JUDGMENT — Mishra, J.
A learned single judge of this Court has disposed of a suit in purported exercise of power under O. 17, R. 3 of the Code of Civil Procedure and has dismissed the application for setting aside the ex parte decree saying:—
“The respondent-plaintiff filed the suit for return of the advance amount of Rs. 1,18,650/- paid by the plaintiff to the defendants. The suit was filed in 1980 and the defendants filed their written statements only in March, 1982. Issues were framed and the suit came up in the list for trial. The defendants were not ready and three weeks adjournment was granted as a matter of indulgence. Again on the adjourned date, the defendants were absent and since the defendants filed written statements, evidence was let in on the plaintiff's side and the defendant's counsel cross-examined the witness. No further evidence was let in on the side of the defendants, though time was granted. The defendants are not set ex parte and the suit was disposed of on merits. Hence, the proper course for the defendants is only to file appeal and not to invoke O. 9, R. 13 of the Code of Civil Procedure. In other words, it is a judgment on merits, and therefore, this application is not maintainable.”
After holding that the application is not maintainable, learned Judge has also said that:
“In the affidavit in support of this application, no sufficient reasons were forthcoming and therefore, their absence was deliberate and wilful. Ample indulgence was shown to them to defend the claim, but they were bent upon to protract the proceedings and in fact, succeeded in dragging on the suit for three years taking advantage of the fact that they are the residents of Kerala”.
It is further unfortunate that in a trial on the original side of this Court, when such was the situation that the plaintiffs were present and defendants were absent, attention of the Court was not drawn to Rules 2 and 3 of O. 17, particularly, the amendment by the Amendment Act 104 of 1976. O. 17 which contains rules as to adjournments, has existed too long for any person not knowing the true effect of the rules under it, the various interpretations by the leading judgments of the Courts, High Court Amendments to the Rules therein and the amendment by the Parliament to set at rest any controversy as to the interpretation of the Rules therein. R. 2 and 3 of this Order before 1976 Amendment read as follows:—
“Rule-2:— Where, on any day of 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.
Rule-3:— 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”.
A Bench of this Court in the case of Chandramati Ammal v. Narayanaswami Aiyar (1910) ILR 33 Madras 241) took the view that S. 157 of the old Code of Civil Procedure equivalent to Rule 2 in the present Code before 1976 amendment) dealt with cases of absence of parties and S. 158 of the old Code of Civil Procedure (equivalent to R. 3 of the present code before 1976 amendment) with failure to do what was ordered. A contrary view, however, was expressed by another Bench of the Court in Naganada v. Krishnamurthi (1910) ILR 34 Madras 97) where it was held that absence of a party on the date of the adjourned hearing did not preclude the Court from dealing with the case under S. 158 of the Old Code. The matter came on Reference before a Full Bench in the case of Pichamma v. Sreeramulu (AIR 1918 Madras 143(2) = I.L.R 41 Madras 286 = 1918 MWN 92 = 43 I.C 566 = 23 M.L.J) (F.B). This was a Reference in suit instituted first in the Court of the District Munsif of Kovvur and afterwards transferred to that of the Additional District Munsif. In the latter Court, the plaintiff examined most of his witnesses, and on the application of the defendants, the suit was adjourned to 7th of February, 1916. On that date, neither the defendant's guardian nor the vakils were present. The District Munsif closed the case and delivered judgment in favour of the plaintiff on 8th February, 1916. When it was placed before Abdul Rahim, J., he noticed as follows:—
“There is, in my opinion, a conflict of rulings in this court as to whether R. 2 or R. 3, O. 17, applies to facts like these. In Naganada Iyer v. Krishnamurthi Aiyar (1910) 34 Madras 797), which was a judgment of Munro, J. and myself, it was held that S. 158 of the Old Code empowers the Court in circumstances such as these in their case to decide the suit on the merits, whether the party at whose instance the adjournment was granted was present or not at the date fixed for hearing.
