(1) This revision petition arises out of an application filed by the Second defendant (petitioner before me) under Order 9, R. 13 C.P.C.
(2) The facts material for the purpose of appreciating the contentions raised before me are that O.S. 193/1957 was posted for trial on 2-1-1960. The second defendant filed an application for adjournment on that date. Rejecting his petition, he was set ex parte. After completing the recording of the deposition of P.W. 1, the trial court proceeded to deliver the judgment. It is to set aside that decree that the petition was filed under Order 9, Rule 13 C.P.C. by the second defendant.
(3) This petition was resisted by the plaintiff not only on merits but also on the ground that the decree passed on 2-1-1960 falls under Order 17, Rule 3 C.P.C. and as such no application under Order 9, Rule 13 C.P.C. lies.
(4) The trial court upholding the contention of the plaintiffs dismissed the petition. It held that the judgment and decree dated 2-1-1960 fell under Order 17, Rule 3 C.P.C. and therefore, no application under Order 9, R. 13 C.P.C. was maintainable. It did not decide the application on merits.
(5) Dissatisfied with that order, the second defendant carried the matter in appeal. The learned Subordinate Judge, Kakinada dismissing the appeal agreed with the conclusion of the trial court that the judgment of the 2nd January 1960, fell under Order 17, Rule 3 C.P.C. and as such, no application under Order 9, Rule 13 C.P.C. was maintainable. The appellate court also found that the application for adjournment was rightly rejected and consequently observed that there are no grounds to set aside the exparte decree. It is this view of the learned Subordinate Judge that is now assailed in this revision petition.
(6) The principal contention of Sri K.B. Krishnamurti the learned counsel for the petitioner, is that when the petitioner was not present after his application for adjournment was refused and when he was set ex parte and when the judgment was given after examining P.W. 1 behind the back of the petitioner, such a judgment cannot fall under Order 17, R. 3 C.P.C. that it is a judgment given under Order 17, R. 2 C.P.C., and that the petitioner was right in filing an application under Order 9, Rule 13 C.P.C.
(7) It is, however, contended by Sri N. Bapiraju, the learned counsel for the respondents that once the petitioner, who was present, applied for an adjournment, after refusal of which he left the court, to such a case it is O. 17, R. 3 C.P.C. that applies and that no application under order 9, Rule 13 C.P..C. is maintainable.
(8) There cannot be any doubt that in order to attract the provisions of Order 17, Rule 3 C.P.C. two things are necessary. Firstly, the party must be present and secondly, he must be guilty of any one of the three things mentioned in R. 3 C.P.C. It is now beyond doubt that the mere presence in court of a party or his counsel not duly instructed cannot be considered as an appearance of the party within the meaning of R. 3 C.P.C. It is also now clear that if the application falls both under Rule 2 and Rule 3 C.P.C., the judgment will be treated as falling under R. 2 for the purpose of the remedy.
(9) Viewed in this background, I have no hesitation to hold that when a party, applies for seeking an adjournment, on the refusal of which he absents himself and is, therefore, set ex parte, and does not participate in further proceedings which went before the Court that day resulting in a decree, such a decree cannot be said to be falling under Order 17, Rule 3 C.P.C. To attract Rule 3 C.P.C., the party must be present at the time when actual proceedings go on. If before the commencement of the proceedings his request for an adjournment was refused and, he absents thereafter, his position cannot be in any way worst than the position of a person who absents himself from the very beginning. Suppose in this case instead of personally presenting the application he had sent an application seeking the adjournment and that application had been rejected, it could not have been argued that the further proceedings which went on after setting him ex parte and resulted in a decree at the end, were under Order 17, Rule 3 C.P.C. If that is so, then if a person, merely appeared for the purpose of seeking an adjournment on the refusal of which he did not participate in the further proceedings, it cannot be said that he was present and participated in the proceedings particularly when he was expressly set ex parte.
(10) What has happened in this case is that after his application for adjournment, was rejected, he went out and did not participate in further proceedings. It is clear from the judgments of the Courts below that in his absence, P.W. 1's deposition was completed. Nobody was present on behalf of the second defendant and no witness o his was present, and the court proceeded to deliver the judgment ex parte. I am clear that this is not the case which falls under Order 17, Rule 3 C.P.C. Iam fortified in this conclusion of mine by the judgment of the Madras High Court.
(11) In K. Somasundaramma v. K. Seshagiri Rao, (1947) 1 Mad LJ 292: (AIR 1947 Mad 378) the suit was posted for arguments on an issue and was adjourned to the 4th April, 1944, on which date the plaintiff filed a petition to amend the plaint so as to clarify her case. The matter came up for arguments again on issue No. 2 on 14th Feb., 1945. On a request made by the plaintiff's pleader it was adjourned to 19th February. On that date a further adjournment which was asked, was refused. Thereupon the plaintiff's lawyer reported no instructions and withdrew from the case. The court then asked the plaintiff whether she was prepared to meet the arguments on the second issue, whereupon she said that she wanted to engage another pleader. Refusing that request, the arguments on behalf of the first defendant were then heard. While these arguments were proceeding, the plaintiff left the court and her absence was recorded. Upon these facts the learned Judges observed:-
'We are not concerned here with the class of cases where the Court decides the suit in circumstances which justify the conclusion that the plaintiff though physically present, was not actually appearing for the purpose of conducting the case. and held in that case.
