceed to dispose of the suit on merits under Order 17, Rule 3 could not be gone into. On the authority of a decision of a Division Bench of this Court in Nasir Khan v. Itwari A.I.R. (11) 1924 ALL. 144 the learned Counsel further contended that the appellate Court should see what the Court has done and not what it should have done. He also relied upon a single Judge case in Madho Das v. His Highness the Maharajah of Banaras A.I.R. (12) 1925 ALL. 252 which was based upon the earlier decision in Nasir Khan's case A.I.R. (11) 1924 ALL. 144. The appellants' learned Counsel has sought to distinguish the cases referred to above and has invited our attention to the case of Raja Singh v. Manna Singh and Ors. A.I.R. (27) 1940 ALL. 217 where in a revision this Court had considered the question whether an ex parte decree under Rule 3 of Order 17 of the Code was, in effect, a decree under the said Rule, or it was an ex parte decree which could be set-aside on an application under Order 9, Rule 3, Civil P.C. The respondents' counsel has urged that Raja Singh's case A.I.R. (27) 1940 ALL. 217 has no bearing on the facts of the present case.
5. In Nasir Khan's case A.I.R. (11) 1924 ALL. 144 on the date fixed for hearing of an appeal the appellant as well as his counsel were absent, the appellant's brother was present and applied for adjournment, but it was refused and the appeal was dismissed "on the merits" as the Court found no force in the appeal. In second appeal it was contended that under Order 41 Rule 17, Civil P.C., the Court should have either allowed an adjournment or dismissed the appeal for default. The respondents urged that if the appellant's contention was correct no further appeal lay. Both the contentions were overruled and the Court observed:
The right of appeal does not depend on what a Court ought to have done but on what it actually did.
6. Rule 17 of Order 41 of the Code empowers the Court to make an order dismissing the appeal in a case where the appellant fails to appear on the date fixed for the bearing of the appeal or on any other day to which the hearing is adjourned and also to decide an appeal ex parte if on any such date the respondent fails to appear, The Court is given the discretion to dismiss the appeal for default and it follows that the Court can also dismiss the appeal on merits. If an appeal is dismissed for default under Rule 17 of Order 41, on sufficient cause being shown, the appeal can be re-admitted under Rule 19 of Order 41 for re. hearing and decision on merits. In other cases-a further appeal, if allowed by law, can be filed. The wordings of Rules 2 and 3 of Order 17 of the Code are different. Therefore, the observations in Nasir Khan's case A.I.R. (11) 1924 all. 144 cannot be helpful in deciding a, case like the one before us. It may be remarked in passing that in Nasir Khan's case A.I.R. (111) 1924 All. 144 an appeal was filed and it was urged that an application for re-admission of the appeal should have been filed while in the present case an application was presented where an appeal could have been filed. Different considerations arise in the two cases referred to above, We are, therefore, not pre-Spared to apply the principle laid down in Nasir Khan's case A.I.R. (11) 1924 ALL. 144 to the facts of the present case.
7. Madho Dass's case A.I.R. (12) 1925 All. 252 is also distinguishable. There
"the defendant had taken time for framing of issues, and on the date finally fixed he did not appear. The plaintiff was present. The Court framed issues, took evidence on behalf of the plaintiff, and decided the case on that evidence."The provisions of Rule 3 of Order 17, Civil P.C., were clearly applicable to the facts of that case and the principle laid down in Nasir Khan's case A.I.R. (11) 1924 ALL. 144 was applied.
8. Raja Singh's case A.I.R. (27) 1940 ALL. 217 is more in point. In that case, there were several adjournments for one reason or the other. There was a change of presiding officers and the new presiding officer fixed a date for final disposal. On the date so fixed the plaintiff appeared, but the defendant was absent. The Court made the following order:
Today the defendants absented though last time they took time to file a compromise. The suit is therefore decided to-day under Order 17, K. 3, Civil P.C.
On the finding that it was an ex parte decree as contemplated in Order 9, Rule 13, of the Code an application was made thereunder. The matter was taken to this Court in revision, and it was contended that the suit having been dismissed under Order 17, Rule 3, Civil P.C., no application under Order 9, Rule 13, Civil P.C. was maintainable. The contention was overruled and at p. 202 it was Observed:
The mere fact that the Court remarked on 18th August 1937, when decreeing the suit in the absence of the defendants, that it was acting under Order 17, Rule 3 cannot make Order 17, Rule 3 applicable.... The defendants had not, on the date immediately preceding 18th August 1937, taken time for filing a compromise, or, for the matter of that, for anything else.
The Court held on the facts that the case was not heard and decided on 18th August 1937, in accordance with the provisions of Order 17, Rule 3, and that an application under Order 9, Rule 13 lay.
9. It is clear, therefore, that this Court in revision entered into the question whether an order purporting to have been passed under Order 17, Rule 3, Civil P.C. was an order under that provision of law.
10. In the present case the Court below bad made the following order on 29th October 1945:
Since part (most) of the evidence of the plaintiffs has been recorded and the case was adjourned on their application I proceed under Order 17, Rule 3, Civil P.C.
As we have seen above, only 3 out of 20 witnesses-bad been examined and the case had not been adjourned to 29th October 1945, on the application of the plaintiffs. It was an adjourned date of hearing. Clearly, therefore, the Court had no jurisdiction to proceed with the suit under Rule 3 of Order 17, Civil P.C. That being so, the Court could proceed under Rule 2 of Order 17, read with Order 9, Rule 8, Civil P, C. The order dismissing the suit' did not make any mention of the Order or the Rule under which it was passed. The learned Counsel for the respondents has laid stress on the fact that there was no dismissal under Order 9, Rule 8, Civil P.C. The dismissal having taken place on an adjourned hearing, the provisions of , Order 9, Rule 8, could be applied only to a case i covered by Order 17, Rule 2, and the present case being a case contemplated by Rule 2 of Order 17 and not one contemplated by Rule 3 of the said Order, the dismissal must be deemed to be under Order 9, Rule 8. The plaintiffs could, therefore, treat the dismissal as one under Order 17, Rule 2, read with Order 9, B. 8, and file an application under Order 9, Rule 9, ' Civil P.C.
11. We are, therefore, of opinion that the application under Order 9, Rule 9, Civil P.C., filed by the plaintiffs was maintainable and the lower Court was wrong in holding that it was not maintainable. Accordingly, we allow this appeal, set aside the order, dated 7th September 1946, dismissing the plaintiffs' application under Order 9, Rule 9, Civil P.C., and remand the case to the trial Court for disposal of the said application in accordance with law. The costs of this appeal will abide the ultimate result of the application.
Alert