If the parties or any of them fail to appear on the fixed date, it is open to the Court to proceed either under S. 157 or S. 158. If there are no materials before the Court on which to come to a proper decision on the merits, it would ordinarily deal with the case under R. 2, otherwise under R. 3. In the case of Naganada Iyer v. Krishanmurthi Aiyar (1910) 34 Madras 97), an earlier decision of this Court reported in Chandramathi Ammal v. Bagnarayanasami Iyer (1910) 33 Madras 241) to which the present learned Chief Justice and Krishnaswami Aiyar, J., were parties, was not noticed. There it was held that S. 158 old Civil Procedure Code, which corresponds to R. 3, O. 17, of the new Code, would only apply if the parties are in attendance and there is failure to do what a party is given time to do. If the parties are not in attendance, then according to that ruling, S. 157 old Code, corresponding to R. 2, O. 17, of the present Code, would alone apply and that these two Rules are mutually exclusive. This view seems to have been approved in Gundan v. Kamakha Bama Chetti (1916 33 I.C 660) while the view propounded in Naganada Iyer v. Krishnamurthi Aiyar (1910) 34 Madras 97) appears to be the same as that taken in Enatal v. Jiban Mohan Rai (AIR 1914 Calcutta 360).
Leading judgment in the Full Bench was delivered by Kumaraswami Sastri, J. and the same was concluded with these words:—
“I am of opinion that the decision in Chandramathi Ammal v. Narayanasami Iyer (1910) 33 Madras 241) which, if I may say so with respect, is a well considered Judgment dealing fully with the matter, correctly sets out the principle to be applied to cases of absence of either party at the adjourned hearing. The decision of the question must depend on the express language of O. 17, Rr. 2 and 3. As pointed out in Chandamathi Ammal v. Narayanasami Iyer (1910) 33 Madras 241), S. 157 (Rule 2) deals with cases of absence of parties and S. 158 (Rule 3) with failure to do what was ordered. If the party fails to appear S. 157 (Rule 2) applies and there is no reason why the Court should assume (in the absence of any explanation) that he is guilty of default so as to apply the stringent provisions of S. 158 (Rule 3). I think the correct rule is to treat R. 3 as appling 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 done what they were directed to do. I have already dealt with the matter from the point of view of hardship to the parties and my own experience is that the rule laid down in Chandramathi Ammal v. Narayanasami Iyer (1910) 33 Madras 241), has been a safe and uniform guide to courts. The construction, moreover, is one that suggests itself on a consideration of the plain language of Rr. 2 and 3. I have no hesitation in coming to the conclusion that the decision in Chandramathi Ammal v. Narayanasami Iyer (1910) 33 Madras 241) ought to be followed”.
Wallis, C.J who recorded a separate opinion, however had been more specific in this behalf, saying as follows:—
“Under the Code, where the plaintiff appears and the defendant does not appear either on the day fixed for the first hearing (O. 9, R. 6 (1) or on any day to which the hearing of the suit is adjourned (O. 17, R. 2, read with O. 9, R. 6(1), the Court, if it is proved that the summons was duly served, may proceed ex parte. In either case, where the Court has disposed of the case ex parte and passed a decree against the absent defendant, he may, under O. 9, R. 13, move to set aside the decree on the ground that he was prevented by any sufficient cause from appearing when the suit was called on. When a case is called on and the defendant is absent and the Court resolves to proceed against him ex parte there is nothing, I am now of opinion, to prevent the Court from applying the provisions, of O. 17, R. 3, and dispossing of the suit notwithstanding the defendant's failure to do what he had been granted time to do, but that disposal will be, nonetheless both in fact and in law, ex parte, and the decree will be liable to be set aside by the defendant under O. 9, R. 13. If the ex parte decree is set aside, and the case restored and the defendant appears, it will still be open to the Court to apply the provisions of O. 17, R. 3, after hearing what the defendant has to say in explanation of his failure to do what he had been given time to do. There is, I think, no conflict at all between the two Rules, and each may be fully applied on this construction at the proper stage of the case. In so far as we laid down in Chandramathi Ammal v. Narayanasami Iyer (1910) 33 Madras 241) that the two Rules must be read as mutually exclusive I think we went too far”.
This authority of the full Bench of this Court has almost always found a reference in almost every judgment of the High Courts, when question whether R. 3 of O. 17 would apply or R. 2 thereof would apply has been posed. Some Courts, on account of conflicts emerging in the views of the judges of the High Courts as to when and how R. 3 or R. 2 should be applied, resorted to the amendments. The Andhra Pradesh High Court added the following Explanation to R. 2:—
“The mere presence in Court of a party or his counsel not duly instructed shall not be considered to be an appearance of the party within the meaning of this Rule”. (27.4.1961).
and added at the end of R. 3, the following Proviso:—
“Provided that in a case where there is default under this Rule, as well as, default of appearance under R. 2, the Code will proceed under R. 2”.
