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Kesho Singh v. Om Prakash
Factual and Procedural Background
The plaintiff filed a suit for possession and damages. After the defendant filed a written statement and issues were framed, the trial court proceeded with the final hearing. The plaintiff’s evidence was completed, but the defendant failed to file papers despite being granted time. On August 18, 1967, the trial court rejected the defendant’s request for adjournment, closed the defendant’s evidence, and decreed the suit ex parte on the merits. [1]
The defendant applied under Order IX, Rule 13, C.P.C. to set aside the decree. The trial court rejected the application as not maintainable, and the lower appellate court dismissed the appeal, holding that the suit had been disposed of under Order XVII, Rule 2. The defendant then filed the present revision under Section 115 of the Code of Civil Procedure. The matter was referred to a larger Bench because of an apparent conflict in decisions. [2][1]
Legal Issues Presented
- Whether the trial court had disposed of the suit under Order XVII, Rule 3, or under the first or second part of Order XVII, Rule 2. [3][4][5]
- Whether the defendant’s application under Order IX, Rule 13, C.P.C. for setting aside the ex parte decree was maintainable. [4][5]
Arguments of the Parties
Plaintiff-Opposite Party’s Arguments
- The suit was argued to have been disposed of under Order XVII, Rule 3 because the defendant failed to file the papers within the time granted. [1][3]
- Alternatively, it was argued that the court’s Explanation to Order XVII, Rule 2 applied because the defendant’s counsel appeared to seek an adjournment, meaning that the defendant should not be treated as having failed to appear. [5]
Defendant-Applicant’s Position
- The defendant challenged the refusal to set aside the ex parte decree and sought relief under Order IX, Rule 13, C.P.C. [2][1]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mst. Jagge v. Manhaiya Lal, A.I.R 1957 All. 344 | For Order XVII, Rule 3 to apply, the court must proceed to decide the suit “forthwith”; it cannot fix another date before deciding the suit. [6][7] | The Court relied on this principle to conclude that the trial court’s fixing of August 18, 1967, rather than deciding the suit on July 27, 1967, prevented the proceeding from being treated as one under Order XVII, Rule 3. [3] |
| Dayalji Wasanji v. Kedarnath Onkarmal and Co., A.I.R 1953 Nagpur 222 | Order XVII, Rule 3 is penal in nature and must be strictly construed; “forthwith” requires decision on the same date and does not permit adjournment to another date. [8][9] | The Court applied this reasoning to reject the plaintiff’s contention that Order XVII, Rule 3 governed the decree. [3] |
Court's Reasoning and Analysis
The Court first rejected application of Order XVII, Rule 3. Although the defendant had failed to file the papers within the time allowed, the trial court did not decide the suit forthwith on July 27, 1967. Instead, it fixed August 18, 1967, for final hearing. The requirement of immediate disposal under Rule 3 was therefore not satisfied. [6][9][3]
The Court next considered the second part of Order XVII, Rule 2, which permits the court to proceed on the merits where the evidence, or a substantial portion of the evidence, of a party who fails to appear has already been recorded. Since the defendant had not led any evidence, that condition was absent. The decree could not therefore be treated as one made under the second part of Rule 2. [10][11][12][4]
The Court held that the trial court’s own characterization of its action was significant. The trial court had expressly proceeded ex parte and decided the suit on the assumption that the defendant had failed to appear. Accordingly, the decree was made under the first part of Order XVII, Rule 2, in the mode directed by Order IX, Rule 6(1)(a). [4][5]
The Court also held that the presence of counsel to seek an adjournment did not alter the legal character of the decree. The Explanation to Order XVII, Rule 2 did not determine whether the court had acted under the first or second part of the rule; that question depended on what the court purported to do. Because the court had proceeded ex parte, an application under Order IX, Rule 13 was maintainable. [13][5]
Holding and Implications
Revision allowed. The lower courts’ orders were set aside, the defendant’s application under Order IX, Rule 13 was allowed, and the ex parte decree was set aside. The trial court was directed to dispose of the suit afresh in accordance with law. [14][15]
The direct consequence was restoration of the suit for fresh adjudication. The opinion identifies no broader implications beyond this relief and sets no new precedent beyond applying the cited principles to the facts. [14]
Pathak, J.:— This is a defendant's revision application under Sec. 115 of the Code of Civil Procedure against an order of the court below refusing to set aside an ex parte decree.
2. A suit was filed by the plaintiff-opposite party for possession and damages. After the written statement had been filed by the defendant, issues were struck and proceedings for final hearing were taken by the trial court. The plaintiff led evidence and after his evidence was closed, the defendant filed an application for time to file certain papers. On May 17, 1967, the trial court allowed the application and granted time for the purpose. Subsequently however, another application was made by the defendant for further time to file the papers and on July 7, 1967, the trial court recorded an order declaring that the plaintiff's evidence had been closed and that time was granted to the defendant upto July 27, 1967, for filing the papers. However no papers were filed by the defendant by that date. The trial court then fixed August 18, 1967, for final hearing. On that date, all application was made by counsel for the defendant praying for adjournment of the case. The trial court rejected the application and recorded an order declaring that the defendant's evidence had closed. On the same elate the trial court decreed the suit ex parte on the merits. Thereafter on September 12, 1967, the defendant filed application under Order IX, Rule 13, C.P.C praying for setting aside the ex parte decree. The trial court rejected the application as not maintainable. An appeal by the defendant was dismissed by the lower appellate court on November 13, 1968. The lower appellate court held that although there was sufficient cause for the absence of the defendant on August 18, 1967, the application for setting aside the ex parte decree was not maintainable as the suit had been disposed of under Order XVII, Rule 2, C.P.C It is pertinent to point out that the plea of the plaintiff that the suit had been disposed of under Order XVII, Rule 3, was over ruled. The defendant then preferred the instant revision application. The case was listed before our brother J.S Trivedi, who having regard to the apparent conflict of decisions on the point in this Court has referred this case to a larger Bench. That is how this case now comes before us. A number of decisions have been cited before us, but it seems to us that having regard to the facts of the case the revision application can be disposed of shortly.
