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M.S. Khalsa Vs. Chiranji Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. Nos. 801 of 1968, 356 of 1970 and F.A.F.O. No. 329 of 1970
Judge
Reported inAIR1976All290
ActsCode of Civil Procedure (CPC) , 1908 - Order 17, Rules 2 and 3 - Order 9, Rule 13
AppellantM.S. Khalsa
RespondentChiranji Lal and ors.
Appellant AdvocateK.C. Saxena, Adv.
Respondent AdvocateS.D. Agarwal and ;K.N. Seth, Advs.
Excerpt:
civil - application of provision - order 17, rules 2 and 3 and order 9, rule 13 of code of civil procedure, 1908 - party obtains adjournment on date of final hearing of suit - fails to appear on fixed date - case covered under order 17, rule 2 and application under order 9, rule 13 will lie notwithstanding that court profess to act under order 17, rule 3 - whether correct view - held, rule 3 applies when party is present or is deemed to be present and defaulted. - - the decided cases of this court noticed by my learned brothers show that despite all efforts we have only succeeded in cooking a soup of varied hue and colour and nobody has been the wiser as to what it is and what it tastes like. there is no denying the fact that in the day to day working of the subordinate courts in the.....asthana, c.j.1. i am indebted to brothers satish chandra and c. s. p. singh for the opinions they have prepared, which i had the benefit of perusing. they have very dextrougly reviewed almost whole of the law and have very ably arrived at certain conclusions on the vexed questions which have defied solution and have been a prolific source of litigation in the subordinate courts and in the high court without end. the decided cases of this court noticed by my learned brothers show that despite all efforts we have only succeeded in cooking a soup of varied hue and colour and nobody has been the wiser as to what it is and what it tastes like. i share the view of brother c. s. p. singh that the situation calls for modification of the relevant rules for achieving clarity and definiteness. there.....
Judgment:

Asthana, C.J.

1. I am indebted to brothers Satish Chandra and C. S. P. Singh for the opinions they have prepared, which I had the benefit of perusing. They have very dextrougly reviewed almost whole of the law and have very ably arrived at certain conclusions on the vexed questions which have defied solution and have been a prolific source of litigation in the subordinate courts and in the High Court without end. The decided cases of this Court noticed by my learned brothers show that despite all efforts we have only succeeded in cooking a soup of varied hue and colour and nobody has been the wiser as to what it is and what it tastes like. I share the view of brother C. S. P. Singh that the situation calls for modification of the relevant rules for achieving clarity and definiteness. There is no denying the fact that in the day to day working of the subordinate Courts in the exercise of their civil jurisdiction the problems posed will always arise in the disposal of the cases on the adjourned dates and the sooner the modification is done the better it would be for all. Considering the importance of the questions referred, I would like to add a few words of my own.

2. Order XVII, Rule 3 of the Code of Civil Procedure as amended by this Court stands as follows:--

'Where, in a case to which Rule 2 does not apply, any party to a suit to whom time has been granted fails to produce his evidence, or to cause attendance of his witnesses, 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 is mine).

3. Rule 3 as amended by this Court comes into play in a case to which Rule 2 does not apply. Thus the cases which are covered by Rule 2 of Order XVII will not fall within the ambit of Rule 3. Naturally it has to be found out first what are the cases which would be governed by Rule 2.

4. Rule 2 as amended by . this Court stands as follows:--

'Where on any day to which the hearing of the suit is adjourned, 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.

Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on such day, the court may in its discretion proceed with the case as if such party were present and may dispose of it on merits.'

5. An analysis of Rule 2 will show that it would be attracted to cases:--

(i) Which come up for hearing on a date which was fixed after adjournment of the suit on a previous day;

(ii) The parties or any one of them fail to appear on the date so fixed;

(iii) Where the evidence or substantial portion of evidence of any party has already been recorded on a previous day and such party if fails to appear on the day so fixed a court can use its discretion to proceed with the case and may dispose of it on the merits treating that such party was present;

(iv) A party which is present and does not do anything else, will be treated as not having failed to appear; and

(v) A party represented in court by an agent or pleader, though engaged only for the purpose of making an application, will also be deemed not to have failed to appear.

6-9. Rule 2 substantially concerns itself when a party or any one of them fails to appear on the adjourned date. When both the parties or any one of them is absent on the adjourned date, Rule 2 squarely will apply and Rule 3 will be excluded. It follows, therefore, that when any party to a suit, to whom time had been granted, fails to produce its evidence or to produce its witnesses or fails to perform any other act necessary to the further progress of the suit for which time had been allowed, is absent on the adjourned date, Rule 3 will not apply.

10. The difficulty, however, arises when a party which is treated or deemed as present and does not do anything or engages a counsel for the purpose of making any application on the adjourned date, will its case fall out of the ambit of Rule 2 and the court will have no power to dispose of the suit in one of the modes directed in that behalf by Order IX? The amendment made by this Court is clear in one respect that the court at its discretion can dispose of a suit if the party which is absent has already adduced its evidence wholly or substantially either in one of the modes allowed by Order IX of C.P.C. or can make any other order it thinks fit. In such a case also Rule 3 will not apply as it would be covered by Rule 2.

11. If, however, a party is present but does not do anything, it cannot be said to nave failed to appear that is, it cannot be said to be absent on the adjourned date and it is a party to whom time had not been granted to do anything as envisaged by Rule 3; its case then poses a problem. Since it is not absent and thus has not failed to appear, strictly speaking, the court cannot proceed to dispose- of the suit in one of the modes directed in that behalf by Order IX or make such other order as the court thinks fit. Likewise, will be the case of the party which is represented by a counsel only to make an application, who then withdraws and does not do anything else for the furtherance of the suit and which party has also not taken time to do any of the acts envisaged by Rule 3.

12. The situation described above in the case of a party gives rise to a conundrum. Since the party is not absent and has not failed to appear, it can be said to fall out of Rule 2 but at the same time Rule 3 would not be attracted as it is not a party which had taken time to do any of the acts envisaged by Rule 3. It is this situation which has defied solution and the situation calls for reconsideration and framing of clear and precise rules since it is our amendments which have created the impasse.

13. So long as Rules 2 and 3 stand as they are, defectively though, I venture to suggest that--

(1) Rule 3 cannot be resorted to where the parties or any of them is absent even though on the previous date the hearing of the suit was adjourned for granting to both or to any one of them time to produce evidence or witnesses or perform any other act necessary to the further progress of the suit. Such a case would squarely be covered by Rule 2, the parties or any one of them having failed to appear.

(2) Rule 3 can only be resorted to when the party, to whom time was given to produce evidence or to cause attendance of the witnesses or to perform any other act necessary for further progress of the suit, is actually present on the adjourned date of hearing but fails to do any of the acts for which the time was granted. For this purpose the fictional presence envisaged by the Explanation to Rule 2 is not to be taken into consideration. It is only the factual presence which is to be taken into account.

14. I would recommend that the courts below in their anxiety to dispose of the suit should not readily proceed to decide the suit on the merits under Rule 3 for they have the discretion not to proceed to decide the suit forthwith under that rule. It is only in exceptional cases that this be done in order to penalise a really negligent or cantankerous party. I would leave the matter at that.

15. On a deep consideration of the solutions suggested, I would agree with the opinion of brother Satisth Chandra and would answer the questions referred accordingly and also agree that appeal be dismissed.

Satish Chandra, J.

16. In Civil Revision No. 801 of 1968 a Division Bench referred the following question of law for decision by a Full Bench:--

'Whether a case in which the defendant obtains an adjournment on the date of final hearing of the suit and fails to appear on the adjourned date would be covered by Rule 2 of Order XVII C.P.C. and whether the Court has jurisdiction to pass an order under Rule 3 of Order XVII, C.P.C.'

17. In First Appeal From Order No. 329 of 1970 a Division Bench felt that similar question appears to be involved in the instant appeal. It, therefore, directed that--

'this appeal may also be listed before the same Bench before which the question in Civil Revision No. 801 of 1568 may be put up.'

In consequence the appeal itself is up for decision before this Full Bench.

18. In Civil Revision No. 356 of 1970 a learned single Judge referred the following question to a larger Bench:--

'Whether an application moved for adjournment of a case is an application contemplated by and within the meaning of the Explanation added by this Court in Order XVII, Rule 2, C.P.C.'

19. In First Appeal from Order No. 329 of 1970 the facts are that 8-7-1969 was fixed for final hearing. On that date the defendants moved an application for adjournment on ground of illness. The prayer was allowed subject to payment of Rs. 400 as costs, and 1-8-1969 was fixed for final hearing. On this date counsel for both parties were present. Counsel for defendants moved another application for adjournment. This application was rejected by the Court. Thereupon counsel for defendants stated that he had no further instructions, and was, therefore, withdrawing from the case. The Court directed that the case will proceed under Order XVII, Rule 3, C.P.C. Thereafter the plaintiff produced his evidence and closed his case. The Court fixed 2-8-1969 for judgment. On 2-8-1969 the suit was decreed on the merits.

20. The defendants moved an application under Order IX, Rule 13, C.P.C. The learned Civil Judge held that as the date on which the order to proceed under Order XVII, Rule 3, C.P.C. was passed was an adjourned date and the adjournment had been allowed at the instance of the defendants, Order XVII, Rule 3, C.P.C. became applicable. Since counsel for the defendants had appeared on that date, even though only for moving an application for adjournment, the provisions of Order XVII, Rule 2, C.P.C. would not apply. The defendants could file an appeal and had no locus standi to move an application to set aside the decree under Order IX, Rule 13, C.P.C. On these findings the application was dismissed. Aggrieved, the defendants have filed the present appeal.

21. The facts of this appeal involve consideration of the questions--

(1) Whether Rule 3 of Order XVII can at all apply if one or the other of the parties has failed to appear?

