1. The case has had a chequered career.

2. The first defendant in O.S No. 278 of 1982 on the file of the District Munsif of Villupuram is the appellant in the second appeal. The first respondent herein filed the suit for declaration of title and possession on the following averments:

The suit properties originally belonged to one Lakshmi Ammal. Her daughter-in-law was one Govindammal. Her brother was Gurusamy and Gurusamy's son one Jagadev was married to one Dhanammal the first respondent was their daughter. Lakshmiammal executed a registered settlement deed under Ex.A-1 on 29.12.1959 giving the properties to her daughter-in-law Govindammal to be enjoyed by her during her life time without powers of alienation and the grandchildren of Gurusamy were to take the suit properties absolutely after the life time of Govindammal. Govindammal sold away the suit first item to the appellant on 10.1.1974 and bequeathed the second item to one Mannangatti Gounder, who in his turn sold that item to the second defendant in the suit one Ananthakrishnan. The first respondent was the sole surviving grandson of Lakshmiammal's brother Gurusamy. As per the settlement deed the suit items were vested with the first respondent on the death of Govindammal two years prior to the suit. However, the appellant taking advantage of the sale deed, has not only taken possession of the first item, but also trespassed in the suit third item. The second defendant Ananthakrishnan had been in possession of the suit second item. The first respondent was entitled to recover possession of the suit properties with mesne profits. A notice was issued on 4.7.1978 evoking a reply from the appellant on 22.7.1978 containing false allegations. The suit therefore came to be filed.

3. The second respondent herein Ranganathan Gounder, was impleaded as the third defendant in the suit on the ground that he was in possession of the third item of the suit property. One Mannangatti was made the fourth defendant in the suit on the ground that the second defendant who claimed to have purchased the property from Mannangatti, contended that the sale by Mannangatti in his favour had not come into effect and that Mannangatti continued to be in possession. The third and the fourth defendants did not file any written statement and remained ex parte.

4. The appellant resisted the suit by filing a written statement contending inter alia that he purchased suit first item for a valuable consideration of Rs. 6,500 from Govindammal and had been in possession till the date of the suit, that he purchased suit third item about five years prior to the suit, that the alleged settlement deed was not true and that Lakshmiammal had no title. His further case was that the suit properties belonged to Govindammal and had been dealt with by her till the knowledge of all others and in any event, Lakshmiammal even if she had any title, the same had been lost by virtue of adverse possession by Govindammal. The appellant further disputed the marriage between Jagadev and Dhanammal and contended that Dhanammal was actually married to one Muthukrishnan, who was alive even on the date of the suit.

5. The second defendant Ananthakrishnan filed a written statement conceding that a decree could be passed as prayed for. However, he contended that one Mannangatti Gounder represented that he was the owner of the suit second item and agreed to sell the property to the second defendant and also received the amount by executing a sale deed on 24.2.1978 and within 15 days from the date of the sale deed dispute arose between the second defendant, the first respondent, and Mannangatti and the sale deed never came into effect. The suit property was in the possession of Mannangatti.

6. At the time of trial the defendants remained ex parte and an ex parte decree was passed against them and in favour of the plaintiff/first respondent. On appeal by the defendants, the suit was remanded for fresh disposal giving an opportunity to the defendants to contest the suit on merits. After remand the suit was taken up for trial on 4.11.1985 for the examination of the defendants and their witnesses. The case was adjourned to 25.11.1985 On that date the defendant's Counsel reported no instructions, with the result they were set ex parte. However, the trial court passed a judgment on merits observing that the plaintiff's witnesses were cross-examined by the defendants.

7. The present appellant and the third defendant Ranganathan Gounder filed appeal A.S No. 92 of 1986 before the Subordinate Judge's Court, Villupuram. It is seen from the judgment of the Sub ordinate Judge, Villupuram, that the Counsel for the appellants before the Sub Court argued only for remission of the suit once again to the trial court to give an opportunity to the defendants to examine their witnesses and themselves to prove their case. The Subordinate Judge having rejected the request on behalf of the defendants and dismissed the appeal, the present second appeal has been filed.

8. At the time of admission the following substantial questions of law were framed for decision in the second appeal:

(1) Whether the trial court is right in deciding the suit on merits?

(2) Whether the courts below failed to invoke Order 17, Rule 3(b) C.P.C and dispose of the suit in their discretion by Order 9 C.P.C?

(3) Whether the decision of the lower Appellate Court is vitiated in not framing the necessary points for determination in the appeal? and

(4) Whether the judgment of the lower Appellate Court is vitiated in not giving a finding on merits?

