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Case Number

Civil Revn. No. 323 of 1958, against order of S.C.C, Agra, J., D/- 19-12-1957

Advocates

S.B.L. Gaur
M.L. Hajela

Judges

Mithan Lal, J.

Acts

provisions of Order XVII Rule 2 of the CPC,
Order XVII Rule 2 and Rule 3, Rule 3
Order XVII Rule 3 of the CPC.4.
Rule 3 and not Rule 2. Rule 2
Order 17, Rule 3 of the CPC
provisions of Rule 2
Rule 2 and Rule 3
Order XVII Rule 3
Rule 2. Rule 3,
2 of Rule 2

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The plaintiff filed a suit for ejectment and arrears of rent. After a number of adjournments the matter was fixed for final hearing on 20 July 1956. On that date the defendant applied for adjournment on grounds of illness; the court allowed time to the defendant to produce his evidence on 24 July 1956 and directed that the plaintiff's evidence be recorded on 20 July. The defendant's counsel was given time until after lunch on 20 July to prepare for cross-examination; when proceedings resumed after lunch the defendant's counsel stated that he had no instructions and refused to cross-examine the plaintiff's witnesses. The plaintiff's evidence was recorded and the matter was adjourned to 24 July 1956 for judgment. The defendant did not appear on 24 July; the suit was decided on the merits on that date.

The defendant applied for restoration on 23 August 1956; both courts below dismissed that application, holding that the suit had been decided under Order XVII, Rule 3 of the Civil Procedure Code (CPC) and that the defendant's remedy, if any, was by appeal and not by restoration. The defendant filed the present revision challenging those orders. Counsel for the defendant (Sri K.B.L. Gaur) contended that the Court had no jurisdiction to fix a date for judgment after having allowed time and that the case could not properly be decided under Order XVII, Rule 3.

Legal Issues Presented

Whether the Court had jurisdiction to proceed to fix a date for judgment after having granted the defendant time to take steps (produce evidence and cross-examine) and whether it was proper to decide the suit under Order XVII, Rule 3 of the CPC.
Which provision applies to the facts — Order XVII Rule 2 or Order XVII Rule 3 — particularly where the adjourned date was fixed on the application of the party who later failed to act?

Arguments of the Parties

Appellant's (Defendant's) Arguments

The Court had no jurisdiction to fix a date for judgment after having allowed the defendant time to prepare and produce evidence.
The suit could not properly be decided under Order XVII, Rule 3 of the CPC — implying that Rule 2, and not Rule 3, should have applied.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ramcharan Lal v. Raghubir, ILR 45 All 618 : (AIR 1923 All 551)	Supports the view that under paragraph 1 of Order XVII Rule 2 the Court may proceed to dispose of the suit ex parte or in one of the modes directed by Order IX.	Cited to support the interpretation of paragraph 1 of Rule 2 and the Court's understanding of the remedies available under Rule 2.
Qudrutullah v. Mohajnmad Kasim Khan, AIR 1952 All 208	Holding that Order XVII Rule 2 applies where the adjourned date was not fixed on the motion of the defaulting party.	Referred to as an example where Rule 2, not Rule 3, applied because the adjourned date had not been fixed on the defaulting party's motion.
Sri. Krishen v. Radha Krishen, AIR 1952 All 652	Holds that where a party asks for adjournment on the date fixed for final hearing and then fails to appear or to take necessary steps, Rule 3 is the proper rule to apply.	Identified as factually analogous and supportive of applying Rule 3 to the present case.
Faiyaz Khan v. Mithan, AIR 1954 All 222	Affirms the view that Rule 3 applies where the adjourned date was fixed on the application of the defaulting party.	Cited as additional Division Bench authority supporting the same view (Rule 3 applicable).
Ram Adhin v. Ram Bharose, ILR 47 All 181 : (AIR 1925 All 182)	Authority in which the points concerning Rules 2 and 3 have been discussed.	Listed among authorities relied on to show the distinction between Rule 2 and Rule 3.
Rukam v. Tara Chand, AIR 1922 All 68	Authority in which the points concerning Rules 2 and 3 have been discussed.	Referred to as part of the body of decisions analysing these rules.
Gulab v. Madhusudan Lal, AIR 1949 All 221	Authority in which the points concerning Rules 2 and 3 have been discussed.	Cited as part of the jurisprudence canvassing the distinction between the two rules.
Mst. Jagga v. Kanhaiya Lal, AIR 1957 All 344	Authority in which the points concerning Rules 2 and 3 have been discussed.	Referred to among other authorities on the subject.
Dildar Husain v. Abdul Moid, AIR 1957 All 238	Authority in which the points concerning Rules 2 and 3 have been discussed.	Listed as part of precedent material considered.
Radhey Shyam v. Ghasita, 1958 All WR (HC) 76	Authority in which the points concerning Rules 2 and 3 have been discussed.	Included in the compilation of cases discussing the relevant rules.