(2) Whether Rule 3 of Order XVII is attracted merely because the defaulting party had taken an adjournment on the previous date even though such party was not either on previous or the adjourned date required to do any of the acts mentioned in Rule 3?

(3) Whether an application for adjournment simpliciter would be covered by the Explanation added by this Court to Order XVII, Rule 2, C.P.C.?

(4) What is the significance of the word 'forthwith' occurring in Rule 3 of Order XVII, C.P.C.?

(5) Whether an order by the Court that it was proceeding or passing a decree under Order XVII, Rule 3, C.P.C. was final and binding on the defendant; or whether the defendant was entitled to maintain an application under Order IX, Rule 13, C.P.C. on the plea that in fact and in law the decree was caused by his non-appearance, and so it was a decree passed ex parte against the defendant?

22. I shall first read the relevant and material statutory provisions.

23. Section 27, C.P.C. provides that--

'Where a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed'.

Section 33 provides--

'The Court, after the case has been heard, shall pronounce judgment, and on such judgment, a decree shall follow'.

Order IX, C.P.C. is headed--

'Appearance of parties and consequence of non-appearance.'

Rule 1 of this Order provides-

'On the day fixed in the summons for the defendant to appear end answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.''

Rule 6 of Order IX provides-

'6 (1). Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing then--

(a) if it is proved that the summons was duly served, the Court may proceed ex parte.'

Rule 7 of Order IX, C.P.C. provides that where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, the Court may, upon such terms as it directs as to costs or otherwise, set aside the order for the hearing of the suit ex parte and hear the defendant in answer to the suit as if he had appeared on the day fixed for his appearance.

24. Under Rule 8 of Order IX, where the defendant appears and the plaintiff does not appear, the Court can make an order that the suit be dismissed. Where the suit is dismissed under Rule 8 the plaintiff can under Rule 9 apply 'for an order to set the dismissal aside' on proof of sufficient cause for his non-appearance.

25. Rule 13 of Order IX, C.P.C., provides for setting aside decrees ex parte against defendant. It says--

'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.'

The Rule goes on to provide that where the summons was not duly served, or that the defendant was prevented by sufficient cause from appearing, the Court shall make an order setting aside the decree.

Order XVII, C.P.C. is headed-

'Adjournments'.

Under Rule 1 of this Order the Court is entitled to adjourn the hearing of the suit from time to time. Rules 2 and 3 of this Order provide--

'2. 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. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witness, 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.'

26-27. Rules 2 and 3 of Order XVII C.P.C. have been the subject-matter of amendments by this Court. By Notification No. 6324/35 (a), dated December 2, 1926, the following was added to Order XVII, Rule 2:--

'Where on any such day the evidence, or a substantial portion of the evidence of any party has been recorded and such party fails to appear, the Court may in its discretion proceed with the case as if such party were present and may dispose of it on the merits.

Explanation.-- No party shall be deemed to have failed to appear if he is either present or is represented in Court by an agent or pleader, though engaged only for the purpose of moving an application'.

28. The phrase 'on any such day' occurring in the beginning of the amendment made by this Court caused confusion. The office note put up before the Rules Committee stated:--

'An ambiguity was felt in the words 'on any such day' which appear to mean 'where on any day on which the hearing of the suit is adjourned at which the parties or any of them fail to appear' and it was felt that these words 'on any such day' were inconsistent with the words 'a ' substantial portion of the evidence of any party has been recorded and such party fails to appear on such day'.'

The office as such suggested an amendment, so that the Rule may read--

'Where previous to any such day, the evidence or a substantial portion of the evidence of any party has been recorded and such party fails to appear on such day, the Court may in its discretion proceed with the case as if such party were present and may dispose of it on the merits.'

29. The Rules Committee substantially agreed with the suggested amendments and ultimately by Notification No, 2874, dated May 28, 1943, the second paragraph of Rule 2 was repealed and substituted by the following--

'Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on such day the Court may in its discretion proceed with the case as if such party were present and will dispose of it on the merits.

Explanation.-- No party shall be deemed to have failed to appear if he is either present or is represented by an agent or pleader, though engaged only for the purpose of making an application.' The new second paragraph, in effect, deleted the phrase 'on any such day' occurring in it previously. In the next place, it added the word 'already' between the words 'has' and 'been', so that the clause reads-- 'Where the evidence or a substantial portion of the evidence of any party has already been recorded.'

30. By the same Notification dated December 2, 1926, Rule 3 was amended so as to read as follows:--

'Where any party to a suit to Whom time has been granted fails, without reasonable excuse, to produce his evidence, or to comply with any previous order or to perform any other act necessary to the further progress of the suit for which time has been allowed, the Court may, whether such party is present or not, proceed to decide the suit on the merits.'

31. The amendment to Rule 3 changed the Rule as enacted by the Legislature in several respects. It added the phrase 'without reasonable excuse'. In the next place, it expressly provided 'whether such party is present or not', and lastly, it omitted the word 'forthwith' from Rule 3, and expressly authorised the Court to decide the suit on the merits. It also added one more condition, namely, 'or to comply with any previous order'.

32. In Sheo Pujan Kalwar v. Bish-nath Kalwar : AIR1939All642 , Collister, J. considered Rule 3 as amended by this Court, and held that a decree passed under Rule 3 cannot be regarded as ex parte decree so as to entitle the defendant to apply for restoration even if he was absent.

33. In Civil Revision No. 111 of 1942, decided on 17th March, 1943, York, J. followed the above decision of Collister, J., but remarked at the end of his judgment that Rule 3 'as it now stands seems to me to create a difficult position. It may well be that a party to whom time has been granted may fail to produce his evidence or to summon his witnesses or to comply with the previous order for reasons beyond his control and that having so failed he may also on the date to which the suit has been postponed be prevented from appearance by circumstances over which he has no control. He might for instance have succumbed to an accident or to an illness of a very serious nature to such an extent that he was unable even to send some one to court to inform of his unfortunate position. In that case the suit will in due course be decreed against him upon the merits and the only redress open to turn will be either an application for review or an appeal against the decree on the merits. But upon such an application for review or in such an appeal the party concerned will only be able to deal with the merits of the decision and it will not be open to the court which has to dispose of the application or the appeal to listen to evidence on the question whether he had or had not reasonable excuse for not doing any of those things which he had failed to do. The question of reasonable excuse is one which can really be dealt with satisfactorily only upon an application for setting aside a decree and restoring a suit and not upon either an appeal or an application for review. I am, therefore, in some doubt as to whether some amendment of Rule 3 of Order XVII is not desirable.'

34. Upon this decision being rendered, the Registry of the Court put up a note before the English Judge. The English Judge on 28th July, 1943, directed that the matter be laid before the Rules Committee. The Rules Committee met on 19th February, 1944, and resolved that the local amendments be deleted and the original Rule as set forth in the First Schedule of the Code of Civil Procedure be restored. In consequence Notification No. 3517/35 (a), dated June 22, 1944, was issued, which provided--

'Cancel the amendment made by the Court in Rule 3 of Order XVII under its Notification No, 6324/35 (a), dated December 2, 1926, and restore the original rule as enacted by the Legislature.'

35. It is obvious that the amendment was cancelled to get rid of the difficulty caused by the language of the amended Rule that even where the defendant failed to appear the suit could proceed on merits.

36. In Qudrutullah v. Mohammad Kasim Khan, : AIR1952All208 (decided on 17th January, 1949), Malik, C. J., speaking for the Division Bench, held that where a party fails to appear on an adjourned date, the Court was bound to proceed under Rule 2 and could not decide the suit on the merits under Rule 3, even though that party had earlier taken an adjournment for doing one of the things mentioned in Rule 3.

37. In Sri Krishen v. Radha Krishen : AIR1952All652 (decided on 15th September, 1950) a Division Bench of this Court, speaking through Agarwala, J., took the view that if a party takes an ed-journment to do something and fails to appear on the adjourned date, the Court has jurisdiction to pass an order under Order XVII, Rule 3, deciding the case on the merits. The decision in Qudrutullah : AIR1952All208 was not brought to the notice of this Bench.

38. On 26th March, 1952, Desai, J. submitted a note for consideration before a Judges' Meeting, which was to be held on Saturady, the 29th March. 1952. The note stated--

'Order XVII, C.P.C. should be amended so as to provide that when a party is absent the court must proceed as laid down in Order IX. The law regarding Order XVII is very uncertain and the uncertainty causes waste of much time and puts litigants to much expense. They are not certain whether they should file an appeal or apply for restoration or the setting aside of the decree. I think that even when a court acts under Order XVII, if the default lies in the absence of the party, it must act according to Order IX, that is if the party is a plaintiff dismiss the suit in default without going into merits and if he is a defendant pass an ex parte decree on merits. In such a case the remedy of the defaulting party would be to apply for restoration or the setting aside of the decree and the uncertainty would disappear.'

39. This matter was considered by the Judges at the meeting held on 29th March, 1952, and it was resolved that the question whether any amendments are required in Order XVII of Schedule I of the Code of Civil Procedure. 1908, be referred to the Rules Committee.

The Rules Committee met on 13th September, 1952, and re.solved--

'In Rule 3 of Order XVII, put a comma after the first word 'where' and insert thereafter 'in a case to which Rule 2 does not apply'.'

40. . The amendments recommended by the Rules Committee were circulated to the Hon'ble Judges of the Court; they were unanimously approved, and after the sanction of the Local Government the same were published in the gazette of 17th January, 1953.

41. The effect of this amendment was that Rule 3 was not to apply to a case to which Rule 2 was applicable. The first paragraph of Rule 2 applied to a case where a party failed to appear on an adjourned date. Therefore, a case where a party fails to appear being covered by Rule 2, could not be governed by Rule 3 at all.

