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Laxmi Chand v. Ishwar Din
Case Summary — Roy, J. (Civil Revision under Sec. 25 of the Small Cause Courts Act)
Factual and Procedural Background
The revision arises from a civil suit instituted in July 1951 in the Court of Small Causes for recovery of Rs. 670/-. The suit had a protracted history and was fixed for final hearing on 20 September 1954. On that date, defendant no. 1 (Laxmi Chand) moved for an adjournment on the ground that his counsel was ill; the case was adjourned to 8 November 1954. The court, considering the matter an old case and the adjourned date far off, suo motu changed the final hearing date to 11 October 1954 by an order dated 23 September 1954; that order was communicated to counsel for both parties and acknowledged (signed) by counsel or their clerks.
On 11 October 1954, defendant no. 1 was absent and his counsel stated he had no instructions. The trial court then proceeded to examine the plaintiff's witnesses and decided the suit on merits under Order XVII, Rule 3, C.P.C., and decreed recovery of Rs. 670/- with costs. No revision was taken from that decree. On 29 October 1954 defendant no. 1 applied under Order IX, Rule 13 (for setting aside the decree); that application was dismissed by the trial court on 4 December 1954 with the terse order: "The suit was decided on merits and so no application under Order IX, Rule 13 is maintainable. Application is rejected."
The present revisional petition challenges the dismissal of the Order IX, Rule 13 application and seeks relief under Sec. 25 of the Small Cause Courts Act. The revision was referred to a Division Bench for consideration.
Legal Issues Presented
- Whether, when a court has proceeded to decide a suit on merits under Order XVII, Rule 3 C.P.C., an application by the defendant under Order IX, Rule 13 C.P.C. for setting aside the decree is maintainable.
- Whether the trial court, having purported to act under Order XVII, Rule 3, had jurisdiction to entertain and grant relief under Order IX, Rule 13 in respect of the decree it had passed.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pitamber Prasad v. Sohan Lal — 1956 A.L.J. 827 | Referenced as the basis for referring the revision to a Division Bench. | The revision was referred to a Division Bench on account of this decision (referential procedural effect). |
| Sri Krishen v. Radha Kishan — 1950 A.L.J. 799 | Holding that when a party obtains an adjournment for final hearing and then fails to appear on the adjourned final date, the court may proceed under Order XVII, Rule 3 to decide the suit on merits (even if plaintiff absent). | Relied upon to support the proposition that the present case fell within Order XVII, Rule 3 and that the court had jurisdiction to decide on merits when defendant failed to appear after obtaining adjournment. |
| Nasir Khan v. Itwari — 21 A.L.J.R. 667 | Explained that where a court dismisses or decides an appeal/suit on merits for failure to appear, the right of appeal lies against that actual order and the appellate court must decide whether the order was proper and within jurisdiction. | Relied on to show that an order actually made as a decision on merits permits appellate scrutiny; used to illuminate competence and remedies where a lower court acted under the relevant provision. |
| Muhammad v. Manavi Krama — I.L.R. 45 Mad. 882 | Madras decision relied upon in Nasir Khan regarding the legal consequence of what the court actually did (i.e., effect of a decision on merits made in absence). | Referenced through Nasir Khan to support the line of authority about appellate rights and the legal effect of a court's actual order. |
| Faiyaz Khan v. Mithan — 1953 A.L.J. 653 | Held that if the court actually granted a decree under Order XVII, Rule 3, an application under Order IX, Rule 13 will not lie and the defendant's remedy is by appeal or review; the judge who decided under Rule 3 has no jurisdiction under Order IX, Rule 13 to set aside the decree he has passed. | Applied to support the conclusion that Order IX, Rule 13 was not available to set aside a decree when the court had acted under Order XVII, Rule 3; the present restoration application was therefore not maintainable. |
| Qudrutullah v. Mohammad Kasim Khan | Held that when the court had ample material and proceeded to decide the case, it should have proceeded under Rule 2 (ex parte) and a defendant could get an opportunity to explain absence via Order IX, Rule 13; the court below was wrong to think it had no jurisdiction to consider the application. | Distinguished: the Court noted this contrary view but treated the preponderance of authority as favouring the position that where a decree is actually made under Order XVII, Rule 3, Order IX, Rule 13 will not lie; Qudrutullah was acknowledged but not followed in the present context. |
Court's Reasoning and Analysis
The Court undertook a stepwise analysis based strictly on the record and precedent:
- Identification of facts relevant to the procedural question: defendant had obtained an earlier adjournment to obtain counsel but on the rescheduled (brought forward) final hearing date the defendant was absent and his counsel stated he had no instructions. The court inferred defendant had not engaged instructed counsel and thus had failed to perform the act (obtaining instructed counsel) for which time had been allowed.