The Allahabad High Court amended R. 2 by adding the following:—
“Where the evidence or a substantial portion of the evidence, of any party has already been 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 agent or pleader, though engaged only for the purpose of making an application”.
and added in R. 3, a comma, after the first word ‘where’ and inserted thereafter the words “in a case to which R. 2 does not apply” to make the Rule read as follows:—
“Wherein 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….”
We shall presently see that the Allahabad amendment in R. 2 has almost been adopted in the 1976 Amendment to the said Rule by the Parliament and the Andhra Pradesh Proviso in R. 3 has formed the basis of the 1976 amendment by the Parliament in the said Rule. The controversy as to the application of R. 2 to a case in which R. 2 of O. 17 would apply or a case in which R. 3 would apply, however, has been so acute that one could find any number of cases decided by the Courts in support of one or the other view and when such a large number of cases in conflict were found creating confusion in the matter of administration of justice, the Allahabad High Court constituted a Full Bench of five Judges, which, however, disposed of the matter by a majority judgment of 3:2, holding as follows in M. Khalse v. Chiranji Lal (AIR 1976 Allahabad 290 (F.B)
“An analysis of R. 2 will show that it would be attracted to cases (i) which come up for hearing on a date which was fixed after adjournment of the suit on a previous day:
(ii) The parties or any one of them fail to appear on the date so fixed;
(iii) where the evidence or substantial portion of evidence of any party has already been recorded on a previous day and such party, if fails to appear on the day so fixed, a court can use its discretion to proceed with the case and may dispose of it on the merits treating that such party was present;
(iv) A party which is present and does not do anything else, will be treated as not having failed to appear; and
(v) A party represented in court by an agent or pleader, though engaged only for the purpose of making an application will also be deemed not to have failed to appear.
R. 2 substantially concerns itself when a party or any one of them fails to appear on the adjourned date. When both the parties or any one of them is absent on the adjourned date. R. 2 squarely will apply and R. 3 will be excluded. It follows, therefore, that when any party to a suit, to whom time had been granted, fails to produce its evidence or to produce its witnesses or fails to perform any other act necessary to the further progress of the suit for which time had been allowed, is absent on the adjourned date, R. 3 will not apply
The difficulty, however, arises when a party which is treated or deemed as present and does not do anything or engages a counsel for the purpose of making any application on the adjourned date — will its case fall out of the ambit of R. 2 and the Court will have no power to dispose of the suit in one of the modes directed in that behalf by O. 9? The amendment made by the Court is clear in one respect that the Court at its discretion can dispose of a suit if the party which is absent has already adduced its evidence wholly or substantially either in one of the modes allowed by O. 9 of C.P.C or can make any other order it thinks fit. In such a case R. 3 will not apply as it would be covered by R. 2.
If, however, a party is present but does not do anything, it cannot be said to have failed to appear, that is, it cannot be said to be absent on the adjourned date and it is a party to whom time had not been granted to do anything as envisaged by R. 3, its case then poses a problem. Since it is not absent and thus has not failed to appear, strictly speaking, the Court cannot proceed to dispose of the suit in one of the modes directed in that behalf by O. 9 or make such other order as the court thinks fit. Likewise, will be the case of the party which is represented by a counsel only to make an application, who then withdraws and does not do anything, else for the furtherance of the suit and which party has also not taken time to do any of the acts envisaged by R. 3.
The situation described above in the case of a party gives rise to a conundrum. Since the party is not absent and has not failed to appear, it can be said to fall out of R. 2, but at the same time R. 3, would not be attracted as it is not a party which had taken time to do any of the acts envisaged by R. 3. It is this situation which has defied solution and the situation calls for reconsideration and framing of clear and precise Rules since it is our amendments which have created the impasse. So long as R. 2 and 3 stand as they are, defectively though,
(1) R. 3 cannot be resorted to where the parties or any of them is absent even though on the previous date the hearing of the suit was adjourned for granting to both or to any one of them time to produce evidence or witnesses or perform any other act necessary to the further progress of the suit. Such a case would squarely be covered by R. 2, the parties or any one of them having failed to appear.
(2) R. 3 can only be resorted to when the party, to whom time was given to produce evidence or to cause attendance of the witnesses or to perform any other act necessary for further progress of the suit, is actually present on the adjourned date of hearing but fails to do any of the acts for which the time was granted. For this purpose the fictional presence envisaged by the Explanation to R. 2 is not to be taken into consideration. It is only the factual presence which is to be taken into account.