42. The question came up before a Division Bench in Pitambar Prasad v. Sohan Lal : AIR1957All107 Agarwala, J. speaking for the Division Bench, noticed the conflict of opinion between Qudrutullah, AIR 1952 All 208 and Sri Krishen : AIR1952All652 and observed:--

'This conflict of opinion was, however, avoided by a later amendment of the rule made in the year 1953 by which it was made clear that the rule did not apply when the party concerned was absent.

Thus as Rule 3 stands at present in this Court it can apply only when the party concerned is present on the adjourned date or is deemed to be present under the Explanation to Rule 3 and he fails to do the things for which the adjournment was granted to him and in such a case the court may decide the case on the merits or adjourn it but has no power to pass an order under Order IX.'

43. This point was considered by Desai. J. in Radhey Shyam v. Ghasita, 1958 All WR (HC) 76. It was held--

'Rule 3 also has been amended by this Court and now applies only in a case not governed by Rule 2. If a suit must be dismissed under Order IX on account of the plaintiff's absence under Rule 2, the court has no jurisdiction to proceed to dispose of it under Rule 3. The Legislature obviously intended Rule 3 to be applied when the party concerned was present but had failed to produce his evidence or to perform any other act necessary to the further progress of the suit. After having already provided for the contingency of his absence in Rule 2 it could not have intended Rule 3 to apply not only to contingencies mentioned therein but also to the contingency of his absence. Even if the non-production of the evidence or the non-performance of any other act necessary to the further progress of the suit is the result of the parties' absence, it is logically and more properly a case of absence and not of non-production of evidence or non-performance of a necessary act.'

Similar views were expressed by my Lord the Chief Justice (Hon. Asthana, J. as he then was) in his referring order dated 3rd October, 1969, made in Civil Revision No. 801 of 1968. Said he--

'To my mind the real clue to the difference between the applicability of Rule 2 and Rule 3 of Order XVII is dependent upon the failure of any party to appear in one case and a party appearing before the court but not doing that act for which it had taken adjournment from the court at a previous occasion. Once a party had failed to appear Rule 2 will come into play according to the amendment introduced by this Court which emphasised that where Rule 2 does not apply the Court can proceed under Rule 3. Then it would be immaterial whether the party who has failed to appear was the party at whose instance the court had granted an adjournment at a previous stage. In the language of Rule 2 by itself it would be seen there is absolutely no indication how the adjourned date is fixed and which is the party who fails to appear and the reason therefor. Once a party fails to appear in fact and in law on the adjourned date fixed for the hearing of the suit, Rule 2 will come into play. If I am right in the approach, then Rule 3 will never apply to such circumstances as our amendment says in Rule 3 'where in a case to which Rule 2 does not apply.....'.'

44. The matter may be looked at from another view point. Order IX, Rule 6 (1) (a) provides that where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, if it is proved that the summons was duly served, the court may proceed 'ex parte'. The import and significance of the Rule was considered by the Supreme Court in Sangram Singh v. Election Tribunal : [1955]2SCR1 . Bose, J. speaking for the Court, observed--

'..... Our Laws of procedure are based on the principle that, as far as possible, no proceedings in a court of law should be conducted to the detriment of A person in his absence. There are of course exceptions and this is one of them. When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the court may proceed in his absence. But, be it noted that the court is not directed to make an ex parte order. Of course the fact that it is proceeding ex parte will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ex parte decree or other ex parte order which the court is authorised to make.'

The learned Judge went on to hold--

'All that Rule 6 (1) (a) does is to remove a bar and no more. It merely authorises the court to do that which it could not have done without this authority, namely, to proceed in the absence of one of the parties.'

Further on the learned Judge dealt with adjourned hearing under Order XVII. Referring to Rule 2 of Order XVII it was held--

'Now Rule 2 only applies when one or both the parties do not appear on the day fixed for the adjourned hearing and in that event the court is thrown back to Order IX with the additional power to make 'such order as it thinks fit'. When it goes back to Order IX it finds that it is again empowered to proceed 'ex parte' at the adjourned hearing in the same way as it did, or could have done, if one or other of the parties had not appeared at the first hearing, that is to say, the right to proceed 'ex parte' is a right which accrues from day to day because at each adjourned hearing the court is thrown back to Order IX, Rule 6.'

45. This decision yields the proposition that but for Rule 6 (1) (e) of Order IX the Court would have no authority to proceed in the absence of one of the parties; and that it is by virtue of Rule 2 of Order XVII, which makes Order IX applicable to an adjourned hearing, that the court derives the right to proceed in the absence of one of the parties even on an adjourned date.

46. The point that I wish to make is this. Order XVII, Rule 3, does not entitle the court to fall back on Order IX. In the context of the Implication of Rule 6 (1) (a) of Order IX that without such a provision the court would have no jurisdiction to proceed to decide a case in the absence of one of the parties, it is apparent that the court is not empowered to proceed to decide the suit on merits under Rule 3, in the absence of any of the mar-ties.

47. I am, with respect, in agreement with the view that if a party fails to appear at an adjourned date, Rule 3 will not apply even though he may have omitted to do any of the acts mentioned in Rule 3 and even though such party may have taken time on a previous occasion to do so. In all cases of failure to appear by a party the case will be governed by Rule 2. This construction of Rule 2, as it stands amended in this Court, is not only consistent with the language read in the context of Order XVII, Rule 2, and Order IX, Rule 6 (1) (a), but is also in accord with the express purpose for which the Rule was amended in 1953.

48. A discording note has, however, been expressed in Rameshwar Prasad v. Rajasthan Government : AIR1962All515 . It was held that the distinction between Rule 2 and Rule 3 had been maintained and that for the application of Rule what is necessary is that the date should be merely an adjourned date but should not be on the motion of the defaulting party. In case the date of hearing was fixed on the motion of the party who subsequently failed to appear, the proper Rule to apply would be Rule 3, and not Rule 2. In support of this view reliance was placed upon the decision in Sri Krishen. : AIR1952All652 as well as Qudrutullah : AIR1952All208 . The decision in Qudrutullah does not lay down any such principle. Sri Krishen's case was decided before the Rule was amended in 1953. It was explained in the later decision and set at rest in the case of Pitam-bar Prasad v. Sohan Lal : AIR1957All107 (supra). In my opinion the decision in Rameshwar Prasad's case does not lay down correct law.

49. Order XVII, Rule 2, gives discretion to Court to decide the suit on merits if the evidence or a substantial portion of the evidence of a party has been recorded and such party fails to appear.

50. Order XVII, Rule 3, entitles Court to decide the suit on merits if the party appears or is deemed to appear but defaults in doing the acts mentioned in the Rule.

51. A case where a party appeari but does not produce evidence or participate in the hearing is not covered by Rule 2 or Rule 3. Since the party is present the Court will proceed with the hearing and dispose of the suit on whatever evidence is brought on record. That is the effect of Section 33 and Order IX, Rule 1.

52. The explanation added by this Court, by a fiction, makes a party present (where his counsel makes an adjournment application). When a party is deemed to be present, the same position follows as when he is actually present but does not participate in the hearing. Since he is present, the Court cannot proceed ex parte. The hearing will naturally be on merits and if the suit is decided on that day, the decree will be on merits, which cannot be set aside on an application under Order IX, Rule 9 or 13, C.P.C.

53. It does sound anomalous, but the reason seems to be the Explanation to Rule 2.

54. Here I may deal with an allied matter discussed at the hearing. Order XVII, Rule 2, provides that 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. There is some controversy as to the significance of the term 'make such order as it thinks fit'.

55. One view is that the court can only adjourn the hearing. It cannot decide the case on the merits-- See Mst. Jagga v. Kanhaiya Lal : AIR1957All344 ; Ram Adhin v. Ram Bharose : AIR1925All182 ; Ganeshi Lal v. Debi Das, : AIR1925All267 and Ram Charon Lal v. Raghubir, AIR 1923 All 551. None of these cases considered or decided whether the court can pass an order or decree in favour of the absent party.

56. This aspect was discussed by Desai, J. in Redhey Shyam v. Ghasita, 1958 All WR (HC) 76 (supra). His Lordship observed--

'Rule 2 gives discretion to a court either to proceed under Order IX or to make such other order as it thinks fit when the parties, or any of them, fail to appear on the adjourned date. Different circumstances prevailing on the adjourned date require different considerations and what would be a proper order in one circumstance may not be a proper order in another circumstance; that is why discretion has been left to the trial court. There may be circumstances justifying the suit being decreed in spite of the absence of the plaintiff; if the court were required to proceed only under Order IX, it would have been obliged to dismiss the suit despite its being fit to be decreed. Consequently the court has been given power to pass a decree as any other order as it thinks fit. If the initial onus lies upon the defendant (on account of a legal presumption in favour of the plaintiff) it would be unjust to dismiss a suit solely on the ground of the plaintiff's absence. If the plaintiff has closed his case and is absent on the next date fixed for the defendant's evidence and the defendant has got no evidence, it would again be unjust to dismiss the suit on the ground of the plaintiff's absence. Then there may be circumstances on account of which the court may think that the plaintiff's absence was for sufficient cause and it would be unjust to dismiss the suit in default. There may not be legal evidence to show that the plaintiff's absence was for sufficient cause but the court may have information about it and to enable it to act on that information and adjourn the suit it is empowered to pass such other order as it thinks fit. The intention behind the use of these words seems to be to enable the suit to be decreed or to be adjourned. If there are no circumstances justifying the decreeing of the suit or adjournment of it the court must proceed under Order IX.'

57. These observations suggest that the court can, apart from adjourning the hearing to another date, also decide the suit in favour of the absenting party, depending on the circumstances prevailing on that date.

58. In my opinion it is not quite an accurate statement of the law to say that the only order that the court can, under the last clause of Rule 2, pass is to adjourn the hearing to some other date. The court can also pass such other order in favour of the absenting party as the circumstances may justify.

