The main legal point established in the judgment is that the Trial Court had no jurisdiction to pass a decree on merits and should have disposed of the suit only in terms of Order XVII Rule 2, without the aid of the Explanation to the said sub rule.

(Civil Miscellaneous Appeal against the fair and decreetal order dated 2.12.2004 made in I.A. No: 341 of 2003 in O.S. No: 44 of 2002 on the file of the Additional Sub Judge, Pondicherry.)

R. Balasubramanian, J.

This appeal was admitted on 24.6.2005. Having regard to the controversy involved in the appeal we wanted to find out from Mr. T.P.Manoharan, learned counsel, who had entered caveat for the respondent, as to whether we can dispose of the appeal itself on merits after calling for the records. Mr. T.P. Manoharan, learned counsel appearing for the respondent, readily agreed. Therefore, we directed the office to call for the records on 24.6.2005 itself when the appeal was admitted. Heard the learned counsel on either side.

2. The defendant in O.S.No.44 of 2002 on the file of Additional Sub Judge, Pondicherry is the appellant in this appeal. In that suit he filed I.A.No.341 of 2003 under Order IX Rule 13 to have the decree dated 13.10.2003, which according to him had been passed ex parte, set aside. The learned Trial Judge dismissed that application on the ground that as the suit stands disposed of on merits, the application under Order IX Rule 13 of the Code of Civil Procedure is misconceived. Mr.R.Subramanian, learned counsel appearing for the appellant would submit that though the judgment of the Trial Court in the suit indicates that it is a decree on merits, yet, in Law, it cannot be so treated. Learned counsel would then submit that it is true that the Trial Court had the evidence in chief of P.Ws.1 to 5 and they are yet to be cross examined. Learned counsel would then add that the defendant had neither let in any oral evidence nor documentary evidence though he was given an opportunity. Therefore according to him, on a reading of Order XVII Rules 2 and 3 together, the Court has no other option except, on the facts available in this case as noted above, to decree the suit ex parte only and it has no option to decree the suit on merits. If that is accepted, then, the application filed under Order IX Rule 13 is maintainable. Learned counsel also relied upon a judgment of the Supreme Court reported in (2003)2 M.L.J 186 (S.C.) (JANAKIRAMAIAH CHETTY v. PARTHASARATHI) wherein the scope of Order XVII Rules 2 and 3 came up for consideration and analysis. On the contra, learned counsel appearing for the respondent would submit that if the explanation to Rule 2 of Order XVII is taken into account, then on the evidence in chief of P.Ws.1 to 5 available on record, the Court has a discretion to dispose of the suit as contemplated under Order XVII Rule 3 (a) of the Code of Civil Procedure.

3. Having regard to the submissions made by the learned counsel on either side, we went into the materials. The fact remains that P.Ws.1 to 5 have been examined in chief. It is seen from the order in challenge that since the defendant did not cross examine the witnesses, the plaintiff's side was closed and the suit stood adjourned for defence. Since even thereafter the defendant did not take part, the Decree came to be passed on 13.10.2003. This position is not controverted at all. On 13.10.2003 the defendant was absent. The defendant's lawyer was also absent. The learned Trial Judge, as contended by the learned counsel for the plaintiff, analysed the evidence in chief of P.Ws.1 to 5 coupled with the documentary evidence made available on the side of the plaintiff marked as Exs.A.1 to A.6 and decreed the suit on merits. The question is whether in the above stated circumstances and undisputed facts, can the Court proceed to dispose of the suit on merits or should it necessarily resort to the procedure contemplated under Order IX of the Code of Civil Procedure?

4. To resolve this issue, one has to necessarily read Order XVII Rules 2 and 3 of the Code of Civil Procedure, which we extract hereunder:-

"2. Procedure if parties fail to appear on day fixed:- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them