Court's Reasoning and Analysis

The Court examined the order-sheet and found two distinct adjournments that were material to the further progress of the suit:

Time granted (on the defendant's application) to produce his evidence on 24 July 1956.
Time granted (on 20 July, again at the defendant's request) until after lunch to prepare for cross-examination of the plaintiff's witnesses; after lunch the defendant's counsel stated he had no instructions and refused to cross-examine.

The Court treated the defendant's refusal to cross-examine after having been given time as a default: since time had been expressly allowed to the defendant to perform an act necessary for the further progress of the suit, that refusal fell squarely within Order XVII Rule 3 which permits the Court to proceed to decide the suit forthwith when a party to whom time has been granted fails to perform the act for which time was allowed.

The Court further observed that on 24 July (the adjourned date fixed for judgment and for production of the defendant's evidence) the defendant did not appear, nor did he seek to set aside any ex parte order or to take steps for production of evidence. This second default reinforced the applicability of Rule 3.

The Court explained the distinction between Order XVII Rule 2 and Rule 3 as follows (drawing on the text of the rules and authorities):

Rule 2 applies where the day in question is "the day to which the hearing of the suit is adjourned" but not where that adjourned date was fixed on the motion of the defaulting party; para 2 of Rule 2 (and the Explanation) allow the Court in certain circumstances (notably where a substantial portion of evidence of a party has already been recorded) to dispose of the case on merits and to treat a party as present if represented.
Rule 3 specifically applies where the adjournment was obtained by the party who subsequently fails to appear or to perform an act necessary for progress — in those situations Rule 3 authorizes the Court to decide the suit forthwith.

The Court surveyed authorities and emphasized three decisions in particular: Qudrutullah (where Rule 2 applied because the adjourned date was not fixed on the defaulting party's motion), Sri Krishen (where Rule 3 applied because the adjournment had been sought by the defaulting party), and Faiyaz Khan (which took the same view). On the facts of the present case — where adjournments were granted at the defendant's request and the defendant failed to take the steps for which time had been allowed — the Court concluded that Rule 3 was the proper provision to apply.

The Court therefore held that both defaults (failure to cross-examine after being given time and failure to appear/produce evidence on 24 July) justified deciding the suit under Order XVII Rule 3.

Holding and Implications

Core Holding: REVISION DISMISSED.

Consequences for the parties:

The revision filed by the defendant fails and is dismissed with costs.
The stay order previously in force is discharged.
The record of the case is to be returned to the Court below as early as possible.

Broader implications: The decision applies pre-existing interpretations of Order XVII Rules 2 and 3 to the facts; the Court relied on settled authorities to clarify that Rule 3 applies where an adjourned date has been obtained on the application of the party who later defaults. The opinion does not purport to lay down a new precedent beyond applying established principles to the facts at hand.