59. There are more than one reason. In the first place, the phrase 'make such other order as it thinks fit' contemplates an order other than one which can be passed under Order IX. Order IX contemplates the disposal of the suit against the non-appearing party. If the plaintiff fails to appear the suit can be dismissed for default under Rule 8 of Order IX. If the defendant fails to appear, the suit is liable to be decreed ex parte under Order IX, Rule 6 (1) (a). Ex hypothesi, the court cannot, under this clause, pass an order disposing of the suit against the non-appearing party. That is the only bar.

60. In the next place, Order IX, Rule 2, which provides for dismissal for default on plaintiff's absence, entitles the court, in spite of the absence, to decree so much of the suit as is admitted by the defendant. As pointed out by Desai, J. evidence already on record and the default of prosecution by the party who is present may, at an adjourned hearing, be sufficient to pass a decree in favour of the absent party. That is why the court was empowered to pass any order which the justice and circumstances of the case require.

61. Order XVII, Rule 3, entitles the court to 'proceed to decide the suit forthwith'. It was argued that 'forthwith' is a direction to decide the same day as a penalty for default.

62. In Dayalji Wasanji v. Kedar-nath Onkarmal, AIR 1953 Nag 222 Mu-dholkar, J. held that Rule 3 is penal and the word 'forthwith' means the same day, This opinion was accepted by Pathak J. in Kesho Singh v. Om Prakash 1970 All LJ 189.

63. On the other hand, in Sitara Begam v. Tulshi Singh, (1901) ILR 23 All 462 a Division Bench held that Rule 3 is not penal. It was observed---

'In our opinion what the section provides is, that the mere fact of a party making default in the performance of what he was directed to do would not lead to the dismissal of the plaintiff's suit, if he was the party in default, or the decreeing of the claim against the defendant, if the defendant was the person who made the default. We think that the words 'notwithstanding such default' clearly imply that the Court is to proceed with the disposal of the suit, in spite of the default, upon such materials as are before it. Had the intention of the Legislature been that such default would entail dismissal in the case of the plaintiff, or the striking out of the defence in the case of the defendant, we would have expected a provision similar to that contained in Section 136 (equal to Order XI, Rule 21 of the present Code) or Section 120 (equivalent to Order X, Rule 4 of the present Code) of the Code. If the Judge's view were correct, what would be the result if the default was made by the defendant? Would the plaintiff's suit be decreed forthwith without taking any evidence, or without reference to the evidence which had already been adduced? Clearly not. In our opinion the Section has been misread and misinterpreted by both the Courts below. The Munsif seems to have proceeded on the assumption that he could punish the plaintiff for disobedience to the order of the Court by dismissing the suit. That ha cannot do. The Court was certainly not bound to adjourn the hearing of the suit, and it was for the plaintiff to establish her claim by such evidence as she was in a position to adduce on the date fixed. If that evidence failed to substantiate the claim, it would, of course, be dismissed. But the mere fact of her failure to comply with the order of the court would not justify an order of dismissal'.

64. This decision is in accord with the observations of the Supreme Court in Sangram Singh's case (supra) that the provisions of Order IX or Order XVII are not penal. They are not intended to punish parties.

65. If the legislative intent was that the expression 'proceed to decide the suit forthwith' meant pronouncing of the judgment the same day, it would have used that phrase, because it has done so in several other provisions of the Code.

66. Order XV, Rules 1, 2 and 4 provide that the court may 'at once pronounce judgment'. Order VIII, Rule 10, C.P.C. says that where any party from whom a written statement is so required fails to present the same within the time fixed by the court it may pronounce judgment against him.

Order XV, Rule 3, provides--

'Where the parties are at issue on some question of law or of fact, and issues have been framed by the court as hereinbefore provided, if the court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from pro-ceeding with the suit forthwith, the court may proceed to determine such issues, and if the finding thereon is sufficient for the decision, may pronounce judgment accordingly.....'

67. Here the court can decide the suit by proceeding with the suit forthwith by determining the issues, giving findings and then pronouncing judgment accordingly. The phrase 'proceed to decide the suit forthwith' in Rule 3 appears to be somewhat similar in its import to Order XV, Rule 3. The word 'forthwith' qualifies the word 'proceed' rather than the word 'decide'. All that the Rule directs is that notwithstanding the default the court is to proceed with the further hearing or trial of the suit with a view to dispose it of, if possible on that very day, in accordance with law.

68. In Sangram Singh's case : [1955]2SCR1 the Supreme Court emphasised that right to proceed ex parte occurs from day to day of the adjourned hearing. The same principle is applicable to Order XVII, Rule 3. If on a particular date of hearing Rule 3 is attracted, the court can proceed to try the suit on that day, and if for some reason it is unable to conclude the hearing or decision of the suit on that day and adjourns the further hearing to another day, the next date will not automatically be governed by Rule 3. It will depend on the circumstances prevailing on that day. The party who had defaulted on the previous date will be entitled to participate in the proceedings, though it will not be allowed to put the clock back by seeking to do what he ought to have done on the previous date. But, if on the next day, a party is absent, the proceedings on that day will be ex parte. The position whether a proceeding on a given day is ex parte or on merits will depend on the facts obtaining on that day.

69. The question of law referred in Civil Revision No 801 of 1968, namely--

'WHETHER a case in which the defendant obtains an adjournment on the date of final hearing of the suit, and fails to appear on the adjourned date would be covered by Rule 2 of Order XVII, C.P.C. and whether the Court has jurisdiction to pass an order under Rule 3 of Order XVII, C.P.C.'

is answered by holding that such a case would be covered by Rule 2 of Order XVII, and the Court has no jurisdiction to pass an order under Rule 3. Rule 3 applies when the party is present or deemed present but has defaulted in doing the acts mentioned in that Rule.

70. In Civil Revision No. 356 of 1970 the question of law referred to the Full Bench is--

'Whether an application moved for adjournment of a case is an application contemplated by and within the meaning of the Explanation added by this Court to Order XVII, Rule 2, C.P.C.'

71. Section 64 of the Code of 1882 (like Order V, Rule 1 (2) of the present Code) provided that a defendant may appear inter alia, by a person duly instructed and able to answer all material questions relating to the suit. In view of this provision several decisions--

Shankardat Dubey v. Radha Krishna, (1898) ILR 20 All 195;

Soonderlal v. Goorprasad, (1899) ILR 23 Bom 414;

Lalta Prasad v. Nand Kishore, (1900) ILR 22 All 66 (FB).

held that if the pleader was instructed only to apply for an adjournment, he was not duly instructed and able to answer all material questions relating to the suit, and so it could not be held that the party had appeared. This meant that a party got two innings to satisfy the court that he had sufficient cause for non-appearance, and hence for an adjournment, first at the date of hearing through a counsel, and then, failing that attempt, through an application for setting aside the ex parte order or decree. To suppress this mischief this Court in 1926 added the following Explanation to Rule 2 of Order XVII--

'Explanation.-- No party shall be deemed to have failed to appear if he is either present or is represented by an agent or pleader though engaged only for the purpose of making an application'.

72. As far as I have been able to see there has never been, since the Explanation came, any controversy that an application for adjournment is within its ambit. In Gopal Singh v. Kailash Gir : AIR1933All652 a Division Bench held--

'Various rulings have been shown to us : Ram Charan Lal v. Raghubir Singh (AIR 1923 All 551), Bakko Singh v. Chha-ju Singh : AIR1931All703 and Man Mohan Das v. Krishna Kant Singh : AIR1933All41 . In each of these cases there was an appearance by a pleader on behalf of the party and the making of an application for adjournment by that pleader. Under the Explanation which has been added by this Court to Rule 2, Order XVII, that appearance for a limited purpose is appearance on behalf of the party and therefore under that Rule the party is represented in court by that pleader not only for the limited purpose but for the purpose of the case and therefore the party cannot claim to have been absent on that date.'

This view was affirmed in Mst. Jaggo v. Kanhaiya Lal : AIR1957All344 (supra).

73. The Bench in Gopal Singh's case : AIR1933All652 however, went on to observe--

'We consider that a distinction is to be drawn between the case of a pleader who states that he has no instructions and the case of the pleader who states that he has instruction for a limited purpose of making application for adjournment etc. We consider that the case of a pleader who says he has no instructions does not come under the Explanation to Rule 2 of Order XVII. If we were to hold otherwise and accept the argument of the learned counsel for the respondent, we would be holding that it was impossible for a pleader who wishes to withdraw from a case to do so, and we do not consider that there is any authority under this Explanation to the Rule or otherwise for such a proposition.'

74. This distinction has been noticed in Juggi Lal Kamla Pat v. Ram Janki Gupta : AIR1962All407 . In this case the counsel had moved an application for adjournment on a day prior to the fixed date. On the fixed date he appeared and stated that he had no instructions to press the application moved by him earlier. He then withdrew from the case. It was held that it cannot be said that counsel had appeared for a party for the purpose of moving or pressing an application.

75. The consistent opinion in this Court is that an application for adjournment is within the purview of the Explanation to Rule 2 of Order XVII. The question of law referred in Civil Revision No. 356 of 1970 is accordingly answered in the affirmative.

76. Order IX, Rule 13, authorises the defendant to apply to the court by which the decree was passed for an order to set it aside 'in any case in which a decree is passed ex parte against a defendant'. Order IX, Rule 6 (1) (a) entitles the court to proceed ex parte where the plaintiff appears and the defendant does not appear when the suit is called on for hearing.

77. There is considerable divergence of opinion in this Court on the significance of the clause 'in any case in which a decree is passed ex parte against a defendant'. Several views have been expressed:--

(1) If the order passing the decree is actually made by the court under Order XVII, Rule 3, it must be taken on its face, and the only remedy is by way of appeal -- See Faiyaz Khan v. Mithan : AIR1954All222 .

