Back
High Court Of Madhya Pradesh
Shiv Dayal, C. J. , S. M. N. Raina, N. C. Dwivedi, J. S. Verma and U. N. Bhachawat, jj.
RAMA RAO - Appellant
Versus
SHANTIBAI - Respondents
Civil Revn. 975 Of 1973
Decided On : 09/24/1976
Per Full Bench (Raina, J. disagreeing) - If, when a suit is called on for hearing, a party's counsel appears and seeks adjournment but when the adjournment is refused he retires saying that he has no instructions, it will be no appearance of the party and Rle. 2 of Order 17 C.P.C. a lone would be attracted. However in such a case the defaulting party must show cause for non-appearance as well as for not fully instructing the counsel.
The same is the position if the counsel had sought adjournment because he was instructed by his client to ask for adjournment only, and not to proceed with the trial if adjournment be refused; or if the counsel feels a necessity to seek adjournment so that he may prepare himself, and on his own, seeks adjournment; or if the counsel appears merely to inform the Court that he has no instructions. In such circumstances Rule 2 of Order 17 applies and an application lies under Order 9, Rule 9.
Application under Order 9 also lies for setting aside the dismissal of a suit when (i) the plaintiff had not been asked to do something and he did not appear when the case was called for hearing, or, (ii) the plaintiff was asked to do something which he did not do, nor did he appear when the case was called for hearing, under these circumstances also Rule 2 of Order 17 alone will apply.
In case when exparte decree is passed under the following circumstances -
(a) When the defendant had not been asked to do something and he did not appear and the Court decided the suit on the basis of the existing material without or after taking further evidence on record ; or
(b) When the defendant had been asked to do something which he did not do, nor appeared when the case was called for hearing and (i) the Court decided the suit on the existing material without taking any furl her evidence for the plaintiff, or (ii) on the same day the Court took on record exparte evidence produced by the plaintiff, or (iii) on that date the trial Court adjourned the hearing for recording plaintiff's evidence exparte and on the next date, after recording plaintiffs exparte evidence, passed an exparte decree against the defendant.
Under these circumstances, only Rule 2, Order 17 applies, and the defendant can file an application for setting aside exparte decree under Rule 13, Order 9. 1960 JLJ SN 14, 1962 JLJ SN 169, 1972 JLJ 317 and 1976 JLJ 12 overruled. View expressed in para 20 (7) of 1971 JLJ 693 and contrary observations in 1972 JLJ 317 disapproved. 17 MPLC 8 and 30 NLR 94 approved. AIR 1964 Raj. 143 dissented from.
[Paras 23, 43, 44 & 53]
(2) Interpretation of statutes - heading of a section - limited use can be made for interpretation.
The heading of a provision can be used as an aid to construction even though its use is limited. AIR 1959 SC 960 followed. (1969) 3 All ER 1640 referred to, [Para 8]
(3) Interpretation of statutes-construction which renders another provision superfluous-should be avoided. [Para 9]
(4) Precedents - previous contrary view not noticed - decision is per incuriam-has no value as a precedent. [Para 12]
( 1 ) THE several questions referred for decision to this Bench require substantially answers to two questions, namely,-
(i) the comparative scope of Rules 2 and 3 of Order 17 of the Code of civil Procedure, and
(ii) the meaning of word 'appear' occurring in Rule 2, Order 17, C. P. C, to constitute appearance of a party at the hearing. The answers to these questions would provide in turn the answers to the several questions referred to us for decision. For this reason we shall proceed to first consider the two main questions already stated. This reference to a larger bench is apparently made by my Lord the Chief Justice on account of the fact that a recent decision in Shantabai v. Chokhe-lal, 1975 MPLJ 832 : (AIR 1976 madh Pra 21) (FB) by a Bench of three learned Judges takes the view that Rule 3 of Order 17 applies even in the absence of parties when ever since the year 1930, the authoritative view of this Court was to the contrary and the questions involved are of frequent occurrence in the subordinate Courts.
( 2 ) THE first question is with regard to the comparative scope of Rules 2 and 3 of order 17 which read as under:-
"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 fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. ( 3 ) COURT may proceed notwithstanding either party fails to produce evidence etc. :-- Where any party to a suit to whom time has been granted fails to produce his evidence, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default proceed to decide the suit forthwith. " (Underlining by us ). The importance of this question lies in the fact that the remedies available against the order depend on whether it is made under Rule 2 or Rule 3. There is not controversy that Rule 3 is comparatively a more stringent provision so that it must be construed strictly with a view to avoid enlargement of its scope beyond the limits fixed by the language used therein. In other words, the construction of these provisions should be such that where it is permissible to treat an order as falling within the ambit of rule 2, it must be taken as being outside the ambit of Rule 3 for the obvious reason that Rule 3 is a more stringent provision requiring a strict construction. The real controversy before us at the hearing based on conflicting views of different High Courts on the point is whether Rule 3 applies to a situation where "the parties or any of them fail to appear" or it is Rule 2 alone which would apply on account of the default in appearance. In our opinion, this is the crux of the matter providing answer to the first main question required to be decided by us.
3. Order 17 relates to adjournments at the stage of hearing of suit. Rule 1 empowers the Court to adjourn the hearing of the suit if sufficient cause is shown to its satisfaction. Rules 2 and 3 both apply to an adjourned date of hearing of the suit. To this extent, there is no difference in the two Rules and this is, in fact, the starting point for attracting either of these Rules. The real trouble arises as a result of what transpires in the Court on the adjorned date of hearing. On a plain construction of Rule 2, it is clear that if "the parties or any of them fail to appear" on such a date, Rule 2 is attracted which empowers the court "to dispose of the suit" in one of the modes specified. The modes available for disposal of the suit in such a situation are those provided in Order 9, C. P. C. or by making "such other order as it thinks fit". It is settled that Order 9 provides for all situations arising out of the non-appearance of all or any of the parties to the suit so that the Court has the option to adopt any of the modes provided in Orde
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