- Legal characterization: the Bench held that the facts placed the case within the scope of Order XVII, Rule 3 as amended — that is, where a party to whom time has been granted fails to perform an act necessary for the further progress of the suit, the court may, notwithstanding the default, proceed to examine the evidence and decide the suit on merits.
- Precedential support: the Court reviewed earlier rulings of this Court (Sri Krishen; Nasir Khan; Faiyaz Khan) to embody the principle that when a court actually decides a suit under Order XVII, Rule 3, the proper remedies for the aggrieved party lie by way of appeal or review rather than an application under Order IX, Rule 13 to set aside the decree. It relied particularly on decisions that held a judge who purported to act under Rule 3 has no jurisdiction under Rule 13 to set aside the decree he passed.
- Consideration of contrary authority: the Court acknowledged Qudrutullah, where a Bench held the lower court ought to have treated the decision as ex parte under Rule 2 and thus had jurisdiction to consider a Rule 13 application. The Court observed that Qudrutullah appeared to be influenced by equitable considerations and gave an opportunity to the absent party to place materials before the court.
- Weighing of authorities and application to present facts: the Court found a "preponderance of opinion" of this Court in favour of the view that where an order is actually made under Order XVII, Rule 3 in circumstances attracting Rule 3 (and not covered by Rule 2), an application under Order IX, Rule 13 will not lie. Applying that settled view to the present facts, the Court concluded Order IX, Rule 13 was inapplicable and the trial court had properly rejected the restoration application.
The Court therefore confined its reasoning to jurisdictional and remedial consequences flowing from the trial court's invocation of Order XVII, Rule 3 and did not disturb the trial court's factual findings that justified proceeding to decide the suit on merits.
Holding and Implications
Holding: The revisional petition was dismissed. The Court held that the trial court had jurisdiction to proceed under Order XVII, Rule 3 and, having purported to decide the suit under that provision, an application under Order IX, Rule 13 was not maintainable. The opinion concludes: Revision dismissed.
Immediate consequences: the decree of the trial court for Rs. 670/- with costs stands, the defendant's application under Order IX, Rule 13 having been rightly rejected, and the revision under Sec. 25 of the Small Cause Courts Act fails and is dismissed with costs.
Broader implications: the Court applied and reaffirmed the view, supported by a preponderance of earlier decisions of this Court, that where a court actually passes a decree under Order XVII, Rule 3, the proper remedy for the aggrieved party is by appeal or review rather than by an application under Order IX, Rule 13; the judgment operates as an application of existing precedents rather than the creation of a novel principle in this opinion.
Roy, J.:— This is a civil revision under Sec. 25 of the Small Cause Courts Act by Laxmi Chand who was defendant no. 1 in the Court below. The revision came up before a learned single Judge of this Court who, on account of the decision in Pitamber Prasad v. Sohan Lal 1956 A.L.J 827. has referred it to a Division Bench.