(2) Though the label and description given by the court to its action is not decisive, the order as a whole should be construed to find if the court acted on the view, whether right or wrong, that one party appeared but the other failed to appear. The Full Bench decision in Lalta Prasad v. Nand Kishore (1900) ILR 22 All 66 (FB) (supra) is the leading case for this view.

(3) If facts on basis of which the court proceeded under Order XVII, Rule 3, are such that an order under Rule 2 could be justified, the order can be treated as one under Rule 2 : (See Munnalal v. Jai Prakash : AIR1970All257 .

(4) The court's attempt to decide the case on merits on the view that parties have appeared cannot prevent a party from seeking proper remedy. If he proves his absence, the court's order will be presumed or construed to be ex parte : See Ram Adhin v. Ram Bharose : AIR1925All182 (supra) and the cases cited in it.

78. The first of the aforesaid views was based on the ground that it has, firstly, the merit of practical convenience, because it leaves the litigant in no doubt as to where his remedy lies. In the next place, it was said to be sound in principle, because what has to be considered is the powers vested in the Judge who decided the suit; and if in deciding it he purported to act under Order XVII, Rule 3, he would have no jurisdiction to set aside the decree which he had passed, under Order IX, Rule 13. His order may be wrong, but so long as it stands he has no power to alter it. This view expressed by Mootham, C. J. in Faiyaz Khan's case : AIR1954All222 was considered and rejected by a Full Bench of this Court in Munna Lal v. Jai Prakash : AIR1970All257 (supra). Dealing with the ground of convenience, the Full Bench observed--

'The consideration mentioned by Mootham, C. J. in Faiyaz Khan v. Mithan that it was important that the litigant should be in no doubt as to where his remedy lies is outweighed by the consideration that, if the defaulting party is compelled to file an appeal it will result in unnecessary delay and expense to the parties'.

The Full Bench went on to observe--

'If an order, in law and substance, Is an order under Order IX, though purported to be passed under Order XVII, Rule 3, it would cause much unnecessary expenditure of time and money of the aggrieved party if he is compelled to file an appeal instead of an application for restoration. In the appeal which will be against the decree, a court-fee will have to be paid according to the valuation and the subject-matter of the suit. It is well known that an appeal takes much longer time for disposal than an application for restoration : then the scope of the appeal would be very limited. Obviously, in a majority of such appeals, the decree will not be challenged on the merits as the evidence if any would be one-sided. Such appeals will mainly be on the ground that the trial court should have proceeded under Order XVII, Rule 2, read with Order IX and not under Order XVII, Rule 3. If the appellate court allows the appeal, it will set aside the decree on the ground that the trial court was not justified in proceeding under Order XVII, Rule 3, and remand the case. If the trial court then does not pass an order under Order IX, the defaulting party will obtain restoration without even having to satisfy the court that it had a reasonable cause for its default. But if it passes an order under Order IX then the defaulting party will be entitled to file an application for restoration under Order IX. Thus the parties would still be in the same position as they would have been if the defaulting party had been originally permitted to file a restoration application and had not been compelled to file an appeal. The time, labour and money spent on the appeal will be to no one's advantage.'

79. These observations effectively demolish the reason that the first view has the merit of giving the litigant a certainty as to where his remedy lies.

80. The second given reason is what has to be considered is which power has the Judge purported to exercise. Odder IX, Rule 9, says 'where a suit is wholly or partly dismissed under Rule 8'; it does not say 'where a suit is wholly or partly purported to be dismissed under Rule 8'. Similarly, Order IX, Rule 13, provides : 'In any case in which a decree is passed ex parte against a defendant.' The provision is not 'In any case in which a decree is purported to have been passed ex parte against a defendant'. The view that what has to be seen is as to under what provision the court purported to act may be sound where the court has a choice. As will be seen a little later, the amended provisions leave no discretion. They are mutually exclusive.

81. I am clear that the first view does not lay down correct law.

82. The leading case in support of the second view is the Full Bench decision in Lalta Prasad v. Nand Kishore (1900) ILR 22 All 66 (FB) (supra). In that case the Full Bench decided the appeal itself and not a formulated question of law. The order dismissing the suit ultimately stated--

'Therefore it is ordered that the claim be dismissed for default of appearance and for want of prosecution with costs.'

83. The Full Bench considered the entire order and the circumstances in which it was passed and said that--

'We construe that order as an order passed under the earlier portion of Section 157 of the Code'.

namely, an order of dismissal for default of appearance of the plaintiff. That was sufficient to decide the case, but the Full Bench went on to make obiter observations as to the meaning of the opening words of Section 103 (equivalent to Order IX, Rule 9 of the present Code) of the Code : 'When a suit is wholly or partially dismissed under Section 102'. Strachey, C. J. observed--

'Is it a dismissal under Section 102 merely if the order says that it is passed under Section 102? or, is it only a dismissal under Section 102, if irrespective of the language of the order, the suit was dismissed upon actual non-appearance of the plaintiff in fact or law? or, is it dismissal under Section 102 if, apart from the mere description which the court gives of its action, and apart from the actual fact of the plaintiff's appearance, or non-appearance, the real meaning and substance of the court's action is that it dismisses the suit on the view, whether right or wrong, that the defendant appears and the plaintiff does not appear.'

His Lordship then held that the third' of these views is the correct one, and observed--

'The mere naming of the section is not conclusive though, no doubt, it may be a useful piece of evidence in construing the order, which must be read and construed as a whole. But, although the court may describe an order of dismissal as being made under Section 102, the order, taken as a whole, may show that the description is an error, and that the court was not really dismissing the suit on the view that the plaintiff was not appearing. So, too, if Section 102 is not named, and even if some other section, whether Section 158 or any other, is named, still it may be that that is a mere misdescription, and that nevertheless the real reason for the dismissal is that in the court's view the defendant appears and the plaintiff does not appear. In such a case, notwithstanding the misdescription, there is in substance and in fact a dismissal of the suit for non-appearance of the plaintiff and therefore a dismissal under Section 102, although that dismissal may be absolutely wrong, either because the court was mistaken in supposing that the plaintiff did not appear or for any other reason.''

In effect, the order should be construed to find the court's view its correctness is not to be questioned.

84. This view is no more appropriate. The Full Bench proceeded on the footing that a party cannot be said to have appeared if his counsel only applied for an adjournment and then withdrew. This position does not obtain in this High Court since 1926 when the Explanation was added to Order XVII, Rule 2. In the next place, there was considerable body of opinion that Section 158 of the Code of 1882 (equal to Order XVII, Rule 3, of the present Code) could apply and the court could decide on merits even if a party was not present. That is why the necessity arose to construe the order to find the true intent of the court. After the amendment of Rule 3 in 1953 the court has, in law, no choice. Now the position is that where a party is absent Rule 3 cannot apply and action can only be taken under Rule 2.

85. Another reason which weakens this view point is that it leaves the aggrieved party in a state of uncertainty. Experience is that courts often use terms like 'dismissed for want of prosecution', or 'dismissed for default', which, as pointed out in Mst. Jeggo v. Kanhaiya Lal : AIR1957All344 (supra) are vague and can mean default of appearance as well as default of producing evidence etc. These expressions only confuse the aggrieved party as to what his remedy is. Often the courts do not mention the provisions under which they are disposing of the suit. The job of interpreting a vague order is no easy one,

86. The Full Bench in Munna Lal v. Jai Prakash : AIR1970All257 (supra) approved the Full Bench decision in Lalta Prasad v. Nand Kishore, (1900) ILR 22 All 66 (FB) (supra). But the actual decision in Munna Lal's case is somewhat at variance with the view taken in Lalta Prasad's case. In Munna Lal it was held--

'..... if the facts, on the basis of which the court has proceeded under Order XVII, Rule 3 are such under which an order under Order XVII, Rule 2, read with Order IX would be legally justified and the order actually passed is also one which could be legally passed under Order IX, it is permissible to hold that the order is an order under Order IX and that an application under Order IX, Rule 9 or 13, as the case may be, lies.'

87. The decision in Munna Lal : AIR1970All257 suggests that the court is entitled to look at the facts el-ready on record on the basis of which the court proceeded under Order XVII, Rule 3, and come to its own conclusion that the aggrieved party had failed to appear. If it finds this, it will say that an order under Order IX could be legally passed, and the restoration application is maintainable.

88. The disparity in the two Full Benches is :

Lalta Prasad (1900) JLR 22 All 66 (FB) confines one to the previous order. That order can be construed as a whole to see if Court held the party absent. The Court cannot review that finding.

Munna Lal : AIR1970All257 permits a reconsideration of facts and entitles court to come to its own conclusion whether the party was absent

But Munna Lal : AIR1970All257 confines the court to facts 'on the basis of which the court proceeded under Order XVII, Rule 3'. Obviously, consideration of additional evidence, say, to prove absence, is ruled out.

89-92. The Full Bench in Lalta Pra-sad's case, (1900) ILR 22 All 66 (FB) was considered in Ram Adhin v. Ram Bharose : AIR1925All182 (supra). Dalai, J. observed--

'The respondent's learned counsel argued that once the court passing the decree purported to act under Order XVII, Rule 3, this Court was bound by such action and must accept that the decree was passed under that Rule. In support of this contention a Full Bench ruling in the case of Lalta Prasad v. Nand Kishore, ((1900) ILR 22 All 66) (FB) was quoted. In that case the point did not really arise.'