The Full Bench would recommend that the courts below in their anxiety to dispose of the suit should not readily proceed to decide the suit on the merits under R. 3, for, they have the discretion not to proceed to decide the suit forthwith under that Rule. It is only in exceptional cases that this can be done in order to penalise a really negligent or cantankerous party. I would leave the matter at that.
The author of the majority judgment in his detailed judgment, however, answered the question referred to the Full Bench, whether a case in which the defendant obtains an adjournment on the date of final hearing of the suit and fails to appear on the adjourned date would be covered by R. 2 of O. 17 of the Code of Civil Procedure and whether the Court has jurisdiction to pass an order under R. 3 or O. 17 of the Code of Civil Procedure, saying as follows:—
“The answer to the question…is that the mentioned case is covered by R. 2 of O. 17 and an application under O. 9, R. 13, will lie even if the Court professes to act under R. 3. Rule 3 applies only when a party is present or is deemed to be present and has defaulted in doing the acts mentioned in R. 3”.
The Court gave this answer in a case in which a civil judge had held that on a date fixed for final hearing, when defendants moved an application for adjournment on ground of illness and the prayer was allowed, but on the adjourned date, again another application was moved, which was rejected by the Court, and the counsel for defendants stated that he had no further instructions and was therefore, withdrawing from the case. The majority judgment of the Allahabad High Court has opined in 1976 what has squarely been stated by a Full Bench of our Court in a judgment reported in 1918 that, R. 2 applies to all cases of absence of parties and R. 3 in cases of failure to do what was ordered and, the correct rule is to treat R. 3 as applying 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 done what they were directed to do. The consistent view, however, of the Madhya Pradesh High Court is expressed in a Full Bench consisting of five Judges in the case of Rama Rao v. Shanthibai (AIR 1977 M.P 222), which is not different from the view expressed by this Court in its judgment of the year 1918. It has said as follows:—
“The plain and unambiguous language of the two provisions, the deliberate departure made in the phraseology of the two Rules, the undisputed need to construe R. 3 strictly, the consequences which necessarily follow as a result of the construction made and the heading of the two Rules, are factors which lead us without any hesitation to the conclusion that R. 2 applies to all cases of default in appearance of all or any of the parties with the result that R. 3 does not apply to any of those cases. This conclusion also enables the defaulting party to have the order made under O. 9, C.P.C set aside in the manner provided for that purpose in the Code by showing that there was valid reason for default in appearance on the date fixed. This is done in the manner prescribed by the Code. We, also think that the expression, ‘such other order as it thinks fit’ used in R. 2 permits disposal of the suit and not a decision thereof on merits contemplated by R. 3 in a mode other than that provided in O. 9, example by an order of adjournment. A contrary conclusion would result in several needless difficulties. In the first place, that would permit an order of the type contemplated by R. 3 even in the case of a default in appearance of any of the parties which is a construction not acceptable to us for the reasons already given. That apart, it would permit the making of an order contemplated by R. 3 within the ambit of R. 2 itself so that such a construction would render R. 3 superfluous. It is settled that unless it is unavoidable, a construction which renders a provision superfluous must be rejected. All these reasons impel us to take the view that the expression “or make such other order as it thinks fit” used in R. 2 does not include within its ambit, a decision falling within the ambit of R. 3. As for R. 3, it follows that this Rule presupposes the presence of all parties and then the failure of the party at whose instance and for whose benefit the hearing was adjourned on the previous date to perform the act necessary to the further progress of the suit. It is only to this class of cases that R. 3 applies and it has no application to cases falling within the ambit of R. 2. In our opinion, whenever such a question arises, it has first to be seen whether R. 2 applies to the facts of a case since on R. 2 being attracted, the operation of R. 3 would be automatically excluded. It is only when there is no default in appearance of all or any of the parties that the question of applying R. 3 would arise to the facts of a case, provided the requirements laid down in R. 3 are fulfilled”.
The Allahabad Judgment, however, had the advantage of the Allahabad High Court's amendment to the Rules. The Madhya Pradesh judgment, abovecited, has considered the amended Rule. We have the advantage of the 1976 Amendment to the two Rules. Before we proceed further we may extract the amended Rule in full;
Rule 2:— Procedure, if parties fail to appear on day fixed. 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 on one of the modes directed in that behalf by O. 9 or make such other orders as it thinks fit.
