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Andhra Pradesh High Court
Judges : A.GOPAL RAO
Marothu Suryarao - Appellant
Versus
Paluri Pediyya - Respondent
Decided On : 09-20-65
ORDER 9 RULE 13 C.P.C. - EX PARTE DECREE - ORDER 17 RULE 3 C.P.C. - APPLICABILITY - SUMMARY
Fact of the Case:
The petitioner filed an application for adjournment, which was rejected. He was set ex parte and the judgment was delivered after examining P.W. 1 in his absence. He filed an application under Order 9, Rule 13 C.P.C. to set aside the ex parte decree, which was dismissed by the trial court and the appellate court on the ground that the decree fell under Order 17, Rule 3 C.P.C.
Finding of the Court:
The High Court held that the decree did not fall under Order 17, Rule 3 C.P.C. as the petitioner was not present at the time when the actual proceedings went on and he was set ex parte. The court further held that an application under Order 9, Rule 13 C.P.C. was maintainable.
Issues: Whether the decree fell under Order 17, Rule 3 C.P.C.
Ratio Decidendi: The court held that in order to attract the provisions of Order 17, Rule 3 C.P.C., two things are necessary: (1) the party must be present, and (2) he must be guilty of any one of the three things mentioned in Rule 3 C.P.C. The court further held that mere physical presence of the party is not sufficient. Apart from being physically present, he must also be prepared to proceed with the further hearing of the case.
Final Decision: The court set aside the orders of both the courts below and remitted the case to the trial court for its disposal on merits in accordance with law after making proper enquiry.
( 1 ) THIS revision petition arises out of an application filed by the Second defendant (petitioner before me) under Order 9, R. 13 C. P. C.
( 2 ) THE facts material for the purpose of appreciating the contentions raised before me are that O. S. 193/1957 was posted for trial on 2-1-1960. The second defendant filed an application for adjournment on that date. Rejecting his petition, he was set ex parte. After completing the recording of the deposition of P. W. 1, the trial court proceeded to deliver the judgment. It is to set aside that decree that the petition was filed under Order 9, Rule 13 C. P. C. by the second defendant.
( 3 ) THIS petition was resisted by the plaintiff not only on merits but also on the ground that the decree passed on 2-1-1960 falls under Order 17, Rule 3 C. P. C. and as such no application under Order 9, Rule 13 C. P. C. lies.
( 4 ) THE trial court upholding the contention of the plaintiffs dismissed the petition. It held that the judgment and decree dated 2-1-1960 fell under Order Rule 3 C. P. C. and therefore, no application under Order 9, R. 13 C. P. C. was maintainable. It did not decide the application on merits.
( 5 ) DISSATISFIED with that order, the second defendant carried the matter in appeal. The learned Subordinate Judge, Kakinada dismissing the appeal agreed with the conclusion of the trial court that the judgment of the 2/01/1960, fell under Order 17, Rule 3 C. P. C. and as such, no application under Order 9, Rule 13 C. P. C. was maintainable. The appellate court also found that the application for adjournment was rightly rejected and consequently observed that there are no grounds to set aside the exparte decree. It is this view of the learned Subordinate Judge that is now assailed in this revision petition.
( 6 ) THE principal contention of Sri K. B. Krishnamurti the learned counsel for the petitioner, is that when the petitioner was not present after his application for adjournment was refused and when he was set ex parte and when the judgment was given after examining P. W. 1 behind the back of the petitioner, such a judgment cannot fall under Order 17, R. 3 C. P. C. that it is a judgment given under Order 17, R. 2 C. P. C. , and that the petitioner was right in filing an application under Order 9, Rule 13 C. P. C.
( 7 ) IT is, however, contended by Sri N. Bapiraju, the learned counsel for the respondents that once the petitioner, who was present, applied for an adjournment, after refusal of which he left the court, to such a case it is O. 17, R. 3 C. P. C. that applies and that no application under order 9, Rule 13 C. P. C. is maintainable.
( 8 ) THERE cannot be any doubt that in order to attract the provisions of Order 17, Rule 3 C. P. C. two things are necessary. Firstly, the party must be present and secondly, he must be guilty of any one of the three things mentioned in R. 3 C. P. C. It is now beyond doubt that the mere presence in court of a party or his counsel not duly instructed cannot be considered as an appearance of the party within the meaning of R. 3 C. P. C. It is also now clear that if the application falls both under Rule 2 and Rule 3 C. P. C. , the judgment will be treated as falling under R. 2 for the purpose of the remedy.
( 9 ) VIEWED in this background, I have no hesitation to hold that when a party, applies for seeking an adjournment, on the refusal of which he absents himself and is, therefore, set ex parte, and does not participate in further proceedings which went before the Court that day resulting in a decree, such a decree cannot be said to be falling under Order 17, Rule 3 C. P. C. To attract Rule 3 C. P. C. , the party must be present at the time when actual proceedings go on. If before the commencement of the proceedings his request for an adjournment was refused and, he absents thereafter, his position cannot be in any way worst than the position of a person who absents himself from the very beginning. Suppose in this case instead
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