His Lordship went on to hold--

'We were referred to certain observations of the learned Chief Justice that though the naming of a section is not conclusive it may be a useful piece of evidence in construing the order which must be read and construed as a whole. This opinion does not imply that when a court has acted under a wrong section or quoted a wrong section, the party complaining against that order cannot take action as if the correct procedure had been adopted. It would be interesting to note that Mr. Justice Banerji was a party to the Full Bench ruling and was also the Judge who delivered the judgment which we have already referred to and which is reported in Rukam v. Tara Chand (AIR 1922 All 68). We have quoted from that judgment to indicate that learned Judge's opinion that a court must be presumed to have passed such order as it could pass according to law, whatever section it may have mentioned in its order'. In Rukam's case Mr. Justice Banerji held that when one of the parties was absent the proper order would be one under Order XVII, Rule 2, and the order must be construed to be one passed under that Rule, although it purports to be an order of dismissal or decree on merits, Mukerji, J, entirely agreed with Dalai. J. He observed--

'It has been said that where in spite of the fact that one of the parties to a suit is absent the court proceeds to decide the case on the merits and not according to the actual circumstances of the case, namely, one of the parties is absent, the remedy of the absent party by an application either for re-hearing or for restoration is barred, and his only remedy is by way of an appeal.

It is therefore admitted that there is a remedy. This question is which is the proper remedy. I will take an extreme case. Say a defendant obtained time to produce his witnesses. On the date fixed for hearing he did all he could do to arrive at the court in time, but there happened to be a railway accident and he and his witnesses were delayed. Where is he to prove the fact? It must be conceded that the defendant was prevented by a sufficient cause from appearing and he must have a redress. But if the remedy is by way of appeal, will he be expected or will he be allowed to produce evidence in the appellate court to prove that he had a sufficient reason for his non-appearance? Will the appellate court entertain fresh evidence or will it dispose of the appeal on merits as recorded on the file of the trial court? Clearly then the remedy, if one is not denied to the absent party, would be by an application to the court of first instance and not by way of an appeal'.

Then his Lordship went on to hold--

'The act of the court, namely, its attempt to decide the case on the merits, cannot prevent a party from seeking his proper remedy.'

93. This was expression of the fourth view mentioned by me above. The observations made in the Full Bench case of Lalta Prasad ((1900) ILR 22 All 66) (FB) were held obiter and were not accepted. This view was accepted by Malik, C. J. speaking for the Division Bench in Qudrutullah v. Mohammad Kasim Khan : AIR1952All208 (supra). His Lordship, after referring to Ram Adhin's case : AIR1925All182 said--

'Where a party has failed to appear the court, if it decides to proceed to dispose of the suit, must be deemed to have decided ex parte. On the whole, we consider it is more satisfactory, as a party, who did not appear, will in that case get an opportunity of placing materials before the court, setting out reasons for his absence and his inability to appear. The court, whenever it is not satisfied that there was sufficient reason for such absence, will no doubt properly deal with the application without being functus officio and unable to decide the question even if there was good ground for absence'.

94. Order IX, Rule 9, as well as 13, confer a right on a party as well as jurisdiction on the court to set aside an earlier order or decree ii it is passed under Rule 8, or if the decree is ex parte, that is, when the plaintiff or the defendant, as the case may be, had failed to appear. The jurisdictional fact for a proceeding under Order IX, Rule 9 or 13, is the absence of a party. The Court cannot refuse to see if the jurisdictional fact is established. The aggrieved party has a right to apply for an opportunity to prove the fact that he was absent. The plea that since he was absent, any finding given behind his back that he was present or deemed present cannot be conclusive against him, seems well founded. The previous order will be seen in the light of the facts existing on the record and also the materials if any now placed by the parties.

95. This view has the merit of practical convenience, because it gives the aggrieved party certainty of his remedy. If his case is that he was absent, his remedy is under Order IX, Rule 9 or 13. It avoids his going to en appellate court to prove that he was absent and the trial court's disposal of the suit on the merit was wrong; and then coming back to the trial court to satisfy it that he had sufficient cause for non-appearance. The various amendments of the relevant provisions of the Code, in my opinion, seek to avoid this long winded end tortuous course of litigation.

96. The view of Mukerji, J. in Ram Adhin's case, : AIR1925All182 that the act of the court, namely, its attempt to decide the case on the merits, cannot prevent a party from seeking his proper remedy, is, with respect, the appropriate approach. An application under Rule 9 or 13 is maintainable if it is based on the ground that the applicant had failed to appear. The court seized of such an application has to see if this plea is proved. The court will consider the evidence led before it as also the facts appearing from the record including the previous order, and come to its own conclusion whether that plea is established. It it is satisfied that this plea has been proved, it acquires jurisdiction to look into the cause of non-appearance and to set aside the order or the decree only if the cause shown for the absence was sufficient. It is a consequential thing to say that if the court is satisfied that the party was absent then it will construe the order to rbe one passed under Rule 2, as said in Rukam's case (AIR 1922 All 68), or that the court must be deemed to have decided ex parte, as observed in Qudrutullah, or to treat the order as one passed under the right Rule-- vide Mat. Jaggo v. Kan-haiya Lal : AIR1957All344 and Murina Lal v. Jai Prakash : AIR1970All257 .

97. On facts, the position in the appeal is that the defendants do not dispute that 1-8-1969 was an adjourned date and that on that day their counsel moved an application for adjournment. In view of the Explanation to Rule 2, the defendants will be deemed present. The defendants having failed to establish that they were absent, could not maintain the restoration application.

98. In the present case it has already been seen that on 1-8-1969 the proceedings were not ex parte, because the defendants were deemed to be present. That day the court recorded the evidence adduced by the plaintiff. It heard the plaintiff's counsel, and thereafter fixed 2-8-1969 for judgment. It was urged that since on 2-8-1969 the defendant was absent, the decision on that day will be a decree passed ex parte.

99. I am unable to agree. Order IX, Rule 1, C.PC, provides for the suit being heard on the date fixed in the summons for the defendant to appear and answer unless the hearing is adjourned to a future date fixed by the court. Similarly, under Order XVII, Rule 1, the court can from time to time adjourn the hearing of the suit and fix a day for the further hearing of the suit, Order XVII, Rule 2, authorising the court to proceed ex parte under Order IX, governs the day 'to which the hearing is adjourned'.

100. The question is if after recording evidence and hearing the parties the court fixes a date for delivery of judgment, is such a date for further hearing within meaning of those provisions?

Section 33, C.P.C. provides-

'The court, after the case has been heard, shall pronounce judgment, and on such judgment, a decree shall follow'.

This section makes a distinction between the hearing of a case by the court on the one hand, and the pronouncing of the judgment by the court after the hearing The pronouncing of judgment is not part of the hearing of the case. It is an event which happens after the hearing is over and completed. Therefore, when the court, after recording whatever evidence is available, fixes a date only for delivery of judgment, such a date is not for hearing or for further hearing within meaning of Order IX, Rule 1, or Order XVII, Rule 1, to which Rule 2 of Order XVII may apply. The fact that the defendant did not appear on 2-8-1969 will not make the decree passed by the court on that day a decree passed ex parte against the defendants. It was a decree passed after a hearing on the merits, with the result that an application under Order IX, Rule 13, C.P.C. for its setting aside was not maintainable. The application was rightly dismissed. The appeal has no substance.

101. To sum up. The answer to the question referred in Civil Revision No. 801 of 1968 is that the mentioned case is covered by Rule 2 of Order XVII and an application under Order IX, Rule 13, will lie even if the Court professes to act under Rule 3. Rule 3 applies only when a party is present or is deemed to be present and has defaulted in doing the acts mentioned in Rule 3.

102. The answer to the question referred in Civil Revision No. 356 of 1970 is in the affirmative.

103. The appeal (F. A. F. O. 329/ 70) is dismissed with costs.

H.N. Seth, J.

I agree.

C.S.P. Singh, J.

In all these three cases questions relating to the interpretation of Order XVII, Rules 2 and 3 of the Code of Civil Procedure have been referred to this Bench, The question referred in Civil Revision No. 801 of 1968 and F. A. F. O. No. 329 of 1970 is identical and is as follows:--

'Whether a case in which the defendant obtains an adjournment on the date of final hearing of the suit, and fails to appear on the adjourned date would be covered by Rule 2 of Order XVII, C.P.C. and whether the court has jurisdiction to pass an order under Rule 3 of Order XVII C.P.C.?'

In Civil Revision No. 366 of 1970, the question referred is :

'Whether an application moved for adjournment of a case: is an application contemplated by and within the meaning of the Explanation added by this Court in Order XVII, Rule 2, C.P.C. '

Such facts as are necessary for answering these questions may be shortly stated in each of the cases.

104-106. In Civil Revision No. 801 of 1968, the facts are these. The plaintiffs who are the opposite parties in the revision, filed a suit for ejectment of the defendant, who is the revisionist. Issuesin the suit were framed on 3-9-1964 and20-11-1964 was fixed for final hearing. On20-11-1964, the suit was adjourned at theinstance of the defendant to 3-12-1964,The case was again adjourned to 18-12-1964 on the application, of the defendant.When the case was called up on 18-12-1964, the defendant was absent and thetrial court after recording the plaintiff'sevidence decreed the plaintiff's suit afterdiscussing all the issues on merits. An application was moved by the defendant on22-12-1964 under Order IX, Rule 13,C.P.C. for setting aside the ex parte decree. This application was dismissed bythe Munsif on the ground that it was notmaintainable as the order had been passed under Order XVII, Rule 3, C.P.C. Afterthe dismissal of this application, the defendant filed a regular first appeal, whichfailed. A second appeal against this decision was dismissed by this Court on 16-11-1965. In view of certain observations madeby this Court while dismissing the secondappeal, the defendant filed an appealagainst the order of the Munsif dated10-3-1965 rejecting his application underOrder IX, Rule 13, C.P.C. This appeal wasdismissed by the Additional Civil Judgeon 27-3-1968, Thereafter, the defendantfiled the aforesaid revision. One of us,after referring to the Full Bench decisionin Munna Lal v. Jai Prakash : AIR1970All257 noticedthat in large number of cases which werereferred to in Rameshwar Prasad v. Rajasthan Govt. : AIR1962All515 , theview had been taken that if the adjourned date was fixed at the instance of thedefaulting party, then Rule 3 of OrderXVII, C.P.C. would be attracted. He wasof the view that the decision in Rameshwar Prasad v. Rajasthan Govt. (supra)required reconsideration and referred thematter to a larger Bench. The matter wasthen listed before a Division Bench. Inview of the apparent conflict between thedecisions of Qudrutullah v. MohammedKasim Khan : AIR1952All208 and SriKrishen v. Radha Kishen : AIR1952All652 , the Bench referred the question already extracted above, for considerationby a larger Bench.