2. The facts may be briefly stated. In July, 1951, the suit was instituted in the court of Small Causes for recovery of a sum of Rs. 670/-. It had a chequered history. Ultimately the case was fixed for hearing on the 20th of September, 1954. On that date upon a motion of defendant no. 1, on the ground that his counsel was ill and was therefore not in a position to conduct the case on his behalf, the case was adjourned to the 8th of November, 1954. Before that date was reached, the court found that the date fixed was far-off date and the case was an old one. The court therefore altered the date suo motu to the 11th of October, 1954, by order dated the 23rd of September, 1954. This order was communicated to counsel for both parties and was either signed by them or by their clerks. On the 11th of October, 1954, when the case was called on for hearing, defendant no. 1 was found absent and his counsel stated that he had no instruction. The Court therefore proceeded to examine the witnesses of the plaintiff and to decide the suit on merits under the provisions of Order XVII, Rule 3, C.P.C The court specifically stated:—
“This case was fixed for hearing on 20-9-1954 when on the motion of the defendant no. 1 it was adjourned to 8-11-1954. Then on 23-9-1954 the court ordered that as the case was very old it shall come for final hearing on 11-10-1954 instead of 8-11-1954 and this order was duly communicated to all the parties including the defendant no. 1. Today the defendant no. 1 has absented himself. It may also be noted that on 27-7-1954 the case was adjourned on the motion of defendant no. 1 subject vo payment of Rs. 10/- as adjournment costs and the defendant no. 1 has defendant to pay the costs. In the circumstances I have proceeded under Order XVII, Rule 3, C.P.C and the case is being decided on merits against defendant no. 1 also.
3. After making that observation, the court upon the evidence that was produced by the parties decreed the suit for Rs. 670/- with costs.
4. No revision was preferred by defendant no. 1 against that order. On the 29th of October, 1954, the defendant no. 1 made an application under Order IX, Rule 13 of the Code for the setting aside of the decree aforesaid. The application was dismissed by the court on the 4th of December, 1954, by the following order:—
“The suit was decided on merits and so no application under Order IX, Rule 13 is maintainable. Application is rejected.”
5. It is against this order that the present revisional petition has been made.
6. After hearing learned counsel for the parties we are of opinion that the case clearly fell within the purview of Order XVII, Rule 3 of the Code of Civil Procedure as amended by this Court. It was a case where a party to a suit to whom time had been granted, failed to perform an act necessary to the further progress of the suit for which time had been allowed to him and the court therefore, notwithstanding such default, proceeded to decide the suit on merits after taking the evidence of the plaintiff. It may be mentioned that on the 11th of October, the counsel who had entered appearance on behalf of defendant no. 1 had stated that he had no instructions. It is obvious that even on that date that defendant no. 1 did not engage a counsel who had been instructed by him to defend the suit on his behalf. He evidently failed to carry out the purpose for which the adjournment had been taken by him, namely, to have a counsel present to conduct the case on his behalf.
7. The scope of Order XVII, Rules 2 and 3 of the Code has been considered by this Court in a number of cases. In Sri Krishen v. Radha Kishan 1950 A.L.J 799. it was held that when a party asks for an adjournment of a case which has been fixed for final hearing and the court fixes another date again for final hearing, the implication is that the party who obtain the adjournment obtain it for the purpose of taking steps necessary for the prosecution of the suit, to perform necessary acts for the further progress of the suit, and if he fails to appear on the adjourned date, the court has jurisdiction to pass an order under the provisions of Order XVII, Rule 3 dismissing the case on merit on the ground that the claim of the plaintiff or applicant had not been proved; and that this order can be passed even though the plaintiff or the applicant is absent on the date of hearing.
8. As far back as 1923 a similar question came to be considered by this court in Nasir Khan v. Itwari 21 A.L.J.R 667.. There on an application being made to execute a decree against the judgment-debtor, the latter objected that the application was time-barred. The trial court dismissed the objection. The objector appealed and on the date fixed for the hearing of the appeal, failed to put in an appearance, nor was he represented by a counsel. The judge thereupon dismissed the appeal on merits. The appellant came to this Court in second appeal and urged that under Order XLI, Rule 17 the learned District Judge should not have dismissed the appeal on merits, but should either have allowed an adjournment or should have dismissed it for default. A Bench of this Court, relying upon a Madras decision in Muhammad v. Manavi Krama I.L.R 45 Mad. 882. held that the right of appeal does not depend on what the court ought to have done but on what it actually did; that what it actually did was to pass a decree on merits; that against such a decree the law allows an appeal; and that when the appeal comes up for decision, the appellate court has then to decide whether the order passed was proper order and one which the court below had jurisdiction, to pass; and that if it decides this question in the negative, it will set the order aside; and the respondent's reasoning would deprive the aggrieved party of the right of appeal just in those cases in which it is most needed.
