Bhutan Ram v. Madan Lal

1. This is a revision under Section 25 of the Provincial Small Cause Courts Act. The facts may he stated as follows: The plaintiff, who is the opposite party in this revision, filed a suit in the Court of Judge Small Causes, Gorakhpur, for recovery of a sum of Rs. 70 on account of the price of cement supplied by him to the defendant, who is the applicant before me. 31st March 1944, was fixed for the final disposal of the suit. On that date, an application was made by the defendant for time to file his written statement. This application was granted and the case was adjourned to 2nd June, 1944 on which date although the plaintiff was present, the defendant, who had not filed his written statement, was absent. The learned Judge examined one witness on behalf of the plaintiff and decreed the suit. The operative portion of the judgment runs as follows: “The suit to recover Rs. 70 is decreed with costs against the defendant ex parte.” On 5th July, 1944, the defendant filed an application purporting to be under O. 9, R. 13 of the CPC. This application came on for hearing on 22nd August, 1944, and the learned Small Cause Court Judge, without going into the merits of the application, dismissed the same upon the ground that it was not maintainable, as the suit had been decided under O. 17, R. 3 of the CPC. From that order the defendant has preferred this revision.

2. Learned counsel for the applicant contends that the suit was not decided under O. 17, R. 3 of the CPC, and that it was decided ex parte under O. 9, R. 6 of that Code and, therefore, an application under O. 9, R. 13 was maintainable. On the other hand, counsel for the opposite party argues that time had been granted to the defendant to file written statement, which was necessary to the further progress of the suit, and therefore the date, on which the suit was decided, was an adjourned hearing. The result, according to learned counsel, was that the terms of O. 17, R. 3 were satisfied and the only decree which the Court could pass on that date was one upon the merits under O. 17, R. 3. In order to appreciate the rival contentions of learned counsel appearing for the parties in this case, it is necessary to note that while O. 17, R. 2 mentions that it is open to the Court, on an adjourned hearing, to pass an order under O. 9; O. 17, R. 3 merely says that the Court may proceed to decide the suit on the merits and does not, as an alternative, mention that it may pass an order under O. 9. The omission of reference to O. 9, in O. 17, R. 3 is significant and leads to an inference that if the conditions mentioned in O. 17, R. 3 are satisfied, the application of O. 9 is precluded and the only order which the Court can pass is one under O. 17, R. 3.

3. I now proceed to examine the rulings relied upon by learned counsel for the parties in this case. Strong reliance is placed by learned counsel for the defendant upon the ruling in [Bhajan Singh v. Prem Narain] 1936 A.L.J 12741. In that case, on the first date of hearing, the suit was adjourned at the instance of both the parties. It appears that the reason for adjournment was that there was a prospect of compromise. On the adjourned date, a list of witnesses signed by the defendant's counsel was filed in Court even before the case was called on for hearing, but at the time when it was called on, the plaintiff, his witnesses and his pleader were present. Thereupon the Court recorded the evidence produced on behalf of the plaintiff and decreed the suit, professedly, under O. 17, R. 3. On that very day, an application for setting aside the decree was made by the defendant and the learned Judge, without going into the merits of the application, rejected the same upon the sole ground that the decree having been passed under O. 17, R. 3, such an application did not lie. In these circumstances, Sulaiman, C.J and Collister, J. came to the conclusion that, in the case before them, although the decree was one necessarily on the merits, the proceedings against the defendant being ex parte, the decree passed against him would also be ex parte within the meaning of O. 9, R. 13 of the CPC. After holding that the mere filing of a list of witnesses did not amount to an appearance on behalf of the defendant, the Bench reached the conclusion that the decree passed against the defendant was without doubt ex parte and he was entitled as of right to show cause for his non-appearance under O. 9, R. 13. The facts of that case are distinguishable from the facts in the present case. A request by the parties for adjournment of the case on the ground that there is a prospect of a compromise, is not one of the acts mentioned in O. 17, R. 3. In that case, it could not be said that time had been granted to the parties or to anyone of them to perform any of the acts necessary for the progress of the suit.