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Ramesbwar Pd. v. Rajasthan Government

1. This revision filed by the defendant arises out of an appellate order refusing to restore the case.

2. The plaintiff brought a Suit for ejectment and arrears of rent and after number of adjournments the case was fixed for 20th July, 1956 for final hearing. On that date the defendant filed an application for adjournment on the ground of illness. This application was partly granted inasmuch as the defendant was given time till the 24th of July, 1956, for production of his evidence while the plaintiff's evidence was ordered to be recorded that very day. The defendant's counsel wanted time to prepare the case for cross-examination of the plaintiffs witnesses till after lunch. That time was also granted. When the case was taken up after lunch the defendant', counsel stated that he had no instructions. After recording plaintiff's evidence the case was adjourned to 24th July, 1956 for judgment but even on that date the defendant failed to appear. The case was decided on merits. An application for restoration which was made on 23rd August, 1956, has been, dismissed by both be Courts below folding that the suit had been decided under Order 17, Rule 3 of the CPC and the remedy of the defendant, if any, lay in filing an appeal and not in restoration. It is against these orders that the present revision has been filed. It is contended by Sri. K.B.L Gaur that the Court had no jurisdiction to proceed to fix a date for judgment after having allowed time and that the case could not be decided under Order XVII, Rule 3. Both these contentions have no force.

3. The perusal of the order sheet goes to show that after the adjournment application was made the application was allowed to this extent that the defendant was allowed to produce his evidence on 24th July, while the plaintiff was allowed to produce his evidence on the same day. The defendant's counsel when asked for time to cross-examine the plaintiff's witnesses, time was allowed upto lunch. After lunch the defendant's counsel stated that he had no instructions. There were two adjournments granted to the defendant, one was for production of evidence on the 24th July, while the other was to cross-examine the plaintiff's witnesses after lunch, both of which were necessary for the further progress of the suit. The defendant failed to take advantage and his counsel after taking time refused to cross-examine I the plaintiff's witnesses on the ground that he had no instructions. This itself amounted to a default and is fully covered by Rule 3 inasmuch as time having been granted to the defendant to cross-examine the plaintiff's witnesses, which was necessary for the further progress of the suit, the refusal of the defendant's counsel to do so amounted to a default and consequently the Court was justified in deciding the case under Order XVII Rule 3 of the CPC.

4. The second default which was committed was on 24th July, 1956. Though it was a date for judgment, the defendant did not put in appearance nor did he put in any application either for cross-examination of plaintiff's witnesses or for setting aside the ex-parte order or for production of his evidence. The suit which was decreed on 24th July, was rightly decided under Order XVII Rule 3 because that was an adjourned date for two purposes as said earlier.

5. As regards the distinction between the Order XVII Rule 2 and Rule 3, Rule 3 will Only apply where the provisions of Rule 2 do not apply. The two rules as amended by this Court are as follows.—

“3. Where in a case to which Rule 2 does not apply 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 forth with.

Rule 2 as amended is as follows:—

“2. 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 Order 9 or make such other order as it thinks fit.

Where the evidence, or a substantial portion of the evidence, of any party has been already recorded and such party fails to appear on such day, 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 — No party shall be deemed to have failed to appear if he is either Present or is represented in Court by an agent or pleader, though engaged only for the purpose of making an application.”

6. Paragraph 2 in this rule as well as the explanation were added by means of an amendment in 1945. In Rule 2 what is required is that the day on Which the case is heard should be “the day to which the hearing of the suit is adjourned”. This rule does not say in what manner the hearing has been adjourned. Adjournment of cases, whether on the upon of the Court or on the motion of any of the parties, if the party claiming adjournment is not a defaulting party, on the subsequent date, will be covered by Rule 2. Rule 3, however, specifically lays down that the adjournment should have been obtained by the party who failed to appear or failed to perform any other act necessary for the further progress of the suit etc. This, to my mind, gives the real clue to the difference between the two rules.

