1. On, 21-7-1978 when this appeal was posted for hearing, Sri Ranganatham, the learned counsel far the appellant, was not present. There was no representation even. The respondent's counsel was present Hence the appeal was disposed of by me ex parte, having heard the counsel far the respondents. The appeal was dismissed.
2. Sri Ranganatham flied an application stating that he was not able to attend the Court. He, therefore, wanted that the ex parte judgment and decree passed by the High Court on 21-7-78 should be set aside, Sri Ranganatham explains that he was prevented from attending the Court by back-ache which persisted for a week. I accept the explanation offered by Sri Ranganatham that he was prevented by sufficient cause from attending the Court. I, therefore, feel it necessary to set aside the judgment rendered by me on 21-7-1978 and it is accordingly set aside The appeal. is, therefore, restored to file.
3. Then the counsel on both sides addressed arguments. Sri Ranganatham contends that the lower Court is not justified in passing the ex parte decree. He also contends that the lower Court has applied the provisions of O. 17, R. 2 C.P.C, arbitrarily. According to him, the advocate appearing for the 2nd defendant in the suit O.S. 58/76 had been to Hyderabad but returned in Godavari Express and got down at Waltair Railway Station, the terminus station, and from there, he bearded the link Express Bus immediately and proceeded to Sri.kakulam and after taking bath and food, the advocate proceeded to the Court and came to know from his junior Sri D. K. Patnaik that the Court did not pass over till 2-30 p.m though he made a request to do so. He, therefore. contends that it Is not a case of failure on the part of the 2nd defendant's counsel to attend the Court, but it is a case of passing over for few hours, so as to enable the 2nd defendant's counsel to proceed with the trial Further, the delay in attending the Court is due to the reasons beyond the control of the advocate and hence O. l7, R. 2 C.P.C. does not stand in the way of the Court to pass over the matter till 2-30 P.M. for proceeding with the trial.
4. It is not in dispute that the plaintiff filed the suit O.S. No. 58/1976 on the basis of a mortgage executed by the 1st defendant. The 2nd defendant is transferee from the 1st defendant of the property mortgaged. The suit was posted for trial to 2-7-1977. On that day, the defendant was not ready, Therefore the Suit was posted for trial to 21-1-1977, but on 21-7-1977 the case could not be taken up as the Presiding Officer was on leave and the suit was, therefore. posted to 2-8-1977. On 2-8-1977 the plaintiff brought four witnesses and was ready for examining his witnesses. But on 2-8-1977 the 2nd defendant's counsel's junior represented to the Court that his senior went to Hyderabad and he was expected to return by the Godavari Express to Waltair which is the terminus station for the said train and from there he would catch the link bus to come to Sri.kakulam and he would proceed with the trial after his arrival and requested the Court to pass over, so as to enable the counsel to proceed with the trial. But the Court without passing over the matter, proceeded with the examination of the plaintiff as well as his witnesses produced by him and decreed the suit.
5. In order to examine whether the learned Subordinate Judge is justified to pass the impugned order or not. I would like to consider the several provisions of order 17, C.P.C.
6. Rule 1 (1) of O. 17 gives the power to the Court to adjourn the hearing of the suit from time to tune if sufficient cause is shown and this can be done by the Court at any stage of the suit
7. Sub-rule (2) of R. 1 requires the Court to fix a day for the further hearing of the suit while granting adjournment under sub rule (1) of R. 1. it also gives power to the Court to award costs. In respect of suits, the hearing of which has already commenced, the Court has to follow the terms and conditions mentioned in C1s. (a), (b), (c). (d), (e) to the proviso of sub-rule (2). According to C1 (a), the trial shall continue from day-to-day until all the witnesses in attendance have been examined. It mandates that the adjournment of the hearing beyond the following day cannot he granted unless the Court finds it necessary for the exceptional reasons to be recorded by it. It follows that the Court should specify in writing the exceptional reasons as to why the adjournment of the hearing beyond the following day was necessary.
8. The provisions of C1. (b) also apply to the suit the hearing of which has already commencement. According to this clause, no adjournment shall be granted at the request of a party except where the circumstances are beyond the control of the party. It means that unless and until the Court is satisfied that the hearing cannot be proceeded with control of the party, the Court cannot grant adjournment. Even cls. (c) and (d) also apply to the suit the hearing of which has already commencement. Merely that its advocate is engaged in another Court, or that its advocate is prevented by illness from attending the Court or his inability to conduct the case for any other reason, the court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another advocate in time.
9. C1. (e) also deals with the suit the hearing of which has already commenced. This clause gives the power to the Court to record the statement of a witness who is actually present in the Court though the party or his pleader is hot present and pass orders dispensing with the examination in chief or cross-examination of the witnesses as the case may be. It also gives power to the Court to record the statement of the witness if the party or his pleader is not prepared to examine tile witness even though they are present.
10. R. 2 gives the Power to Court to proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit if the parties or any of them fail to appear on any day to which the hearing of the Suit is adjourned.
11. Explanation under this rule provides that the Court may m its discretion proceed with the case as if such party- were present if the evidence or a substantial portion of the evidence of any party has already been recorded and Such party fails to appear on any day to which the hearing of the slut is adjourned.