9. Mr. T. Dhanyakumar, learned Counsel for the appellant, submitted that the appellant should be afforded an opportunity to contest the case on merits by examining witnesses and marking documents. The learned Counsel submitted that the lower Appellate Court had rejected the request on behalf of the appellant merely on the ground that the appellant had been dragging on the proceedings and had not availed of the opportunity afforded to him previously by the Appellate Court. According to the learned Counsel the case ought not to have been decided on merits and the provisions of Order 17, Rule 2 alone should have been invoked and the decision on merits by the trial court as confirmed by the lower Appellate Court was erroneous. The learned Counsel also relied on the judgment of the Supreme Court in Prakash Chander Manchanda and another v. Janki Manchanda, (1986) 4 SCC 699 and submitted that when the defendant failed to appear before court and consequently no evidence could be recorded on behalf of the defendant till the day to which the suit was finally adjourned and defendant's case was closed by the court, the court ought to have proceeded under Rule 2 and not under Rule 3, Order 17 and consequently the court must proceed to dispose of the matter in any of the modes provided under Order 9.

10. What the lower Appellate Court has done in the instant case is to refuse any indulgence by the court to the appellant having regard to his conduct in dragging on the proceedings from 1978. By the strict letter of the Law perhaps the trial court ought not to have attempted to decide the case on merits, but then the appellant had been systematically thwarting any attempt to have a quietus given to the case and the trial court had no option other than to give a decision on merits. Witnesses on the side of the plaintiff had been cross-examined by the appellant's Counsel. The appellant was given an opportunity not once, but twice and he did not avail of the same, resulting in his suffering a decree, for which he has to thank himself. The court had shown sufficient indulgence and absolutely no case is made out on and behalf of the appellant for a reconsideration of the decision by the trial court or the lower Appellate Court.

11. The trial court chose to consider the oral and documentary evidence and in the absence of any evidence contrary on the side of the appellant, accepted the case of the first respondent and its decision in deciding the suit on merits cannot be taken exception to. Originally the matter was remitted to the trial court with a direction to give an opportunity to the appellant and the other defendants to examine witnesses. The matter was posted to 4.11.1985 and was adjourned to 25.11.1985 and in spite of the appellant and the other defendants having been given enough time, they did not appear and their Counsel reported no instructions. The trial Court chose to rely on a decision of this Court to the effect that even if the defendants had remained exparte, inasmuch as the plaintiff's witnesses had been cross-examined by the Counsel for the defendants, the court was well within its powers to decide the case on merits. Though the trial court has not referred to any citations, still it purported to apply the ratio of the decision of this Court and in my view, it had done the proper thing in the instant case.

12. In the case before the Supreme Court the plaintiff's side was over and the case was posted for the defendant's witnesses to be examined. However, on the date it was posted for the defendant's side to be examined, only the Counsel for the plaintiff was present, but no one was present for the defendant and the court passed the following order:

“The case was called, but none has appeared on behalf of the defendant and none present. The evidence of defendant closed. How to come up for arguments.

Even on the adjourned date none represented. The defendant's and the plaintiff's Counsel sought adjournment. For arguments the case was adjourned and on the adjourned date the plaintiff's Counsel concluded his argument, but none appeared for the defendant and the learned Judge dictated the judgment claimed that he came to know about the decree only when the plaintiff came to take possession and filed an application under Order 9, Rule 13 treating the decree as an ex parte decree. This application was dismissed by the trial court that the case was disposed of not in accordance with Order 17, Rule 2, But in accordance with Order 17, Rule 3 and therefore the application under Order 9, Rule 13 was not maintainable. The appellant/defendant filed an application for review and the same was dismissed by the trial court. The first appeal to the High Court was dismissed summarily in the matter went to the Supreme Court. The Supreme Court after on analysis of the provisions of Order 17, Rule 2 and Rule 3 of the Code of Civil Procedure, held that,

“the Order passed by the High Court and also the trial court rejecting the application of the appellant under Order 9 Rule 13 was not proper and directed the trial court to proceed to hear and dispose of the application under Order 9 Rule 13 Code of Civil Procedure in accordance with law.

It was held in the process of reasoning by the Supreme Court that,

“Order 17 Rule 3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of defendant was closed nobody appeared for the defendant and therefore it could not be disputed that the court when proceeded to dispose of the suit on merits had committed an error and this was also repeated in the review application.”

The High Court also dismissed the appeal. According to the Supreme Court, when the defendant was absent, Order 17, Rule 2 only permitted the court to proceed to dispose of the matter in any one of the Rules provided under Order 9 of the Code of Civil Procedure. The decision of the trial court in the instant case was passed on 27.11.1985 before the decision of the Supreme Court. But, still, I feel that the trial Court had really no option in the instant case because of the previous history. The matter had been remitted and the remittal was not utilised by the appellant and he persisted in not being present. The Counsel reported no instructions.