7. Paragraph 2 of Rule 2 will only become operative where the evidence or a substantial portion of the evidence of any party has already been recorded and then such party (that is whole evidence has been so recorded) fails to appear on such date, the Court has been given a discretion to dispose of the case on merits. The explanation given under this rule further gives the Court a power to dispose of the case on merits if the party is present personally or is represented in Court by am agent or pleader though only for the purpose of making an application. It will thus appear that under para 1 of Rule 2 the Court may proceed to dispose of the suit ex-parte or in one of the manners given in Order IX. This view is supported by Ramcharan Lal v. Raghubir, ILR 45 All 618 : (AIR 1923 All 551). Under para 2 of that rule a case can be disposed of on merits provided where the evidence or a substantial portion of the evidence of the defaulting party has been recorded and further that such a party shall he deemed to be present if it is only for the purpose of making an application. Rule 3 will, however, only apply where the adjourned date has been fixed either for the purposes of evidence or for the attendance of witnesses or for any other act necessary for the further progress of the suit on the aplication or request of the defaulting party.

8. There are a number of authorities, in which these points have been discussed and they are; Ram Adhin v. Ram Bharose, ILR 47 All 181 : (AIR 1925 All 182), ILR 45 All 618 : (AIR 1923 All 551). Rukam v. Tara Chand, AIR 1922 All 68, Gulab v. Madhusudan Lal, AIR 1949 All 221, Qudrutullah v. Mohajnmad Kasim Khan, AIR 1952 All 208, Sri. Krishen v. Radha Krishen, AIR 1952 All 652, Faiyaz Khan v. Mithan, AIR 1954 All 222, Mst. Jagga v. Kanhaiya Lal, AIR 1957 All 344, Dildar Husain v. Abdul Moid, AIR 1957 All 238 and Radhey Shyam v. Ghasita, 1958 All WR (HC) 76.

9. I do not think it worthwhile to discuss what has been laid down in all the aforesaid authorities. I content myself by referring only to three cases. In the case of Qudrutullah, AIR 1952 All 208 (supra), the date fixed for hearing was an adjourned date, hut it had not been fixed on the motion of the defaulting party and consequently the Division Bench held that the provisions of Order XVII Rule 2 of the CPC, applied. In the case of Sri. Krishen, AIR 1952 All 652 (supra), the date for hearing had been fixed on the motion of the defaulting party and it was laid down by the Division Bench that when a party asks for an adjournment of a case on the date fixed for final hearing and then fails to appear or fails to take steps for the necessary prosecution of the case, the proper rule to apply to such a case would be Rule 3 and not Rule 2. The latter case fully applies to the facts of the present case. In the case of Faiyaz Khan, AIR 1954 All 222 (supra), the same view was laid down by a Division Bench of this Court. A perusal of all the aforesaid authorities will show that the distinction between Rule 2 and Rule 3 has been maintained and that for the application of Rule 2 what is necessary is that the date should be merely an adjourned date but should not be on the motion of the defaulting party.

10. In case the date of hearing was fixed on the motion of the party who subsequently failed to appear the proper rule to apply would be Rule 3 and not Rule 2. Rule 2 is thus broader in its application because it will apply to all cases in which the date of hearing has been adjourned except those cases which are covered by Rule 3, that is where the date for final hearing has been fixed on the adjournment application of the defaulting party. It may also be mentioned in the end that even under Rule 2 when paragraph 2 applies or the explanation applies the case may be decided on merits and it is a wrong motion that all case disposed of under Rule 2 are ex-parte decisions.

11. In view of what has been said above the revision fails.

12. It is hereby dismissed with costs. The stay order is discharged. Record of the case shall be sent back to the Court below as early as possible.

FF/J/D.H.Z

13. Revision dismissed.

Ramesbwar Pd. v. Rajasthan Government

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Defendant's) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ramesbwar Pd. v. Rajasthan Government

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