12. Rule 3 gives the power to the Court to proceed (a) to decide the suit forthwith if the parties are present or (b) to proceed under Rule 2 if the parties are or any of them is absent and this can be done only when the party to the suit to whom tune has been granted falls to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit.
13. In the light of the aforesaid legal position, is the impugned order sustainable?
14. The learned Subordinate Judge declined to grant adjournment at the felt that Cls. (c) and (d) to the proviso to Sub-rule (2) of R. 1 of O. 17 mandate that no adjournment could be granted even if the advocate of the party was engaged in another Court or if the advocate of the party was unable to conduct the case due to illness.
15. But the learned Subordinate Judge has lost sight of the fact that these provisions are applicable to a suit the hearing of which has already been commenced and to the circumstances mentioned in cl (a) to the proviso of sub-rule (2) of R. 1 of O. 17.
16. In the case On hand, the trial of the suit has not commenced. From the facts narrated above, it is clear that the suit was pasted for trial to 21-7-1977. But on 21-7-1977 the case could not be taken up as the Presiding Officer was on Leave and the suit was, therefore, posted to 2-8-1977 for trial From what was stated above, a is dear that if the trial has not commenced, the provisions of Cls. (C) and (d) to the proviso are not applicable. Hence the Court has to apply only the provisions of sub-rules (1) and (2) of R. 1 or the provisions of Rules 2 and 3 of Order 17 or R. 2 of the same order ii it feels a necessary to dispose of the suit ex parte. If sufficient cause is shown, the Court should have to grant adjournment under sub-rule (1) or shall fix a day for further hearing of the suit while granting adjournment and may make such order as he thinks fit with respect to the costs occasioned by the adjournment as provided under sub-rule (2) of Rule 1. The learned Subordinate Judge declined to follow these provisions, but followed the provisions of Rule 2 according to which the Court may proceed to dispose of the suit in one of the modes directed in that behalf by O. 9 or make such other order as he thinks fit if the hearing of the slut is adjourned to a particular date and if the parties or any of them fail to appear. The relevant rules of O. 9 applicable are Rules 6 and 13.
17. R. 6 of O. 9 provides that where the plaintiff appears and the defendant does not appear when the suit is called an for hearing, then the Court may make an order that the suit be beard ex parte provided that summons was duly served.
18. R. 13 of O .9 provides that in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks and Shall appoint a day for proceeding with the suit.
19. As stated above, the learned Subordinate Judge has followed the provisions of R. 2 of O. 17 and disposed of the suit in accordance with the provisions of R. 6 of O .9.
20. When the Court declined to follow the provisions of sub-rules (1) and (2) of Rule 1, but follows the provisions of Rule 2 and passes a decree even examining the plaintiff as well as the witnesses produced by him, as provided under R. 6 of O 9, it is open to the defendant against whom the ex parte decree was passed to file a petition for setting aside the ex parte decree under R. 13 of O. 9 and the Court is given power to set aside the ex parte decree if the defendant against whom the parte decree was passes satisfies Court that he was prevented by any sufficient cause from appearing when suit was called on for hearing.
21. In the case on hand, the 2nd defendant filed a petition for setting the ex parte decree under
R. 13 of O.9. The 2nd defendant submitted to the Court the circumstances under which counsel was not able to attend the Court. The circumstances are that the counsel for the 2nd defendant had been Hyderabad and was returning by Godavari Express to Waltair which is the other terminus station for the said train and from there he would catch the bus to come to Sri.kakulam and this representation was made by the junior the defendant's counsel and he also requested the Court to pass over the hearing of the suit. The learned counsel for the 2nd defendant in fact came to Sri.kakulam though there was some delay for from to reach the station and when he attended the Court he was informed by his junior that the suit was decreed ex parte.
22. Undoubtedly the delay caused by the train in arriving at the terminus station is a circumstance beyond the control, of the 2nd defendant's counsel. But the 2nd defendant's counsel came to the Court and was prepared to proceed with the trial, but unfortunately the Court has already passed ex parte decree. If the trial of the suit could have been taken up by 2-30 P.M., i.e., after lunch, the learned counsel for the 2 nd defendant could have proceeded with the cross-examination of the witnesses examined by the plaintiff. It is, therefore, clear that the request was made by the junior only to pass over, but not to adjourn. Thus I am convinced to hold these circumstances do constitute sufficient cause and I find myself unable to agree with the learned Subordinate Judge who was of the opinion that it is a clear attempt on the part of the defendant to prolong the trial of the suit. But while setting aside the impugned order and the ex parte decree passed the suit, I would like to impose the terms. It is brought to my notice that an amount of
Rs. 2,939-35 ps. towards entire costs has been deposited in the Court to the credit of the suit. I, therefore, direct that the said amount deposited by the appellant may be treated as terms in this appeal The 2nd defendant is directed not to withdraw the amount till the disposal of the suit. Thus I set aside the impugned Order passed in the I.A. and also the ex parte decree passed in the suit O.S. No, 58/76 by the learned Subordinate Judge and direct the learned Subordinate. Judge to proceed with the trial of the suit by fixing date Peremptorily for trial after giving notice to both sides and the plaintiff Should proceed with the trial and in case of default on the part of the 2nd defendant, the learned Subordinate Judge can dispose of the matter in accordance with law.
23. In the result the Civil Miscellaneous Appeal is allowed but without costs,
24. Appeal allowed.