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Ramineni Suryanarayana v. Chatena Traders, Guntur .
Summary of Opinion — Revision Against Order Dismissing Petition to Set Aside Alleged Ex Parte Decree
Factual and Procedural Background
The suit was for recovery of Rs. 2,740 as the price of pesticides allegedly supplied to the defendant. The defendant's written statement pleaded a partial discharge, specifically that Rs. 2,000 had been paid. The sole issue in the suit was whether the payment pleaded by the defendant was true; the burden of proving that plea was placed on the defendant.
Despite several adjournments, when the matter was posted for trial on 3-7-1978 the defendant did not produce any witnesses or evidence. The learned Munsif recorded that the defendant "himself has not entered into the witness box to substantiate the plea taken by him, the burden of which lies upon him." On that date P.W.1 was examined and denied the defendant's plea of partial payment. The suit was decreed on 4-7-1978.
The record shows the defendant's counsel was present both on 3-7-1978 when P.W.1's evidence was recorded and on 4-7-1978 when judgment was pronounced. The defendant thereafter filed a petition under Order IX, Rule 13, C.P.C. seeking to set aside what he characterized as an ex parte decree. The District Munsif dismissed the petition on two grounds: (1) that the decree was not ex parte and thus a petition under Order IX, Rule 13 did not lie; and (2) that there were no sufficient grounds for allowing the petition. The defendant then filed this revision petition challenging that order.
Legal Issues Presented
- Whether the proceedings on 3-7-1978 and the judgment pronounced on 4-7-1978 amounted to an ex parte decree such that a petition under Order IX, Rule 13, C.P.C. to set aside the decree was maintainable.
- Whether the presence of a party's counsel in Court constitutes the presence of the party for purposes of Order XVII, Rules 2 and 3, C.P.C., and thus whether Rule 2 or Rule 3 is applicable in the factual circumstances of this case.
Arguments of the Parties
Petitioner's Arguments (as presented in the opinion)
- The petitioner (through his counsel) contended that because the defendant was not personally present and the counsel merely asked for an adjournment which was refused and did not further participate, the proceedings and the judgment must be treated as ex parte.
- He argued that mere presence through counsel should not be equated with the party's personal presence for the purpose of invoking the provisions of Order XVII, Rule 3, C.P.C., and therefore a petition under Order IX, Rule 13, C.P.C. lies to set aside an ex parte decree.
- To support this position he relied on several decisions of the Court (and other High Courts), including the Full Bench decision in M. Agiah v. Mohd. Abdul Kareem, and single-judge decisions such as M. Surya Rao v. P. Peddiyya and Suryamma v. A.P. State Electricity Board; he also relied on a Madras High Court decision in C. R. Corera & Brothers v. Chief Secretary (Government of Pondicherry) and a Full Bench decision Pichamma v. Sreeramulu.
Respondent's Arguments
The opinion does not contain a detailed account of the respondent's legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| M. Agiah v. Mohd. Abdul Kareem (Full Bench) | The Full Bench held that where parties fail to appear on the adjourned date, Rule 2 and not Rule 3 of Order XVII applies; Rule 3 operates only where parties are present and prepared to proceed. | The Court distinguished this authority: it is not an authority for the proposition that appearance through counsel is tantamount to the personal absence of the party. The decision was treated as inapplicable to the factual question whether counsel's presence equals party's presence. |
| M. Surya Rao v. P. Peddiyya (single-judge) | Held that Order XVII, Rule 3 does not apply where a party appears merely to seek an adjournment and, after refusal, either leaves or remains but does not participate; mere presence of counsel "not duly instructed" cannot be considered appearance of the party under Rule 3. | The Court noted that M. Surya Rao was a case where counsel was "not duly instructed" and did not take part; it distinguished those facts from the instant case where counsel remained and did not report "no instructions" or withdraw. |
