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IN THE HIGH COURT OF BOMBAY
(B. A. Masodkar J.)
NAMDEO SAKHARAM MESHRAM
(Ori. Deft.)- Appellant.
v.
MOTILAL UDAICHAND JAIN (Ori. Pltff.) - Respondent.
Advocates Appeared
For appellant - A. M. Bapat.
For respondent - B. R. Mandlekar.
ORDER 17 RULE 3 - EX PARTE DECREE - INTERPRETATION - APPLICATION UNDER ORDER 9 RULE 13 - SUFFICIENCY OF CAUSE - PROCEDURE: 1. Order 17, Rule 3 of the Code of Civil Procedure (CPC) is an enabling provision that empowers the court to proceed to decide a suit forthwith, notwithstanding the failure of a party to produce evidence, attend witnesses, or perform any other necessary act for the further progress of the suit. 2. Rule 3 is distinct from Rule 2 of Order 17, which deals with the consequences of a party's non-appearance. Rule 2 enables the court to proceed ex parte against a party who fails to appear, either in person or through a counsel, on the date fixed for hearing. 3. The scope of Rule 3 is limited to cases where the court has material before it to enable it to proceed to a decision. It does not apply to cases where there is no material on record, in which case the appropriate procedure is to follow Rule 2. 4. Where a party is absent and is not represented by a duly instructed counsel, the proceedings against that party become ex parte. 5. An application under Order 9, Rule 13, seeking relief from an ex parte decree can be filed if the applicant can establish sufficient cause for the failure to appear.
Fact of the Case:
The plaintiff filed a special civil suit seeking specific relief based on an agreement to sell agricultural land. The defendant's counsel sought an adjournment on the date fixed for evidence, which was granted. On the adjourned date, the counsel reported "no instructions" and withdrew from the case. The court proceeded to decide the suit ex parte and made a decree on 27-2-1973.
Finding of the Court:
The court held that the disposal of the suit on 27-2-1973 was under Order 17, Rule 2, and not Rule 3, as the defendant was neither present nor represented by a counsel on that date. The court further held that the defendant was entitled to file an application under Order 9, Rule 13, seeking relief by establishing sufficient cause.
Issues: 1. Whether the disposal of the suit on 27-2-1973 was under Order 17, Rule 2 or Rule 3? 2. Whether the defendant was entitled to file an application under Order 9, Rule 13, seeking relief from the ex parte decree?
Ratio Decidendi: 1. The court interpreted Order 17, Rule 3 as an enabling provision that empowers the court to proceed to decide a suit forthwith, notwithstanding the failure of a party to produce evidence, attend witnesses, or perform any other necessary act for the further progress of the suit. 2. The court distinguished Rule 3 from Rule 2, which deals with the consequences of a party's non-appearance, and held that Rule 3 is limited to cases where the court has material before it to enable it to proceed to a decision. 3. The court held that the defendant was absent and was not represented by a duly instructed counsel, and therefore the proceedings against him became ex parte. 4. The court held that the defendant was entitled to file an application under Order 9, Rule 13, seeking relief from the ex parte decree if he could establish sufficient cause for the failure to appear.
Final Decision: The appeal was allowed, the order dismissing the defendant's application under Order 9, Rule 13 was set aside, and the matter was remitted back for hearing the parties and affording them all opportunity of leading evidence to show whether the applicant makes out a sufficient cause to set aside the ex parte decree.
2. Some facts are not in dispute. The said special Civil suit was filed seeking specific relief on the basis of agreement to sell agricultural land. The 6th of January 1973 was the date fixed for evidence and thereafter the hearing of the suit was adjourned to 22nd January and then to 1st February, on which date plaintiff entered the witness-box and examine himself in chief. An application was filed on behalf of the defendant by the counsel seeking time for cross-examination. That was allowed and the case was posted for February 21, 1973. The counsel informed the defendant about this adjournment by a registered notice of February 10, 1973. By that notice the defendant was informed that in case he did not appear, the counsel would report “no instructions". In the present application itself the allegations were made, which are Dot as yet enquired into, that defendant Was ill from 19th of February and, therefore, could not attend the Court on 21st He had, however, instructed the counsel to seek an adjournment, but those instructions could not reach the counsel. Eventually on 21·2-1973 the counsel of the defendant passed a pursis before the Court stating that he had no instructions. The matter was not immediately disposed of, but, it appears, the Court proceeded to fix 27-2-1973 and made an ex parte decree on that date.
3. In the application itself filed by the defendant in Misc. Judicial Case No. 20 of 1973, all these allegations appear to have been made. The learned Judge has taken the view that the disposal of the suit on 27-2-1973 was under Order 17, rule 3, and, therefore, 1 he application itself was not tenable.
4. Now the only question that falls for consideration in the present appeal is whether the disposal of the suit on 27-2-1973 was under Order 17, rule 2, or rule 3, of the Code. Some debate has been raised before me as to the exact scope of the two provisions by referring to the authorities which will be noticed a little later. But as far as the present controversey is concerned, it is enough to observe that on 27-2-1973, the defendant was neither himself nor by his pleader present. The disposal of the suit was not on 21-2-1973 but was on 27-2-73. Therefore, when the suit was decided on 27-2-73, it was in the absence of the defendant and that clearly answered Order 17, rule 2, and not Order 17, rule 3, as has been- found by the learned Judge. What is the effect of earlier withdrawal of the counsel on the earlier date on this decision only remains to be considered.
5. In the scheme of the Code, Order 17 is an Order dealing with adjournments, while Order 9 deals with appearance of parties and consequence of non-appearance. Order 5 requires as far as the defendants are concerned to be summoned. While Order 3 permits the parties to be represented by others, i.e. recognized agents or pleaders. Hearing of the suit and examination of witnesses is the subject-matter of Order 18, while Order 20 directs that the Court after the case has been heard shall pronounce the judgment in open Court either at once or as soon thereafter as may be practicable on some future day and when the judgment is to be pronounced on some future day, the Court shall fix a day of which there shall be a notice to the parties or their pleaders (rule 1). Section 33 of the Code enjoins the Court after the case has been heard, to pronounce judgment and declares that on such judgment a decree has to follow. By the term "judgment" it is understood to mean, the statement given by the Judg
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