9. The matter again came up for consideration before a Bench of this Court in Faiyaz Khan…Judgment-Debtor- v. Mithan, Decree-Holder…. 1953 A.L.J 653.. In that case the 29th of February, 1952, was fixed by the Civil Judge for the hearing of a suit. On that date counsel for the defendant applied for an adjournment as the defendant was not present and the hearing was adjourned to the 14th of March. On the adjourned date the defendant was absent and his counsel stated that he had no instructions, whereupon counsel for the plaintiff asked the court to proceed to decide the suit under Order XVII, Rule 3. The court purported to do so. It recorded the evidence of the plaintiff and two witnesses, delivered judgment in favour of the plaintiff and a decree was drawn up in accordance with the terms of the judgment. One month later, that is on the 14th of April, the defendant applied to the court for the decree to be set aside under Order IX, Rule 13. This application was dismissed by the learned Civil Judge in a brief order in which he said.
10. The application does not lie as the decision was on merits under Order 17, Rule 3, C.P.C
11. When an appeal was taken to this Court it was observed, relying upon the decision in Nasir Khan's6 case and also upon the decision in Sri Krishen v. Radha Kishen, cited above, that if the order granting the plaintiff a decree is actually made by the court under Order XVII, Rule 3, an application by the defendant under Order IX, Rule 13 will not lie and the defendant's remedy is by way of appeal or review; and that what has to be considered in such cases is the power vested in the judge who decided the suit; and if in so deciding it he purported to act under Order XVII, Rule 3, he could have no jurisdiction under Order IX, Rule 13 of the Code of Civil Procedure to set aside the decree which he had passed. It was further observed that his order may be wrong, but so long as it stands he has no power to alter it.
12. In the present case the court specifically mentioned that it was proceeding under Order XVII, Rule 3. The court had the jurisdiction to proceed as such. Obviously therefore Order IX, Rule 13 of the Code did not apply, especially when all the requirements of Rule 3 of Order 17 were there and the court chose to invoke those provisions in aid of the plaintiff.
13. Our attention has been drawn to another decision of this Court in Qudrutullah v. Mohammad Kasim Khan. There on the date the case was adjourned for further hearing the defendant had neither summoned his witnesses, nor was present in court. The judge, after hearing arguments and considering the material on the record, purported to decide the case on merit under Order XVII, Rule 3. He dismissed an application under Order IX, Rule 13 for setting aside the order, holding that he had no jurisdiction to set aside the order as the decree was not an ex parte decree. It was held by a Bench of this Court that the court was bound to proceed under Rule 2 and therefore the suit must be deemed to have been decided ex parte, when the defendant fails to appear on the date fixed and that the court was wrong in its view that it had no jurisdiction to consider the application. In this case it seems that it was more on equitable grounds that the case had been decided. It was observed:—
“On the whole, we consider it is more satisfactory, as a party, who did not appear, will in that case get an opportunity of placing meterials before the Court, setting out the reasons for his absence and his inability to appear. The Court, whenever it is not satisfied that there was sufficient reason for such absence, will no doubt properly deal with the application without being functus officio and unable to decide the question even if there was good ground for absence.”
14. After making that observation, the Bench was of opinion that the lower court was wrong in its view that it had no jurisdiction to consider the application and it accordingly allowed the appeal, set aside the order of the court below and sent the case back to that court to decide the application under Order IX, Rule 13 on merits. There is thus a preponderance of opinion of this Court in favour of the view that if the order granting the plaintiff a decree is actually made by the court under Order, XVII, Rule 3, in circumstances where Rule 3 may be attracted and not covered by Rule 2, an application by the defendant under Order IX, Rule 13 will not lie. What has to be considered in such cases is the power vested in the judge who decided the suit and if in so deciding it he purported to act under Order XVII, Rule 3, he could have no jurisdiction under Order IX, Rule 13 to set aside the decree which he had passed. His order may be wrong, but so long as it stands he has no power to alter it. In this view of the matter it seems to us that the restoration application had been rightly rejected. There is no force in this revision and it is dismissed with costs.
15. Revision dismissed.
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