107. In F. A. F. O. No. 329 of 1970, the Court had decided a preliminary issue and thereafter, the suit was directed to be listed for final hearing on 1-5-1965. The case was not taken up on that date and 8-7-1969 was fixed. On this date, the defendant applied for and obtained adjournment and the case was then fixed for 1-8-1969. On this date, an application for adjournment was filed through a counsel. This application was dismissed and thereafter, the counsel stated that he had no instruction and withdrew from the suit. The trial court thereafter purported to proceed under Order XVII, Rule 3, C.P.C. and decreed the suit. The defendant filed an application under Order 9, Rule 13, C.P.C. but this was dismissed on the ground that the suit had been decreed under Order XVII, and as such the decree could not be set aside under Order IX, Rule 13, C.P.C. Thereafter, a First Appeal from Order was filed in this Court. Since in the view of the Bench, the question that arose for decision was identical with that which had been referred to a larger Bench in Civil Revision No. 801 of 1968, the Bench referred an identical question for decision by a larger Bench.

108. In Civil Revision No. 366 of 1970, the suit had been fixed for final hearing on 2-4-19-68. On this date, counsel for the plaintiff moved an application for adjournment of the case on the ground that the plaintiff was ill. The application was rejected and thereafter the counsel stated' that he had no instruction. The suit was then dismissed. An application for restoration moved under Order IX, Rule 9, C.P.C. was dismissed. An appeal against this order was also dismissed on the ground that Order IX, Rule 9, C.P.C. did not apply. When the matter came to be heard in revision by a learned Single Judge of this Court, he referred to the decision in Juggi Lal Kamla Pat v. Bam Janki Gupta : AIR1962All407 , where the view taken was that in a case where counsel withdrew after moving an application for adjournment, the case would not be covered by Order XVII, Rule 3, C.P.C. and the decision given in Pitamber Prasad v. Sohan Lal : AIR1957All107 where it was held that dismissal even in such cases could be dismissal on merits and Order XVII, Rule 3 of the Code of Civil Procedure was attracted. The learned Single Judge was not inclined to agree with the view taken in Pitamber Prasad v. Sohan Lal : AIR1957All107 (supra), and inasmuch as by that time a reference had already been made in P. A. F. O. No. 329 of 1970, he referred the question which has been extracted above for decision toy a larger Bench. The Division Bench before which the reference came up in its turn referred the matter to a Full Bench, and this is how this matter has now come up before this Bench.

109. The problem posed in this case is convoluted by the interplay of Order IX and Order XVII, C.P.C. and before we refer to the various cases which have, occasioned this reference, we think it appropriate to refer to the provisions of Order IX and Order XVII, C.P.C. Order IX, C.P.C. requires appearance of parties on the date fixed in the summons, either in person or by the respective pleaders, and the suit has to be heard on that date unless adjourned. Under Order IX, Rule 2, C.P.C. the suit of the plaintiff has to be dismissed in case the defendant has not been served with summons in consequence of the failure of the plaintiff to pay the court fee or postal charges for such service. In case, however, the defendant appears, the suit has to be heard. By amendment introduced by this Court to this Rule, the suit can be dismissed also in case the plaintiff has failed to comply with the Rules for filing a copy of the plaint for service on the defendant. Order IX, Rule 3, C.P.C. entails the dismissal of the suit in case none of the parties appear. The dismissal of the suit under Order IX, Rule 2 or 3 does not preclude the plaintiff from filing a fresh suit or from filing an application for setting aside the dismissal (See Order IX, Rule 4). The plaintiff's suit can also be dismissed in case the plaintiff fails to take up fresh summons for service on unserved defendant within a period of three months (Order IX, Rule 5, C.P.C.). Dismissal under this Rule, however, does not debar the plaintiff from bringing a fresh suit (See Order IX, Rule 5 (2), C.P.C.). Under Order IX, Rule 6, if on the date fixed for hearing in the suit, the plaintiff appears, and if it is proved that the summons were duly served, the Court may proceed ex parte. In cases where summons have not been duly served, or not served within time, fresh summons have to be taken out by the plaintiff for service on the defendant. Under Order IX, Rule 8 in case the defendant only appears, the suit of the plaintiff is to be dismissed unless the defendant admits the claim or part thereof, in which case the suit is either wholly or partly decreed. Order IX, Rule 9 mitigates the rigor of dismissal under Order IX, Rule 8, by permitting the plaintiff to file an application for setting aside the dismissal. It, however, bars the bringing of a fresh suit, and strikes a note of departure from the provisions of Order IX, Rules 4 and 5. Order IX, Rule 11 permits the Court to proceed ex parte where out of several defendants only some of them appear on the date of hearing. Order IX, Rule 13 gives a right to a defendant to apply for setting aside an ex parte decree. It will he convenient at this stage to refer to Order III, Rule 1, C.P.C. By virtue of this provision, any appearance, application or act in or to any Court, authorised to be done by a party may be done by the party in person, or by his recognised agent or by a pleader appearing, applying or acting on his behalf. Coming now to Order XVII, Rule 1, it empowers the Court on sufficient cause being shown to grant time to parties, and from time to time adjourn the hearing of the suit. Order XVII, Rules 2 and 3 as amended by this Court require to be extracted in extenso :--

'XVII (2). 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.''

'Where the evidence, or a substantial portion of any party has already been recorded and such party fails to appear on such day, the Court may in its discretion proceed with the case as if such party were present, and may dispose of it on the merits.

Explanation:-- NO party shall be deemed to have failed to appear if he is either present or is represented in Court by agent or pleader, though engaged only for the purpose of making an application.'

'XVII (3). Where (in case in which Rule 2 does not apply), any party to a suit to whom time has been granted fails 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, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.''

110. Questions which have been referred to us and which have required consideration by this Court earlier, have arisen mainly due to the difficulty as to whether an order dismissing or decreeing a suit in the absence of parties, is one to which the provisions of Order IX, Rule 9 or Order IX, Rule 13 are attracted or not As we have already pointed out, there is considerable authority on this point and it will be useful to refer to such cases as throw light on this controversy.

