The applicability of Order 9, Rule 13, Order 17, Rule 2, and Order 17, Rule 3 of the CPC in cases involving ex parte decrees and the distinction between patent and latent non-appearance.

JUDGMENT :

A. Pasayat, J. - Petitioners call in question legality of or Jar passed by learned Subordinate Judge, Puri, refusing to accept petitioners' prayer to set aside ex parte decree passed in O.S. No. 25 of 1988 and order passed by learned District Judge, Puri, in Misc. Appeal No. 153 of 1993 affirming the aforesaid order.

2. A brief reference to the factual position, which is almost undisputed, is necessary for disposal of this application. Opposite party filed the suit in question for specific performance of contract. Petitioners were impleaded as defendants. A joint written statement was filed by them. On 19-1-1990 issues were settled and suit was posted to 28-3 1990 for fixing date of hearing. Thereafter the matter was adjourned from time to. time and was finally posted for hearing to 20-4-1992. On that day, memorandum of appearance was the plaintiff -oppsite party who was present with witnesses. They were examined and certain documents were marked as exhibits. Advocate for the petitioners was present, PW 1 was cross-examined, but thereafter there was no cross-examination of PWs 2 and 3. Learned Subordinate Judge treated the same to have been declined as petitioners' Advocate though present did not participate. It was also concluded that defendant - petitioners did not intend to adduce any evidence. The matter was accordingly closed and on 28-4-1992 judgment was delivered showing that the suit was disposed of on contest. On 8-5-1992 petitioners filed MJC No. 102 of 1992 purporteldy under Order 9, Rule. 13 of the Code of Civil Procedure, 1908 (in short 'Code') to set aside the judgment and decree dated 28-4-1992. The opposite party contested the prayer and challenged maintainability of the case. Learned Subordinate Judge held that the matter is covered under Order 17, Rule 2, of the Code, and therefore, application to set aside the decree in - terms of Order 9, Rule 13 of the Code was not maintainable, The conclusion was affirmed by learned District Judge, Puri.

3. Miss. D. Mohapatra, learned counsel for petitioners submits that Courts below proceeded on erroneous premises about applicability of Order 17, Rule 3 and non-applicability of Order 9, Rule 13 of the Code. According to her, this is a case covered under Explanation to Rule 2 of Order 17. Alternatively it is pleaded that a junior counsel who was assisting the main counsel in the suit was present. No memorandum of appearance of the defendants was filed. Junior counsel had moved for adjournment which was declined and, therefore, left with no other option, she put a formal question in cross-examination to PW 1. She also expressed her inability to cross-examine the other witnesses, i. e. PWs 2 and 3, in the absence of the senior counsel. This was treated to be denial to cross-examine by learned Subordinate Judge. There was no appearance in the strict sense of the terms, and therefore, provisions of Order 9, Rule 13 are squarely applicable. Learned counsel for the opposite party, on the other hand, contended that Order 9, Rule 13 comes into operation when the matter is decided - exparte. Since the suit itself was treated to have been disposed of on contest, there is no scope for application of Order 9, Rule 13, and conclusions of the Courts below are irreversible.

4. At this juncture it is relevant to refer to various Rules of Orders 9 and 17. Rule 1 of Order 17. deals with power of the Court-to grant time and adjourn hearing. Rule 2 deals with procedure in a case where parties fail to appear on a day fixed. It provides that on a day to which the hearing of the suit is adjourned, if the parties or any one of them fails, to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit. Rule 3 of Order 9 deals with the situation when neither party appears. It is provided therein that when neither party appears when the suit is called on for hearing the Court may order that the suit be