3. It is apparent that, so far as Rule 3 is concerned, although the defendant was given time to file the papers and no papers were filed by him by the date fixed for the purpose, the trial court did not proceed to decide the suit forthwith. The word “forthwith” contained in Rule 3 has been considered in Mst. Jagge v. Manhaiya Lal . A.I.R 1957 All. 344.. A Division Bench of this Court observed:
“Moreover, even if time had been granted to the defendant to do any such act, if the court wanted to take action under this provision of law (Under Order XVII, Rule 3), it should have proceeded to decide the suit forthwith. The court, in the present case, did not proceed to decide the suit forthwith.”
4. What had happened in that case was that the Court fixed another date in the suit and on that date proceeded to dispose it of. There is also the view taken by Madholkar, J. in Dayalji Wasanji v. Kedarnath Onkarmal and Co. . A.I.R 1953 Nagpur 222.. In that case the Court fixed June 29, 1950 for the defendants to file their written statement on that date when the defendants did not do so, it fixed another date in the case. The learned Judge pointed out:
“There is no doubt that time was given to the defendants to perform an act which was necessary for the further progress of the suit, i.e for filing the written statement, and that they failed to perform the act, therefore, on 29-6-1950 it would have been open to the learned Judge to proceed against them under Older XVII, Rule 3. As I understand this rule, a court proceeding under this provision must decide the suit forthwith i.e on the same date and it cannot adjourn the hearing of the suit to some other date and then purport to decide he suit under Order XVII, Rule 3. I say so because of the word “forthwith” occurring at the end of Rule 3 of Order XVII and in my opinion that word has be given its full meaning. The provisions of Rule 3 of Order XVII are penal ??? their nature and must therefore be construed strictly.”
5. Had the trial court in the present case proceeded to dispose of the suit on July 27, 1967, it might have been construed as an order under Order XVII, Rule 3. It did not do so. It fixed August 18, 1967 for final hearing. It did not, in the sense an which this Court and the Nagpur High Court have held, proceed to decide the case forthwith. We are of opinion that the contention of learned counsel for the plaintiff opposite-party that Order XVII, Rule 3 applies must be rejected.
6. The alternative submission of learned counsel is that the case falls for consideration under the second part of Order XVII, Rule 2. Order XVII, Rule 2, as amended by this Court, reads:
“When 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 IX or make such other order as it thinks fit.”
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.
7. 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.”
8. Now, from the facts already narrated, it is apparent that the defendant never led any evidence at all. Consequently, the situation contemplated by the second pare of Order XVII, Rule 2 did not arise. The situation would have arisen if the evidence of the defendant or a substantial portion of it had already been recorded. It is the evidence of the party failing to appear which is within the contemplation of that provision. In the present case, it was the defendant who failed to appear on the adjourned date; but no part of his evidence had been recorded. Consequently, the decree on the merits passed by the trial court cannot be considered as one passed in the exercise of the jurisdiction conferred by the second part of Order XVII, Rule 2. On the contrary, the decree passed by the trial court was a decree made ex parte on the merits. The defendant was treated as absent. The trial court expressly declared that the suit was decreed ex parte. The jurisdiction exercised was that contemplated by the first part of Order XVII, Rule 2 and the suit was disposed of in the mode directed by Order IX, Rule 6(1)(a).
9. It is urged by learned counsel for the plaintiff-opposite party that ii regard be had to the Explanation added by this Court in Order XVII, Rule 2 if cannot be said that the first part of that rule applies. The Explanation declares that no party shall be deemed to have failed to appear if he is either present or represented in court by agent or pleader, though engaged only for the purpose of making an application. In the present case, no doubt an application was made for adjournment of the case by counsel for the defendant, and therefore is the Explanation is attracted it must be held that the defendant did not fail to appear but was present. But whether the defendant was present or failed to appear does not determine if the court was acting under the first or the second part of Order XVII, Rule 2. What was the jurisdiction exercised by the court must be determined, we think by what the court purported to do. Plainly, the court considered that it was proceeding ex parte and disposed of the suit on the merits. The decree passed by it was not made on the basis that the defendant was present. It was passed on the assumption that he had failed to appear. It was not a decree contemplated by the second part of Order XVII, Rule 2. It was a decree made under the first part of Order XVII, Rule 2. The suit was disposed of in one of the modes directed by Order IX. The mode adopted was that provided by Order IX, Rule 6(1)(a). In this view of the matter, an application for setting aside the decree lay under Order IX, Rule 13. In our judgment, the finding of the lower appellate court to the contrary is erroneous. No other question has been raised before us.
10. As the trial court has held that there was sufficient cause under Order IX, Rule 13 for setting aside the ex parte decree but has dismissed the application only on the ground that it was not maintainable, and as we are of the view that the application was maintainable, the applicant is entitled to an order allowing his application under Order IX, Rule 13 and setting aside the ex parte decree. The revision application is allowed. The order of the courts below is set aside and the application under Order IX, Rule 13, C.P.C filed by the defendant applicant is allowed. In the result, the ex parte decree in the suit is set aside. The trial court will how dispose of the suit afresh in accordance with law.
11. Revision allowed.
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