4. Learned counsel for the applicant urges that a prayer for time to file a written statement would also not be covered by the terms of O. 17, R. 3 and the filing of a written statement does not amount “to the performance of any act necessary to the further progress of the suit” within the meaning of O. 17, R. 8. Having regard to the authorities which I shall quote hereafter, I am not prepared to accede to this contention. In my judgment, granting of time by the Court to file a written statement is covered by the provisions of O. 17, R. 3. On behalf of the plaintiff my attention has been invited to the ruling in [Sheo Pujan Kalwar v. Bishnath Kalwar] 1939 A.L.J 6272. In that case, the defendant appeared on the date fixed for the final decision and applied for an adjournment in order to file a written statement. This prayer was allowed and, on the adjourned date, the defendant did not appear and the suit was decreed ex parte against him. Thereupon, an application for restoration was made and disposed of. The question, whether such an application was maintainable was mooted in this Court. Collister, J. who decided that case read O. 17, R. 3 to mean that the only discretion, which was conferred upon the Court in a case where the conditions mentioned in O. 17, R. 3 were satisfied, was either to decide the case on that date or not, but if it did decide the suit, the decision was bound to be on the merits. Collister, J. was of the view that the adjournment was granted for one of the particular objects contemplated by R. 3, and that although the decree was ex parte in the sense that it was passed in the absence of the defendant, appearance on behalf of the defendant had to be assumed whether he was, in fact, present or not. The absence of any mention of O. 9, in O. 17, R. 3 was also noticed and it was held that the application for restoration under O. 9, R. 13, did not lie. This ruling appears to be on all fours with the facts of the present case and I respectfully follow it. It is worthy of note that O. 17, R. 3 expressly lays down that the Court may proceed to decide the suit on the merits, whether the party in default is present or not.

5. The next ruling to which reference has been made by learned counsel for the plaintiff is that in [Narain Das v. Madan-Mohan] (1939) A.L.J 3713. In that case, the suit was adjourned on a joint application made by both the parties in order to enable them to have sufficient time to summon and produce witnesses.

6. On the adjourned hearing, the plaintiff was absent and his counsel stated that he had no instructions to proceed with the case. Thereupon the Court recorded such evidence as was produced by the defendants and dismissed the suit under O. 17, R. 3. It was held that O. 17, R. 3 was applicable. Reference was made before the Bench, which decided this case in the High Court, to ruling in (1936) A.L.J 1274 and referred to above, and the Bench distinguished it upon the ground that the real point that arose for decision in that case was whether the filing of a list of witnesses on behalf of the defendant before the case had been called on for hearing did or did not amount to an appearance on behalf of the defendant within the meaning of O. 17, R. 2. Learned counsel for the plaintiff also referred me to the case in [Raja Singh v. Manna Singh], A.I.R 1940 ALL. 2174. In that case, on the date fixed for final hearing, the plaintiff appeared but neither the defendants nor their counsel appeared and after the recording of evidence produced by the plaintiff, the suit was decreed. On the facts of the case, it was held that it could not be said that the defendants had failed to take any step for which time had been allowed and, therefore, O. 17, R. 3 did not come into play. This ruling is not of any assistance in the decision of the point in controversy before me. The case in (1939) A.L.J 627 mentioned by me above was referred to before the Bench which decided the case in A.I.R 1940 ALL. 217 and the learned Judges did not dissent from the decision in (1939) A.L.J 627 and distinguished the same from the case before them.

7. On the whole matter, I have arrived at the conclusion that the decree passed by the learned Small Cause Court Judge on 2-6-1944 was one under O. 17, R. 8 of the CPC. To such a decree, in my opinion, O. 9, R. 18 could not apply and the application for setting aside the decree under that rule was rightly dismissed by the learned Small Cause Court Judge. For the reasons indicated above, I dismiss this revision but in the circumstances of the case, I order the parties to bear their own costs in this Court.

G.M/D.H

8. Revision dismissed.