| Suryamma v. A.P. State Electricity Board (single-judge) | Held that mere physical presence in Court does not amount to participation in the hearing; such a decree should be treated under Order XVII, Rule 2 rather than Rule 3, and a petition under Order IX, Rule 13 lies. | The Court distinguished this decision on its facts: the test is whether the advocate's presence amounted to participation in the hearing. In the instant case the advocate participated (by seeking adjournment and remaining), so the case was different. |
| C. R. Corera & Brothers v. Chief Secretary, Government of Pondicherry (Madras High Court) | Discussed the applicability of Order XVII, Rule 3 where a suit is adjourned on application of a party and the advocate is present at the adjourned hearing; noted that Rule 3 applies when the party must be present at the adjourned hearing and the advocate was present. | The Court observed that this decision actually goes counter to the petitioner's contention and was relied upon to show that an advocate's presence can amount to the party's presence for Rule 3 purposes. |
| Pichamma v. Sreeramulu (AIR 1918 Mad 143) (Full Bench) | Held that Rules 2 and 3 of Order XVII are independent and mutually exclusive; where requisites of Rule 2 are satisfied, Rule 2 should be applied and not Rule 3. | The Court noted that this decision does not address whether personal presence includes presence through counsel, and therefore it did not directly assist the petitioner's contention on counsel-representation issues. |
Court's Reasoning and Analysis
The court proceeded through a step-by-step analysis grounded on the trial record and the cited authorities:
- Factual finding: On both 3-7-1978 (evidence of P.W.1) and 4-7-1978 (pronouncement of judgment) the defendant's counsel was present in Court. The counsel had sought an adjournment, which was refused.
- Statutory/textual premise: Order (general provision) and Rule 1 (as quoted in the opinion) permit a party to enter appearance and perform acts in person or by a recognised agent or by a pleader; accordingly, presence of counsel can constitute presence of the party for purposes of Order XVII, Rule 3.
- Evaluation of conduct: There was nothing on the record to show that the counsel, after the adjournment was refused, withdrew, reported "no instructions", or ceased to represent the defendant. The counsel remained present on both dates and did not cease participation merely because no evidence was led for the defendant.
- Distinguishing precedent: The court reviewed the authorities relied upon by the petitioner. Decisions that held mere physical presence (or presence of counsel not duly instructed) did not amount to party presence were distinguished on their facts — those cases involved counsel who left, reported "no instructions", or were expressly found not to participate. The court emphasized that those cases do not lay down a rule that the presence of an instructed counsel can never constitute presence of the party.
- Application to the instant case: Because counsel was present and did not withdraw or disclaim instructions, his presence amounted to the defendant's presence. Consequently, the proceedings were not ex parte and a petition under Order IX, Rule 13 (which applies to setting aside ex parte decrees) was not the appropriate remedy.
- Alternative consideration: Even if a petition under Order IX, Rule 13 were theoretically available, the petition failed on merits because the petitioner did not provide any explanation as to why he himself could not be present despite several adjournments having been given.
Holding and Implications
HOLDING: The revision petition is dismissed. The court held that the decree was not an ex parte decree because the defendant was present in Court through his counsel on the dates when evidence was recorded and the judgment was pronounced; therefore a petition under Order IX, Rule 13, C.P.C. did not lie. The lower court's dismissal of the petition was affirmed.
Implications: The immediate consequence is that the decree pronounced on 4-7-1978 stands and the District Munsif's order dismissing the petition to set it aside is maintained. The court did not purport to lay down any new broad precedent beyond its application and distinction of earlier decisions; its conclusion is fact-specific — focusing on whether counsel's presence amounted to representation and participation on the relevant dates. No broader change to the law was announced in this opinion beyond the court's assessment and application of existing authorities to the facts before it.
Disposition: Petition dismissed.
