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HIGH COURT OF NAGPUR
R Kaushalendra Rao, Tambe
MOTILAL SURAJMAL JOSHI – Appellant
Versus
MOHAMAD SHAFI AND ANR – Respondent
Revision No. 767 of 1953
Decided on : 22-07-1955
APPEARANCE OF PARTY - COUNSEL'S APPEARANCE AND REQUEST FOR ADJOURNMENT - REFUSAL OF ADJOURNMENT - COUNSEL REPORTING "NO INSTRUCTIONS" - WHETHER CONSTITUTES FAILURE OF PARTY TO APPEAR - INTERPRETATION OF ORDER 17, RULE 2, CODE OF CIVIL PROCEDURE.
Fact of the Case:
The case involved a dispute between the Plaintiff and the Defendants, where the Plaintiff filed a suit for recovery of money. After framing issues, the Court adjourned the case for evidence of parties. On the adjourned date, the Plaintiff was present, but the Defendants were absent. Their counsel appeared and applied for an adjournment on the ground that one of the Defendants was ill. The Court rejected the application and proceeded ex parte, recording evidence and decreeing the claim with costs. Later, the Defendants filed an application for setting aside the ex parte decree, which was allowed by the trial court.
Finding of the Court:
The High Court held that the counsel's appearance and request for an adjournment, followed by a report of "no instructions" upon refusal of the adjournment, did not constitute an appearance of the Defendants as such. The Court interpreted Order 17, Rule 2 of the Code of Civil Procedure, which deals with the consequences of a party's failure to appear, and concluded that the Defendants had failed to appear on the adjourned date.
Issues: 1. Whether the counsel's appearance and request for an adjournment, followed by a report of "no instructions" upon refusal of the adjournment, constituted an appearance of the Defendants as such? 2. Whether the Defendants had failed to appear on the adjourned date within the meaning of Order 17, Rule 2 of the Code of Civil Procedure?
Ratio Decidendi: The Court relied on the provisions of Order 3, Rule 1 and Order 5, Rule 1 of the Code of Civil Procedure, which define the modes of appearance by a party and a Defendant, respectively. It held that the counsel's appearance alone, without instructions to account for the default committed by the Defendants, did not amount to the presence of the party. The Court also considered the weight of authority in favor of the view that such circumstances constitute an ex parte proceeding against the Defendant.
Final Decision: The High Court answered the question posed in the affirmative, holding that when a counsel for the Defendant appears and requests an adjournment, and upon refusal of the same reports "no instructions," there is no appearance of the Defendant as such, and further proceedings against the Defendant are ex parte.
R Kaushalendra Rao, J—This revision is against the order of the Additional Civil Judge (Class II), Achaipur, setting aside an ex parte decree under Order 9 Rule 13, Code of Civil Procedure.
2. The facts leading to the ex part decree may briefly be stated. The applicant-Plaintiff tiled a suit for recovery of Rs. 2,300/- from, the Defendants. After framing issues, the Court fixed the case for 3-12-1952. On that date the Court amended the issues and added some more issues.
The Defendants counsel stated that he was not ready with evidence on the issues as they stood amended that day. So the case was "adjourned for evidence of parties" to 19-1-1953 with the observation that it would serve no useful purpose to record piecemeal evidence.
On 19-1-1953 the Plaintiff was present. The Defendants counsel appeared and applied for an adjournment on the ground that one of the Defendants was ill. A medical certificate was filed along with the application. The Court observed that the other Defendant could have come to conduct the case and rejected the application for adjournment.
The Defendants counsel then reported "no instructions''. The Court ordered, "I proceed 'ex parte' as the Defendants are not present." The Plaintiff's counsel stated the case and examined one witness. Then the Court wrote out the judgment upon the various issues in the case and decreed the claim with costs.
Later, there was an application on 18-2-1953 for setting aside the ex parte decree. The Court held that there was (SIC) cause for the absence of the Defendants, and set aside the ex parte decree subject to the payment of costs by the Defendants.
3. In this revision it is contended for the applicant that the remedy of the Defendants was to go in appeal against the ex parte decree and was not to proceed under Order 9 Rule 13, Code of Civil Procedure. The learned Counsel for the applicant contends that the order of the Court on 19-1-1953 was not, one under Order' 17, Rule 2, Code of Civil Pprocedure. but fell under Order 17 Rule 3 thereof. The learned Counsel places reliance upon Sitalprasad Kalka y. Sukya, 1948 AIR(Nag) 310.
4. endants either to enable them to produce their evidence or to cause the attendance of their witnesses or to perform any other act necessary to the further progress of the suit.
True, the Defendants were not ready with the evidence on the issues as they stood amended that day, But the Court itself did not think it useful, to record evidence that day. So, the Court adjourned the case for evident to the next hearing. The adjournment is therefore one under Order 15, Rule 3.
Where the Court itself adjourns the case for, production of evidence by the parties quite generally without reference to anything in particular to be done by any one of the parties to the action, the adjournment does not bring into operation Order 17, Rule 3, Code of Civil Procedure. See ' Bhoorilal Vi Kanhaiyalal, 1933 AIR(Nag) 234 at pp. 235-236. , ' Rukmana Rajansa v. Shankargouda Basangouda, 1941 AIR(Bom) 83 at pp. 84-83 ;- Enatulla v. Jiban Mohan, 1914 AIR(Cal) 360at p. 361 ; - "Ryall v. Sherman' ; and " Venkatappa v. Ramkrishnappa, 1917 AIR(Mad) 106 at p. 197.
5. Rule 3 contemplates a case where the parties are present but have committed a default in some way which impedes the progress of the suit. See ' Bhioraj Jethmal v. Janardhan Nagorao, 1933 AIR(Nag) 370 at p. 372 (G) The Court in the instant case proceed ex parte holding that the Defendants were not present.
But the learned Counsel for the applicant contends that as the Defendants were present through their counsel. The Court could not have proceeded under Order 17 Rule 2 and the order must be construed as one really under Order 17. Rule 3. The learned Counsel found his contention on the observation of Padhye J. in Sitalprasad Kalka y. Sukya, 1948 AIR(Nag) 310 (supra, p. 311.: In the present case the counsel for the Plaintiff did appear on the adjourned date of hearing and applied for an adjournment. It was when his req
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