'Here the plaintiff was physically absent during the later portions of the arguments of the first defendant's lawyer and at the time when the case was closed.
The said judgment, therefore, was treated as an ex parte judgment and it was held that an application under Order 9, Rule 9 C.P.C. could justifiably lie. It will be clear that the facts of that case come very close to the facts of the present case.
(12) I do not think that in Pichamma v. Sreeramulu, 34 Mad LJ 24: ILR 41 Mad 286: (AIR 1918 Mad 143(2) ) (FB), the Full Bench decides contrary to what I have said above. The learned Advocate relying upon the passage appearing at page 32 argues that Order 17, Rule 3 C.P.C. would apply even where the party puts in his appearance for the purpose of asking an adjournment after refusal of which he absents himself and thereafter the proceedings are concluded that day. The following is the passage:
'I think the correct rule is to treat Rule 3 as applying only to cases where the parties are present and have no satisfied the court as to the existence of any adequate reason for their not having done what they were directed to do.'
This passage appears in the judgment of Kumaraswami Sastry J. I do not agree with the interpretation put upon that passage to mean that once an appearance is put in, that is enough to bring the case under Order 17, Rule 3 C.P.C. , in spite of the fact that the party absented himself at the time when the actual proceedings went on and he was set ex parte., the proceedings resulting in an ex parte decree. I do not think that that case decides anything of that kind. It must be remembered that if the party who is present takes no further part in the proceedings his mere presence in the suit. The party who leaves the court, after his request for adjournment is refused, cannot be placed in a worse position. There is hardly any difference in principle in these two situations.
(13) That this is so, is supported by a decision of the Madras High Court. In Natesa Thevar v. Vairavan Servaigran, : AIR1955Mad258 , it is held that where the plaintiff though physically present in court refuses to take part in the proceedings after the dismissal of his application for adjournment, as represented by his counsel, he cannot be said to have been present there as plaintiff, partaking in the proceedings. His physical presence in the court cannot be taken cognizance of, and the only conclusion that one can come to, is that he did not appear at the hearing. The case, therefore, comes under Rule 2 and not Rule 3 or Order 17 C.P.C.
(14) A similar view is held in another Full Bench decision of this Court in M. Agaiah v. Mohd. Abdul Kareem, : AIR1961AP201 (FB) . Their Lordships held:
'The scope of Rule 2 of order 17, Civil Procedure Code, is quite distinct from that of R. 3 R.2 applies to all cases of absence of parties irrespective of their failure to perform the act necessary to the further progress of the suit notwithstanding the fact that time was granted earlier for that purpose. Order 17, Rule 3 comes into operation only where the parties are present and are prepared to proceed with the further hearing of the case, but default of the kind mentioned in that rule is committed.'
(15) It is thus plain that mere physical presence of the party is not sufficient. That is what is now abundantly made clear by the explanation added to Rule 3 of Order 17 C.P.C. Apart from being physically present, he must also be prepared to proceed with the further hearing of the case. It is only to such an effective presence and where default of the kind mentioned in the rule is committed that Rule 3 of Order 17 C.P.C. would be attracted. I am, therefore, satisfied that Order 17, Rule 3 C.P.C. does not apply to a case where a party appears merely for the purpose of seeking an adjournment, after the refusal of which, whether he goes out or although remains present, does not participate in the hearing of the case, in either case he would be considered as not present. Any decree passed in these circumstances would not be deemed to have been passed under Or. 17, Rule 3. It would be a contradiction in terms to hold that the person who absents or says that he does not appear, does in fact appear. The courts below, therefore, have erroneously held that the present case falls within the ambit of Order 17, R. 3 C.P.C. An application under Order 9 Rule 13 C.P.C. therefore, is maintainable.
(16) I have already mentioned that the trial Court has not discussed the application on merits but rejected the petition on the preliminary ground that it was not maintainable. In these circumstances, when the appellate court had agreed with the preliminary objection, it was not advisable for the appellate court to decide the application on merits. Even in a case where the appellate Court has disagreed with the conclusion of the trial court on preliminary point normally the better course is to remand the case for its disposal on merits. The order of the lower appellate Court also is not satisfactory. While it holds that the refusal to adjourn was justified although no enquiry was made, it expresses its opinion perhaps upon that ground alone that there are no grounds for setting aside the ex parte decree. That the trial Court did not make any enquiry and that the appellate Court did not consider even the affidavits is not disputed. I do not think, therefore, that there is any satisfactory judgment of the appellate Court on merits of the application. For these reasons, I set aside the orders of both the courts below and remit the case to the trial court for its disposal on merits in accordance with law after making proper enquiry. Costs of this revision petition will abide the result of the case.
(18) Petition allowed.