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IN THE HIGH COURT OF ORISSA
G.B. Pattnaik, J.
RADHIKA ENGINEERING INDUSTRIES - APPELLANT
Versus
HINDUSTAN AERONAUTICS LTD. - RESPONDENT
Miscellaneous Appeal No. 1 of 1989
Decided On : 14-04-1993
ORDER 17 RULE 2 AND 3 CPC - ORDER 9 CPC - APPLICABILITY - DISTINCTION - ORDER 17 RULE 3 - APPLICABILITY - CONDITIONS - ORDER 17 RULE 2 - APPLICABILITY - CONDITIONS - ORDER 9 RULE 13 CPC - APPLICABILITY - CONDITIONS - SUFFICIENT CAUSE FOR NON-APPEARANCE - ILLNESS - SUFFICIENT CAUSE.
Fact of the Case:
Defendant in Money Suit No. 7 of 1983 filed an appeal challenging the order of the Subordinate Judge rejecting its application under Order 9, Rule 13, Code of Civil Procedure (CPC). The suit was disposed of in the absence of the defendant, and the defendant claimed that the disposal was under Order 17, Rule 2 of the CPC, which is subject to the provisions of Order 9, allowing for setting aside the ex parte decree. The plaintiff argued that the disposal was under Order 17, Rule 3, which does not attract Order 9.
Finding of the Court:
The court held that the disposal of the suit was under Order 17, Rule 2, as the defendant had failed to appear at the hearing on the adjourned date. The court noted that Rule 2 applies where an adjournment has been generally granted and not for any special purpose, whereas Rule 3 applies where the adjournment has been given for one of the purposes mentioned in Rule 3. The court further held that the defendant's illness was a sufficient cause for its non-appearance on the date of hearing.
Issues: 1. Whether the disposal of the suit was under Order 17, Rule 2 or Rule 3 of the CPC? 2. Whether the defendant had sufficient cause for its non-appearance on the date of hearing?
Ratio Decidendi: 1. The court held that the disposal of the suit was under Order 17, Rule 2, as the defendant had failed to appear at the hearing on the adjourned date. The court noted that Rule 2 applies where an adjournment has been generally granted and not for any special purpose, whereas Rule 3 applies where the adjournment has been given for one of the purposes mentioned in Rule 3. 2. The court further held that the defendant's illness was a sufficient cause for its non-appearance on the date of hearing.
Final Decision: The court set aside the order of the Subordinate Judge rejecting the defendant's application under Order 9, Rule 13, CPC, and also set aside the ex parte decree passed in the suit, subject to the condition that the defendant pays costs of Rs. 2,000 to the plaintiff within four weeks. If the cost is paid within the stipulated period, the suit would be relegated to the stage as it was on the date of the adjourned hearing and the matter would proceed from that stage. If the cost is not paid within the stipulated period, the decree already passed will remain operative.
JUDGMENT :
G.B. Pattnaik, J. - The short question, that appeal for consideration in this appeal is whether disposal of the suit in the present case in the absence of the defendant is one under Rule 2 of Order 17 of the CPC so that the provisions of Order 9 of the Code will be attracted, or is one under Rule 3 of Order 17, so that Order 9 will have no application at all.
2. Defendant in Money Suit No. 7 of 1983 is the appellant. The plaintiff filed the suit for realisation of Rs. 86, 911. 14 alleging that though the defendant's tender was accepted and the defendant was required to supply the items of goods between 7-11-1978 and 1-5-1979, but it failed to supply the, goods as a result of which the plaintiff sustained the loss. The defendant in its written statement took the stand that time was not of the essence of the contract and, therefore, there has been no breach of contract by it. It was further averred that in August, 1979, the officers of the plaintiff received most of the items and the cancellatioh of the contract by the plaintiff unilaterally is illegal and invalid.
The suit was adjourned to 10-10-1985 for hearing. On 10-10-1985 the plaintiff filed some documents along with a memo as per the list and those documents were admitted into evidence on admission and hearing was adjourned to 11-10-19&5, On 11-10-1935, the defendant filed an application for amendment-. The said prayer for amendment was allowed by order dated 20-11-1985 and the suit was directed to be called on 19-12-1985 for framing of additional issues. Fresh issues were settled on 6-1-1986 and the hearing of the suit was adjourned to 31-1-1986, The suit was there- after adjourned on several occasions either on the application of the defendant or on the application of both and finally the suit was posted to 19-11-1986 for peremptory hearing. On 19-11-1986, the Advocate for the plaintiff filed hazira, but the advocate for the defendant filed a petition for adjournment of the hearing on the ground that the defendant is absent. The Subordinate Judge rejected the prayer for adjournment and directed the parties to get ready at once. Thereafter PW 1 was examined and his cross-examination was declined and large number of documents were exhibited and the plaintiff closed its case. The defendant's advocate did not proceed with the suit and did not adduce any evidence and, therefore, the hearing of the suit was closed and the suit was called for argument on 28-11-1986. On that date plaintiff's advocate had filed hazira and the Subordinate Judge heard the arguments and called the matter to 10-12-1986 for judgment. But as the judgment was not ready on 10-12-1986, the matter was called on 18-12-1986 and judgment was delivered on 18-12-1986.
On 19-12-1986, the defendant filed an application under Order 9, Rule 13, Code of Civil Procedure, which was registered as M.J.C. No. 117 of 1986 stating therein that the proprietor of the firm was suffering with enteric fever and was bed-ridden and was undergoing treatment in a Nursing Home at Hyderabad from 13-11-1986 on Account of which he could not be present on 19-11-1986 and thus he was prevented by sufficient cause from appearing wheri the suit was called on for hearing. The plaintiff filed an objection taking the stand that the application under Order 9, Rule 13, Code of Civil Procedure, is not maintainable. The learned Subordinate Judge came to hold that the suit having been posted for peremptory hearing to 19-11-1986 and the defendant though absent, its lawyer being present, he could have cross-examined PW 1, but he failed to do so and thereafter the Court proceeded to dispose of the suit under Order 17, Rule 3 of the CPC and consequently, the remedy of the aggrieved party is to file an appeal and an application under Order 9, Rule 13 of the Code is not maintainable. Being aggrieved by the aforesaid order of the Subordinate Judge dated 27-9-1988, the defendant has filed the present appeal.
3. Mr. Ramdas, the learned counsel for th
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