1997 Supreme(MP) 1165

IN THE HIGH COURT OF MADHYA PRADESH
S.C. PANDEY, J.
Rajee Enterprises (M/s.) – Appellant
Versus
State Bank of India – Respondent
Misc. Appeal No. 914 of 1995 (J)
Decided on : 04-03-1997

Headnote:(1) Civil Procedure Code, 1908 – O. 9 R. 13 and O. 17 R. 2 – none appeared for defendant – Court proceeded exparte and passed exparte decree – application under O. 9 R. 13 is maintainable.

       (2) Civil Procedure Code, 1908 – O. 43 R. 1 (d), O. 9 R. 13 and S. 96 – exparte decree – first appeal on merits pending – miscellaneous appeal under O. 43 (1) (d) not barred.

       (3) Civil Procedure Code, 1908 – O. 17 R. 2 and 3 – application for adjournment without appearance of party or counsel – does not amount to appearance in case – no provisions under R. 3 attracted – case falls under O. 17 R. 2 only.

        Short Note

       1. This appeal is directed against the order dated 21st September, 1995, passed by II Additional District Judge, Bhopal, in MJ.C. No. 9/94, whereby the trial Court has held that an application under Order 9 Rule 13 of the Code of Civil Procedure against the judgment and decree passed by the Court in C.S. No.39 – A/91 did not lie.

       2. The facts of this case are that on 5.11.93 the case was fixed for 11.3.94 for evidence of the parties. On 11.3.94 the Advocate of the respondent and the witnesses of the respondents were present in Court. However, the appellants did not appear and the Court, thereafter, called for the case, but the counsel for the appellants did not appear. After waiting upto 3 p.m., the Court ordered that the case shall proceed ex parte. Thereafter two witnesses of the respondent were examined and the case was closed by the respondent. On the same date, the Court heard the arguments and fixed the case for judgment. It appears that there was some application filed for adjournment by the junior to, the counsel for the appellants on the ground that his senior had gone to Berasia. The order sheet does not record the filing of the said application at any time upto 3 p.m. or even thereafter. It also appears that nobody appeared on, behalf of the appellants.

       3. Therefore, it is clear that the Court proceeded under Order 17 Rule 2 of the Code of Civil Procedure and recorded the evidence on behalf of the respondent. It appears that before the judgment was delivered on 17.3.94, there was an application made on behalf of the appellants under Order 9 Rule 7 of the Code of Civil Procedure, but that too was dismissed on the ground that after the case was closed for judgment, application under Order 9 Rule 7 of the Code of Civil Procedure does not lie. The case was then adjourned to 4.4.94. On 4.4.94 the judgment and decree was delivered.

       4. It is not disputed by the counsel for the appellant that after the delivery of the impugned judgment dated 21st September, 1995, the appellants had also filed a first appeal against the judgment and decree of the trial Court which was registered as First Appeal No. 364/95. It is also not disputed that this appeal is still pending.

       5. The learned counsel for the respondent argued that in view of the fact that the appellants have filed a first appeal against the ex parte judgment and decree of the trial Court dated 4.4.1994, this appeal cannot proceed and it is liable to be dismissed. It is contended that in view of the explanation to Order 9 Rule 13 of the CPC it has been mentioned that no two appeals can be proceeded simultaneously.

       6. The learned counsel for the respondent placed reliance on a decision of Supreme Court in the case of Rani Chaudhary v. Lt. Col. Suraj Jit Chaudhary, reported in (1982) 2 SCC 596. The language of explanation to Order 9 Rule 13 of the CPC is specific. It is applicable only when the first appeal filed against the original judgment and decree is disposed of on any ground other than the ground that it is withdrawn. In this particular case, the appeal is still pending. Therefore, the explanation aforesaid, in terms, does not apply. The view of the Supreme Court in Rani Choudhary's case, (1982) 2 SCC 596 (supra) also does not apply to the facts of this case for the simple reason that the first appeal filed against the ex parte decree was dismissed on the ground of limitation. The other case which has been relied upon by the counsel for the respondent is M/s. Mangilal Rungta, Calcutta v. Manganese Ore (India) Ltd., Nagpur, reported in AIR 1987 Bombay 87. In this particular case, an ex parte decree was passed and then an application under Order 9 Rule 13 of the CPC was dismissed. Thereafter a first regular appeal was filed against the original decree. It was sought to be contended that the grievance for proceeding ex parte cannot be made subject – matter in the first appeal because the order, rejecting the application u/O. 9 Rule 13 of the CPC has become final. The Bombay High Court did not allow the defendant to reopen the case, on the public policy of avoiding conflicting decisions on the same point.

       7. Here in this particular case, no such question arises because the first appeal is still pending and has not been disposed of on merits and, therefore, this Court can hear and decide the case in an appeal under Order 43 Rule 1 (d) of the Code of Civil Procedure.

       8. It is clear from the facts stated above that the Court proceeded ex parte because the appellants were neither present in the Court personally nor through their counsel. Mere filing of an application for adjournment without participating in the proceeding even for seeking an adjournment would not amount to an appearance within the meaning of Order 17 Rule 3 of the CPC. Therefore, the correct view is that the Court proceeded ex parte. The conclusion of this Court is supported by a Full Bench decision of this Court in the case of Ramarao and others v. Shantibai widow of Madhorao and others, reported in 1977 JLJ 147.

       9. In this case, it was pointed out that even in those cases where the counsel appeared and sought an adjournment on behalf of the party and did not participate in the proceeding any further that it will be deemed that the counsel had the instructions only to seek adjournment. In such a case, it will be held that there is no participation on the part of the counsel for the party. On the other hand, if, in case, the counsel appeared for seeking adjournment and when adjournment was refused, he came to argue the case or take part in the proceedings in any manner, then it will be held that the counsel appeared for the party. In such a situation, Order 17 Rule 2 of the CPC would not apply. Applying the same principle in this case it is clear that nobody appeared on behalf of the appellants on 11.3.94 in Court – below. Even if it be assumed that some application was filed on 11.3.94, there appears to be no appearance of the counsel for participating in the proceedings on 11.3.94. For this reason, it should be held that the Court – below proceeded under Order 17 Rule 2 of the Code of Civil Procedure. Therefore an application under Order 9 Rule 13 of the Code of Civil Procedure was maintainable.

       10. The result of the aforesaid discussion is that the impugned order dated 21st September, 1995, passed by IInd Additional District Judge. Bhopal in M.J.C. No. 9/94 is set aside and the case is remanded back to the trial Court for proceeding to decide the application under Order 9 Rule 13 of the Code of Civil Procedure in accordance with law.

       11. It is further pointed out by the counsel for the appellants that on 23.11.95 Rs. 50,000/ – were deposited by the appellants and had furnished solvent surety for the rest of the amount of the decree. In case, the respondent has withdrawn that amount, the appellants shall get the restitution thereof, provided, they succeed ultimately, in getting the ex parte decree set aside. No costs.