13. The learned District Munsif though stated that she was entitled to decide the case on merits, had only stated that the plaintiff's case had been established and in the absence of any evidence contra she had to uphold and accept the case of the plaintiff and decreed the suit. The appellant had no doubt filed an appeal, but what he has prayed for in the appeal was for a remand. The Appellate Court refused to consider the request on the ground that the appellant did not utilise the opportunity and no indulgence should be shown to the appellant by the court. The second appeal has been filed treating the decision of the Appellate Court as a decision on merits. Whether it is a decision on merits or whether it is an ex parte decree the question is whether the appellant is entitled to any indulgence. The suit is of the year 1978. It was filed on 1.8.1978 before the Sub Court, Tindivanam numbered as O.S No. 465 of 78, transferred to the District Munsif s Court, Villupuram, renumbered as O.S No. 278 of 81 and had been pending there till 1985, then pending before the Appellate Court till 1987 and in second appeal before this Court for 12 years and absolutely no case is made out for showing any indulgence.

14. One of the substantial questions of law raised is whether the judgment of the lower Appellate Court is vitiated is not giving a finding on merits. The contention of the learned Counsel for the appellant is that the trial court erred in deciding the case on merits instead of proceeding under Order 17 Rule 2 and Order 9 of the Code of Civil Procedure. The substantial question of law therefore does not arise for consideration. Even with regard to the non-framing of necessary points for determination in the appeal, the appellant cannot contend that the decision of the lower Appellate Court is vitiated on that account, because his grievance is that he had been afforded an opportunity by the trial court.

15. The learned counsel for the respondents relied on the judgment of the Karnataka High Court in N. Ravindra Devadigo v. Sebastian Britto, AIR 1989 Kar. 280. The Karnataka High Court has held that,

“where in a suit the defendant's counsel was present, but did not participate in the proceedings by cross-examining the plaintiff, the decree in the suit was not ex parte.”

The learned Judge observed that,

if the counsel had no instructions, he had only the choice to retire from the case, but he cannot plead want of instructions and still claim that on that account the defendant should be treated as absent and exparte.”

The High Court held that the defendant's application in that case under Order 9 Rule 13 for setting aside the decree as exparte was not maintainable.

16. The Karnataka High Court has referred to a judgment of the Supreme Court in Modula India v. Kamakshya Singh Deo, AIR 1989 SC 162. It has been held by the Supreme Court in that case that,

“even in a case where the court even if it strikes out the defence or the written statement, still it would be wrong for the court not to permit the defendant to contend and show if possible on plaintiff's evidence and materials as are on record … at the trial and also at the appeal stage that the plaintiff is not entitled to the decree prayed for though he would not be permitted either to cross-examine the plaintiff's witnesses when they give evidence or to call his own witnesses at the trial if its defence is struck out.”

No doubt, the case arose under a different set up and when the defence of the defendant had been struck off. But, still it was observed by the Supreme Court that it was open to the defendant to cross-examine the plaintiff's witnesses and attempt to demolish the case of the plaintiff without having to separately do his case by examining witnesses.

17. In the instant case, the appellant had cross-examined the witnesses on the side of the plaintiff and it could not be said that he did not have the necessary opportunity earlier to mark documents and examine witnesses. The opportunity had been lost by the appellant and at this Distance of time he cannot seek to have another opportunity and in my view, it will be a mockery of the judicial process. It can be safely held that what the lower Appellate Court had done was to treat the case as an ex parte decree and refuse to give an opportunity to the defendant to have the matter reopened on merits. I am clearly of the view that the appellant is not entitled to have the luxury of reopening the case all over again. It is not the case of the appellant that he did not have knowledge of what was happening in court. In the case of an ex parte decree being passed on the counsel reporting no instructions, no doubt, the Supreme Court has held recently in Malkiat Singh and another v. Joginder Singh and others, AIR 1998 SC 258 that,

“It is incumbent on the court in such cases to issue notice to the parties who were admittedly not present on that date when their Counsel reported no instructions in the court.”

In my view, the decision of the Supreme Court has no application to the facts of the present case. The Supreme Court found that in the interests of justice the appellants who were entitled to have another opportunity to proceed with their case from the stage when the Counsel reported no instructions and it was factually held by the Supreme Court that,

“the appellants could not in the facts and circumstances of that case, be said to be at fault and that they should not suffer.”

In coming to that conclusion the Supreme Court relied on its earlier decision in Tahil Ram Issardas Sadarangani v. Ramchand Issardas Sadaranjani, AIR 1993 SC 1182: 1993 (Supp.) 3 SCC 256 where the Advocate withdrew from the case when the petitioners were not present in court and there was nothing on record to show as to whether these petitioners had the notice of the hearing of the case on that day and in the interests of justice a fresh notice for actual date of hearing should have been issued, was the view of the Supreme Court. This is a case where the party was at fault. The reporting of no instructions was deliberate and if only it had been the first time there could have been any justification for invoking the principles of interests of justice, but not in a case where the party and the Counsel has acted deliberately and did not adduce evidence.

18. Consequently, all the substantial questions of law are answered against the appellant and the second appeal is dismissed. There will be no order as to costs. The stay petition C.M.P No. 8823 of 1989 is closed.