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High Court Of Calcutta
A. K. SEN, PRABIR KUMAR MAJUMDAR
BRAITHWAITE, BURN AND JESSOP CONSTRUCTION CO.LTD. - Appellant
Versus
ABDUL GAFOOR - Respondent
F. M. A. 443 Of 1981
Decided On : 06/06/1985
ORDER 9 RULE 13 - SETTING ASIDE EXPARTE DECREE - ORDER 17 RULE 2 AND 3 - EXPARTE DECREE - INTERPRETATION - EFFECT OF 1976 AMENDMENT - COURT'S DISCRETION TO DISPOSE OF SUIT AS IF PARTIES HAD APPEARED - LIMITED TO CASES WHERE EVIDENCE OF DEFAULTING PARTY IS SUBSTANTIALLY OVER - NO DECISION ON MERITS UNLESS BOTH PARTIES PRESENT - ABSENT PARTY DEEMED PRESENT IF EVIDENCE OR SUBSTANTIAL PORTION ALREADY RECORDED - EXPLANATION TO RULE 2 OVERRIDES VIEW THAT RULES ARE MUTUALLY EXCLUSIVE - AMENDMENT TO RULE 3 CLARIFIES THAT EVEN IN CASE OF DEFAULT WITHIN MEANING OF RULE 3, NO DECISION ON MERITS UNLESS BOTH PARTIES PRESENT - COURT TO FALL BACK UPON RULE 2 IN ABSENCE OF BOTH OR EITHER PARTY - RULE 2 AUTHORIZES COURT TO DISPOSE OF SUIT IN ONE OF THE MODES DIRECTED BY ORDER 9 OR MAKE SUCH OTHER ORDER AS IT THINKS FIT - EXPLANATION TO RULE 2 GUIDES WHAT WOULD BE SUCH OTHER ORDER - ABSENT PARTY NOT TREATED AS ABSENT BUT DEEMED PRESENT IF EVIDENCE OR SUBSTANTIAL PORTION ALREADY RECORDED - AMENDMENT OVERRIDES CASES HOLDING THAT COURT MUST DISMISS SUIT IF PLAINTIFF ABSENT OR DECREE SAME EXPARTE IF DEFENDANT ABSENT - RULE 3 NOW CLARIFIES THAT IN ABSENCE OF PARTIES OR EITHER OF THEM, COURT TO PROCEED UNDER RULE 2 - AMENDED SCHEME OF RULE 2 IS THAT COURT WILL PROCEED TO DISPOSE OF SUIT TREATING THAT PARTY TO BE PRESENT WHO HAS EARLIER ADDUCED OWN EVIDENCE OR SUBSTANTIAL PART THEREOF - EXPLANATION DOES NOT AUTHORIZE COURT TO DISPOSE OF SUIT ON MERITS AGAINST BOTH IN SENSE THAT BOTH WOULD FORFEIT RIGHT TO ANY POSSIBLE REMEDY UNDER ORDER 9.
Fact of the Case:
Defendant appealed an order dismissing an application to set aside an ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure. The suit was filed in 1961 and came up for hearing in 1978. The defendant did not appear on the adjourned date, and the court proceeded to hear the plaintiff's evidence and deliver judgment in the plaintiff's favor. The defendant argued that the decree was ex parte and should be set aside under Order 9 Rule 13.
Finding of the Court:
The court held that the 1976 amendment to Order 17 Rules 2 and 3 of the Code of Civil Procedure clarified that even in case of default within the meaning of Rule 3, there can be no decision on merits unless both parties are present. The court found that the explanation to Rule 2 overrides the view that the two Rules are mutually exclusive and that the amendment to Rule 3 makes it clear that in the absence of the parties or either of them, the court is required to proceed under Rule 2. The court held that the trial court erred in dismissing the defendant's application under Order 9 Rule 13 and remanded the application for re-hearing on its merits.