1. This revision is directed against the order of the District Munsif, Guntur, dismissing the petition for setting aside an ex parte decree. In a suit for the recovery of a sum of Rs. 2,740/- said to be the price of the pesticides supplied to the defendant, the defendant had pleaded partial discharge and the only issue raised in the suit is whether the payment pleaded by the defendant is true. The burden of proving that issue was placed rightly on the defendant. In spite of several adjournments no evidence was adduced by the defendant when it was posted for trial. On 3-7-1978 the defendant did not produce any witnesses or any evidence and as noted by the learned Munsif
"he himself has not entered into the witness box to substantiate the plea taken by him, the burden of which lies upon him". The suit was decreed on the evidence of P. W. 1, who was examined on that day and denied the defendant's plea of partial discharge in the written statement that he had paid Rs. 2,000/-. Accordingly the suit was decreed on 4-7-1978. From the judgment it is clear that the counsel for the defendant was present on 3-7-1978 when the evidence of P. W. 1 was recorded and on 4-7-1978 when the judgment was pronounced. On the footing that an ex parte decree was passed against him the defendant filed a petition under Order IX, Rule 13, C. P. C. to set aside the decree. The petition was dismissed both on the ground that it was not an ex parte decree and a petition under Order IX, Rule 13, C. P. C. does not lie and on the ground that there are no sufficient grounds for allowing the petition.
2. In this revision petition it is contended by Mr. B. V. Subbaiah, the learned counsel for the petitioner, that the proceedings taken on 3-7-1978 and the judgment and decree rendered on 4-7-1978 must be treated as an ex parte decree inasmuch as the defendant was not present in person and his counsel has asked for an adjournment and the same having been refused did not further participate in the proceedings. It is true that the defendant was not present in person, but admittedly his counsel was present and sought an adjournment. Presence of the counsel on behalf of the defendant constitutes the presence of the defendant. If, as admitted by the petitioner, his counsel has sought an adjournment of the hearing he effectively represented the defendant on the date when the evidence of P. W. 1 was recorded and the judgment was pronounced. There is nothing on record to show that after the adjournment was refused, the counsel withdrew from the case or resorted 'no instructions'. On the contrary both on that day and even on the next date when the judgment was pronounced, he was present. Order , R. 1 enables the party to enter appearance, file any application or perform any act in person or by his recognised agent or by a pleader except where it is otherwise expressly provided by any law for the time being in force. Hence presence of the party's counsel amounts to presence of party for purposes of Order 17, R. . The presence of the counsel constitutes the presence of the defendant and the proceedings taken in his presence on 3-7-1978 and the judgment rendered on 4-7-1978 cannot be treated as ex parte judgment and a such a petition under Order IX, Rule 13, C. P. C. was rightly held to be not maintainable.
3. Mr. Subbayya, the learned counsel for the petitioner, however relied upon certain decisions of this Court to contend that if a party is present through counsel he cannot be deemed to be present for the purpose of proceeding under Order 17, Rule 3, C. P. C. and if the party is not present in person but is only present through counsel he must be deemed to be absent and any proceeding taken in such a situation must be deemed to be ex parte proceeding entitling sch party to file an application under Order 9, Rule 13, C. P. C. He first referred to the Full Bench decision of this Court in M. Agiah v. Mohd. Abdul Kareem, (FB), in which it was held thus :-
"Both on the language of the relevant rules and the decided cases, the position is clear that where the parties fail to appear in Court, it is open to the Court to dismiss the suit for default, the other alternative being to adjourn it to another date. But it is not competent to the Court in the absence of parties to proceed to dispose of the case on the merits, though the defaulting party is also guilty of non-compliance with the requirements of Rule 3."
The Full Bench was dealing with a case where a party who was granted time to perform an act not only failed to do it but also absented himself on the date to which the hearing was adjourned. The Court held that in such a case Rule 2 and not Rule 3 of Order 17 applied. The Court further held that Rule 3 comes into operation only where the parties are present and are prepared to proceed with the further hearing of the case but commit default of the kind mentioned in that rule. This decision is not an authority for the proposition that the appearance of a party through a counsel is tantamount to the absence of a party and for the purpose of the application of Order 17, Rule 2 or 3, the Court contemplates the presence of the party in person. The learned counsel also relied upon another decision of a single Judge of this Court in M. Surya Rao. v. P. Peddiyya, , wherein Ekbote, J., as he then was held:-
"Order 17, Rule 3, C. P. C., does not apply to case where a party appears merely for the purpose of seeking an adjournment, after the refusal of which, whether he goes out or although remains present does not participate in the hearing of the case, in either case he would be considered as not present.......................... ... ... ... ... ... ... .... ..... .... ... ... ... ... ... ... .. .... ..... ...