Explanation: Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.
Rule-3:— Court may proceed notwithstanding either party fails to produce evidence, etc. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may notwithstanding such default.
(a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is, absent, proceed under R. 2”.
The clear words, “if the parties are, or any of them is absent proceed under R. 2”, thus leave no manner of doubt that in all cases of the absence of the party, the order has to be passed under R. 2 and not under R. 3. The words in R. 2, “or make such other order as it thinks fit” do not mean that the Court may proceed to dispose of the suit in the absence of a party under R. 3. R. 3 is not attracted at all in the case of the absence of a party and thus “or make such other order as it thinks fit” must mean an order other than to proceed to dispose of the suit in one of the modes directed in that behalf by O. 9 of the Code but surely not to dispose of the suit on merits. “Such other order” maybe a further adjournment to enable the party, which is absent to appear or to regulate the proceedings in some other manner. There is some scope to take a View as taken by the Full Bench of the Allahabad High Court in the case of M.S Khalsa v. Chiranji Lal (AIR 1976 Allahabad 290) supra, for the reason of the language in the Explanation to R. 2, that there is a discretion to dispose of a suit in the absence of a party, on merits, which although will be an order under R. 2, will not be different from the disposal under R. 3. We, however, have no reason to think that the Courts shall not exercise constraint, respect the judicial Verdicts in this behalf and in this court all the binding precedents shall not be followed, in as much as the Allahabad Full Bench in M.S Khalsa v. Chiranji Lal (AIR 1976 Allahabad 290) supra, has said,
“the Courts below in their anxiety to dispose of the suit should not readily proceed to decide the suit on the merits under R. 3, for, they have the discretion not to proceed to decide the suit forthwith under that Rule. It is only in exceptional cases that this can be done in order to penalise a really negligent or cantankerous party'.
It is also relevant to take notice of the language in the Explanation that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear, that is, if a party's evidence is already on the record or substantial portion of the evidence of that party has already been taken and only a negligible part of the evidence is left out and such party has failed to appear, the Court may proceed with the case as if that party were present. If evidence of a party has not been taken at all and if some evidence has been taken, but substantial portion of the evidence of that party is yet to be taken and that party is absent, the Explanation shall not enable the Court to proceed with the case, in the absence of that party, but to proceed to dispose of the suit in one or the modes directed in that behalf by O. 9 or to make such other order, that is to say, adjourn again for another date or take such steps as would ensure the appearance of the parties and their evidence. In the instant case, since we have not intended to make a digest of the case law in our judgment, we have not referred to many judgments, including a judgment of a Bench of this Court in Dakshinamoorthi v. Ponnuswami (AIR 1949 Madras 78 = 61 L.W 63) a judgment of a learned single judge of this Court in C.P Corers v. Government of Pondicherry (1975 I M.L.J 155 = 87 L.W 66); a judgment of a learned single Judge of the High Court of Andhra Pradesh in the case of In re Ramineni Suryanarayana (AIR 1980 A.P 129) and a decision of a full Bench of the High Court of Bombay in the case of Basaligappas v. Shidramappa (AIR 1943 Bombay 321). which appear to take a contrary view; but the views expressed in these judgments obviously stand in conflict with the express language of the 1976 Amendment and consistent view of this Court on the subject, right from the Full Bench judgment in the case of Pichiamma v. Sreeramulu (AIR 1918 Madras 143(2) supra. When we come to the facts of this case, we have no hesitation in holding that the learned single judge has committed clear error of law in holding that the application under O. 9. R. 13, of the Code to set aside the decree in the suit passed in the absence of the party as well as its counsel is not maintainable. We hold that the impugned judgment, for the said reason, has to be set aside; and the application for setting aside the decree restored for hearing and disposal in accordance with law. It is obvious that any finding that no sufficient reasons were forthcoming and that absence was deliberate and wilful, has to come after such enquiry, as has been envisaged for the purpose under O. 9, R. 13 of Code of Civil Procedure and not without that, The observations in the impugned judgment in this behalf are obviously not correct.
2. In the result, the appeal is allowed; the impugned judgment is set aside and the case, that is to say, Application No. 26 of 1984 is restored and remitted to the trial court for disposal in accordance with law. On the facts of this case, there shall be no order as to costs.
RR/VCS