Issues: Whether the ex parte decree was properly set aside under Order 9 Rule 13 of the Code of Civil Procedure.
Ratio Decidendi: The court held that the 1976 amendment to Order 17 Rules 2 and 3 of the Code of Civil Procedure clarified that even in case of default within the meaning of Rule 3, there can be no decision on merits unless both parties are present. The court found that the explanation to Rule 2 overrides the view that the two Rules are mutually exclusive and that the amendment to Rule 3 makes it clear that in the absence of the parties or either of them, the court is required to proceed under Rule 2. The court held that the trial court erred in dismissing the defendant's application under Order 9 Rule 13 and remanded the application for re-hearing on its merits.
Final Decision: The court allowed the appeal, set aside the order impugned, and remanded back the application for re-hearing on its merits.
( 1 ) THIS appeal from an original order is by the defendant. The order impugned is one dated April 11, 1981, passed by the learned Subordinate Judge, Asansol, dismissing an appeal under Order 9 Rule 13 of the Code of Civil Procedure which was registered as Misc. Case No. 225 of 1980. It was so dismissed not on merits but on the ground that such an application is not maintainable. It will be necessary to refer to the facts which may be set out shortly as follows :
( 2 ) THE respondent Abdul Gafur instituted Money Suit No. 18 of 1961 in the Court of the learned Subordinate Judge for recovery of a sum of Rs. 56,237. 69 alleged to be the balance dues of the plaintiff for the works done for the defendant company. Though filed in the year 1961, the suit came up for peremptory hearing for the first time on March 28,1978, when one of ther plaintiffs witnesses being examined in part, the suit was adjourned till May 8, 1978. On the adjourned date, the suit was again adjourned in the absence of the presiding officer and the hearing was resumed on October 25, 1979, when the witness earlier examined in part was examined and cross-examined. After that the suit was adjourned to October 28, 1979, for further evidence. On that adjourned date, on the defendant's prayer the suit was adjourned till November 15,1979. On November 15, 1979, on the defendant's prayer again, the suit was adjourned till November 20, 1979.
( 3 ) ON November 20, 1979, the lawyer for the defendant informed the Court that he had no instructions. The defendant did not appear. The plaintiff appeared and examined another witness. On the evidence being closed, the learned Judge heard the argument on behalf of the plaintiff and on November 26,1979, the judgment was delivered decreeing the plaintiffs suit for the amount claimed. In that background that defendant filed an application under Order 9, Rule 13 of the Code on August 26, 1980, and by the impugned order, the learned Subordinate Judge dismissed the said application as not maintainable only on the ground that the suit having been disposed of on its merits and not under O. 9 of the Code of Civil Procedure, the defendant had no remedy under O. 9, R. 13 of the Code. In the admitted facts, the learned Subordinate Judge has relied upon the judgment of a learned single Judge of this Court in the case of Lalit Chandra Das v. Sushil Chandra Guha, AIR 1980 Cal 148, which substantially supports the view taken by the learned Subordinate Judge.
( 4 ) IN this appeal, Mr. Roychowdhury appearing on behalf of the appellant has strongly contended that in the admitted facts though the suit was decreed on the plaintiffs evidence it was so decreed ex parte against the defendant and must be deemed to have been so done under O. 9, R. 6 of the Code, so that the remedy for the defendant is under O. 9, R. 13 of the Code. The point thus urged by Mr. Roychowdhury has been strongly controverted by Mr. Ali who naturally places strong reliance on the aforesaid decision of this Court and the other decisions of this Court referred to therein.
( 5 ) THE point thus raised is a point of law and the decision on the point is dependent upon interpretation of Rr. 2 and 3 of O. 17 of the Code. These two provisions have undergone material change by the amendment of 1976. Order 17, Rule 2 as amended reads as follows :-"2. Where 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 O. 9 or make such other order as it thinks fit. Explanation- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present. "similarly, R. 3 on amendment reads as follows : -"3. Where any party to a suit to whom time has b
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