It is now beyond doubt that the mere presence in Court of a party or his counsel not duly instructed cannot be considered as an appearance of the party within the meaning of Order 17, Rule 3, C. P. C., ... ... .... ... ... ... ... ... ... ... .. .. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...".
That again was a case where the party sought an adjournment and after the adjournment was refused, he left the Court and the Court set him ex parte and proceed to pronounce the judgment in the presence of the counsel "not duly instructed" and who did not take further part in the proceedings. Further it was a clear case where the Court set 'the defendant ex parte" and the counsel was "not duly instructed" and did not take part in the proceedings. In those circumstances, the Court held...........................................
"Mere presence in Court of a party or his counsel not duly instructed cannot be considered as an appearance of the party within the meaning of Order 17, Rule 3, C. P. C."
The learned counsel further relied upon a judgment of my learned brother Ramachandra Raju, J. in Suryamma v. A. P. State Electricity Board, wherein it was held that mere physical presence in Court does not amount to participation in the hearing when there is no actual participation as such in the hearing and the decree passed should be deemed to be one under Order 17, Rule 2, C. P. C. and not under Order 17, Rule 3 and as such a petition under Order 9, Rule 13, C. P. C. lies. This also is not a case where it was laid down that if the party is not present in person but is present through counsel he should be deemed to be not present for the purpose of O. 17, R. 2, C. P. C. The test laid down was whether the presence of the counsel for the party was mere physical presence in the Court or was it a presence in the Court amounting to participation in the hearing. On the facts and circumstances of that case it was held that the counsel present did not represent the party. Though the petitioner also relied upon a decisions of the Madras High Court in C. R. Corera & Brothers v. Chief Secretary, Government of Pondicherry, , that decision actually goes counter to his contention that the counsel's mere presence cannot be deemed to be the presence of the party for the purpose of Order 17, Rule 2 or 3, C. P. C. In para 7 Somasundaram, J. observed as follows:-
"Rule 3 applies to a case where the suit is adjourned on the application of a party and he is in default at the adjourned hearing. This is what has happened in this case. For Rule 3 to apply the party must be present at the adjourned hearing. His advocate has been present in this case. The decision under Order XVII, Rule 3 amounts to a decree and the remedy of the party aggrieved can be only by way of appeal."
The earlier Full Bench decision of the Madras high Court in Pichamma v. Sreeramulu (AIR 1918 Mad 143 (2) (FB)) which is sought to be relied upon by the learned counsel for the petitioner, also does not help him in any manner. That decision laid down thus:-
"There is no conflict between rules 2 & 3 of order 17. They are independent and mutually exclusive. Where the requisites of Rule 2 are satisfied, that rule and not Rule 3 should be applied although, in addition to the absence of the party, circumstances exist which would satisfy the requirements of Rule 3."
That decision does not deal with the question whether the presence of the parties in person or includes presence of the parties through their counsel; it lays down...........................
Rule 2 of Order 17, deals with cases of absence of parties and Rule 3 with failure to do what was ordered. If the party fails to appear Rule 2 applies and the Court should not assume that he is guilty of default and apply the stringent provisions of Rule 3. Rule 3 applies only to cases where the parties are present and have not satisfied the Court as to the existence of any adequate reason for their not having does what they were directed to do."
4. In the instant case, from the proceedings of the Court and the Judgment recorded by it, it is clear that the defendant was present through his counsel both on 3-7-1978 and 4-7-1978. The evidence was recorded in his presence and the judgment was pronounced in his presence. Although he sought an adjournment was refused he did not cease to represent the defendant-petitioner. He did not report 'no instruction'. He did not withdraw from the case or fail to participate in the proceedings. Merely because he did not lead any evidence to substantiate the plea taken by the defendant, it cannot be said that the defendant was set ex parte and an ex parte judgment and decree was rendered against him. Consequently a petition under Order 9, Rule 13, C. P. C. does not lie. That is what the lower court has held and I see no reason to interfere with the order. Even otherwise, assuming that a petition under Order 9, R. 13 does lie, there are no merits in the petition. He has not adduced any explanation as to why he could not be present although several adjournments were given.
5. This revision petition therefore fails and is accordingly dismissed.
6. Petition dismissed.
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