111. It would be convenient to refer firstly to the cases which have occasioned this reference. In Qudrutullah v. Mohammad Kasim Khan : AIR1952All208 , a date for final hearing was fixed, but the case could not be taken up on that date as the Court had no time and another date was fixed. On the adjourned date, the plaintiff produced his evidence and thereupon the defendant was directed to lead evidence in defence. On the request of the defendant, the case was directed to be taken up after lunch. The defendant thereupon filed an application alleging that he had been misled by talks of compromise and, therefore, could not summon his witnesses. The case was, thereafter, adjourned for another date. The defendant was again absent and had not summoned any witness for that date. The Judge thereafter decided the suit. An application under Order IX, Rule 13, C.P.C. was rejected on the ground that the suit had been decided under Order XVII, Rule 3. The matter thereafter came up before this Court by way of an appeal. At that time, Order XVII, Rule 2, C.P.C. was in the same form as it now stands. The Bench held that apart from cases covered by the Explanation added to Order XVII, Rule 2, C.P.C., a decision in the absence of a party who has failed to appear must be deemed to have been decided ex parte. In Sri Krishen v. Radha Kishen : AIR1952All652 , an application under Section 33, Arbitration Act for setting aside an award was made and this application was allowed ex parte. The ex parte order was later on set aside and a fresh date for final hearing was fixed. Various adjournments were thereafter given at the instance of the applicants and 19-5-1947 was fixed for hearing. On this date, the plaintiff-applicant was absent and the defendant was present. The suit was then dismissed under Order XVII, Rule 3, C.P.C. After the dismissal of the suit, the plaintiff-applicant applied for setting aside the ex parte order, but that application was dismissed on the ground that no such application lay as the case had been decided under Order XVII, Rule 3, C.P.C. On appeal, it was held that where time had been taken by a party for purposes of taking steps necessary for the prosecution of the suit, if it fails to appear on the adjourned date, the court has jurisdiction to pass an order under the provisions of Order XVII, Rule 3, C P.C. Such an order under the Rule can be passed even though the plaintiff is absent on the date of hearing. As a result, it was held that an application for restoration was not maintainable. It will be noticed that while in Qudrutullah's case (supra), it is laid down that in cases where one of the parties fails to appear, even on an adjourned date, the decision must be treated to be one which is under Order XVII, Rule 2, C.P.C. In the case of Sri Krishen v. Radha Kishen (supra), the view seems to be that the order passed would be one under Order XVII, Rule 3, C.P.C. unless the Court itself decided to pass the order under Order XVII, Rule 2. In Rameshwar Prasad v. Rajasthan Government : AIR1962All515 , the suit had been adjourned at the instance of the defendant. On the date fixed for hearing, the defendant applied for adjournment. The application was partly allowed in so far as another date was fixed for the defendant's evidence, while the plaintiff's evidence was recorded on that very date. The defendant's counsel wanted time till lunch for cross-examining the plaintiff's witnesses and this was granted. When the case was taken up after lunch, the defendant's counsel stated that he had no instruction. The case was then adjourned to 24th July, 1956 but the defendant did not appear on that date, and the suit was then decided on merits. An application for setting aside the ex parte order was dismissed on the ground that the case had been decided under Order XVII, Rule 3. The matter then came up in revision before a learned Single Judge of this Court After noticing the decisions in the cases of Ram Adhin v. Ram Bharose : AIR1925All182 , ILR 45 All 618 = (AIR 1923 All 551), Rukam v. Tara Chand (AIR 1922 All 68), Gulab v. Madhusudan Lal : AIR1949All221 , Qudrutullah v. Mohammad Kasim Khan : AIR1952All208 , Sri Krishen v. Radha Kishen : AIR1952All652 , Faiyaz Khan v Mithan : AIR1954All222 , Mst. Jagga v. Kanhaiya Lal : AIR1957All344 , Dildar Husain v. Abdul Moid : AIR1957All238 and Radhey Shyam v. Ghasita (1958 All WR (HC) 76) and specifically referring to the decisions in Qudrutullah v. Mohammad Kasim Khan : AIR1952All208 , Sri Krishen v. Radha Kishen : AIR1952All652 and Faiyaz Khan v. Mithan : AIR1954All222 , it was held that Rule 2 applied to cases where the suit is adjourned not on the motion of the defaulting party. In cases where the date of hearing was fixed on the motion of the party, who has subsequently failed to appear, the proper rule to apply would be Rule 3 and not Rule 2. The learned Single Judge in this case was of the view that Rule 2 applies only to such cases as are not covered by Rule 3. In Juggi Lal Kamla Pat v. Ram Janki Gupta : AIR1962All407 , the hearing of the suit had been adjourned by the Court suo motu and also at the instance of the parties. The latter adjournment in the suit had been obtained by the parties. The case was transferred to another Court and 23-5-56 was fixed for final hearing. A day earlier, an application was filed for adjournment on behalf of the plaintiff on the ground that the senior counsel of the plaintiff was not available. This application was taken up on 23-5-56 i. e. on the date of hearing and was rejected. Another application was moved on the same date and the Court directed this to be put up on the next date i. e. 24-5-56. It also directed that the parties should come prepared with their evidence. On 24-5-56, counsel for the plaintiff stated that he had no instruction to press the application for adjournment and the adjournment application was accordingly rejected. The suit was then dismissed for default of the plaintiff. An application for restoration was moved but this was rejected on the ground that the application was not maintainable as the suit had been dismissed under Order XVII, Rule 3, C.P.C. A Bench of this Court following an earlier decision of this Court in Gopal Singh v. Kailash Gir : AIR1933All652 held that where a counsel stated that he has instruction for a limited purpose i. e. for making an application for adjournment, the case would not be covered by the Explanation to Order XVII, Rule 2, C.P.C. It was also held on the strength of a Privy Council decision in Radha Kishen v. Collector of Jaunpur, ((1901) ILR 23 All 220) (PC) that where a counsel makes a statement on the date of hearing that he had no instruction, the party whom he represents cannot be deemed to have put in appearance. Ultimately, the Bench took the view that inasmuch as time was granted to the plaintiff not for doing any act as envisaged by Order XVII, Rule 3, the case was not covered by that Rule, and as such the order dismissing the suit must be treated as one passed under Order IX, Rule 8. In Pitambar Prasad v. Sohan Lal : AIR1957All107 , a date was fixed for final hearing. The plaintiff got the suit adjourned to 17-2-1950. On that date, an application was made for adjournment on the ground of illness. This application was rejected, and thereafter counsel for the plaintiff stated that he had no further instruction. The Court then dismissed the suit for want of prosecution. An application for restoration moved under Order IX, Rule 9 was dismissed by the trial court on the ground that the order was one which was passed on merit under Order XVII, Rule 3. On appeal to this Court, it was held that in spite of counsel withdrawing from the case, the plaintiff would be deemed to be present in view of Explanation to Rule 2, and the order of dismissal of the suit fell under Order XVII, Rule 3, and this being so, no application under Order IX, Rule 9 was maintainable. Incidentally, in this case, the conflict between Qudrutullah's case : AIR1952All208 and Sri Krishen v. Radha Kishen : AIR1952All652 was noticed, but the Bench took the view that in view of amendment to Rule 3, the conflict no longer survived. It also held that Rule 3 applied only when the party concerned is present on the adjourned date or is deemed to be present under Explanation to Rule 2, and he fails to do the things for which the adjournment was granted to him. We now think it necessary to refer to some later decisions of this Court which show the more recent approach to the problem. It will be convenient to notice a Full Bench decision of three Judges in the case of Munna Lal v. Jai Prakash : AIR1970All257 . In that Full Bench, the question was whether a decision recorded specifically under Order XVII, Rule 3 of the Code of Civil Procedure would exclude relief under Order IX, irrespective of the question as to whether in recording the decision under Rule 3, the Court acted rightly or wrongly. After referring to a number of decisions including Qudrutullah's case and Sri Krishen's case, the Full Bench relied upon an earlier Full Bench decision of this Court in Lalta Prasad v. Nand Kishore ((1900) ILR 22 All 65) (FB) and held that mere labelling of an order as one under Order XVII, Rule 3 was not decisive, and that if on the facts, the order was one under Order XVII, Rule 2 read with Order IX, an application under Order IX, Rule 13 would be maintainable. One of the reasons which weighed with the Full Bench, and if we may say so with respect rightly, that such a view was conducive to cutting short lengthy and costly litigation, which would be necessary in case the Court was bound by the mere labelling of the order, end could not go into the substance thereof.

112. In the case of Kesho Singh v. Om Prakash (1970 All LJ 189) issues had been struck in the case and the plaintiff led evidence and after the evidence was closed, the defendant filed an application for time to file certain papers. This appli-cation was allowed. Another application was made subsequently for further time. On this the Court passed an order to the effect that the plaintiff had already closed his evidence and time granted to the defendant was to expire on 27th July, 1967. No papers were filed by the defendant by 27th July. The trial court then fixed 8th August 1967 for final hearing. On that date, an application was made by the counsel for adjournment of the case. This application was rejected and the trial court recorded an order that the defendant's evidence had been closed. On the same date, the trial court decreed the suit ex parte on merits. An application filed by the defendant under Order IX, Rule 13, C.P.C. was rejected as not maintainable. An appeal filed before the lower appellate court was dismissed on the ground that though there was sufficient cause for absence of the defendant, the application was not maintainable as the order had been passed under Order XVII, Rule 2, C.P.C. The plaintiff had taken the plea the the application was not maintainable inasmuch as the decree had been passed under Order XVII, Rule 3, C.P.C. but this plea was not accepted by the lower appellate court. The Division Bench after referring to the decision of this Court in the case of Mst. Jaggo v. Kanhaiya Lal : AIR1957All344 and the decision of the Nagpur High Court in the case of Dayal Ji Wasanji v. Kedarnath Onkarmal & Co. (AIR 1953 Nag 222) held that inasmuch as the suit had not been decided forthwith i. e. on the date of the default of the defendant to file the relevant papers, Order XVII, Rule 3, C.P.C. did not apply. It then proceeded to consider as to whether the second part of Order XVII, Rule 2 applied, and held that inasmuch as the defendant had not led any part of his evidence, the second part of Order XVII, Rule 2, C.P.C. was inapplicable. Considering the fact that the trial court had itself in its order stated that the suit was decided ex parte, it held that the order was one which was passed under the first part of Order XVII, Rule 2, C.P.C. and the suit bad really been disposed of in the mode directed by Order IX, Rule 6 (1) (a). It also repelled the argument that in view of the Explanation added to Order XVII. Rule 2, the defendant must he deemed to have been present, and as such the provision of Order IX were not attracted, on the ground that even though the defendant may be in law deemed to be present, the Court appeared to have acted under Order IX, Rule 6, as if the defendant was absent. In view of this conclusion, it held that the application under Order IX, Rule 13 was applicable.

113. It will be noticed that the decision in Qudrutullah's case : AIR1952All208 does not fall in line with Sri Kri-shen's case inasmuch as while, it has been held in Qudrutullah's case that where a party is absent i. e. does not appear either personally or through counsel, the Court can proceed only under Order XVII Rule 2 while in Sri Krishen's case : AIR1952All652 it has been held that Order XVII, Rule 3 will also apply to cases where the party, which had under previous orders to do a particular act has failed to do so, is absent on the date of hearing. In Pitamber Prasad's case : AIR1957All107 (supra) the Division Bench took the view that the conflict in these two views stood resolved on account of amendment to Order XVII, Rule 3 by addition of the words 'where in a case in which Rule 2, does not apply', but we do not think that the amendment resolves the conflict, for on the principles laid down in Sri Krishen's case even after the amendment effected in Order XVII, Rule 3, a party who has defaulted to do a particular act, and who absents himself totally either by not appearing personally or through counsel, will come within the mischief of Order XVII, Rule 3. The reason being that on the dicta of Sri Krishea's case, it would be a party to whom time has been given to do a particular act, and who has failed to do the acts envisaged by Order XVII, Rule 3. For reasons which we shall hereinafter set out, we do not think that Sri Krishen's case which runs contrary to Qudrutullah's case was rightly decided on this aspect of Order XVII. The interpretation put on Order XVII in the case of Rameshwar Prasad v. Rajasthan Government : AIR1962All515 which is more or less on the same line as Sri Krishen's case does not appear to state the Law correctly.

114. It is not at this stage necessary to refer to the apparent conflict between the case of Juggi Lal Kamla Pat v. Ram Janki Gupta : AIR1962All407 and Pitamber Prasad v. Sohan Lal : AIR1957All107 as we propose to consider these cases and the Full Bench decision in the case of Munna Lal v. Jai Prakash, : AIR1970All257 as also the decisions in Kesho Singh v. Om Prakash (1970 AD LJ 189) at a later stage.

115. We now proceed to consider the true scope of Order XVH, Rules 2 end 3 so far a(r) it is relevant for the purposes of the present controversy. A perusal of Order XVII, Rule 2 as it now stands, makes it clear that it only applies to such cases where the parties or any of them fail to appear. In such an eventuality, the court can proceed in the modes directed by Order IX, or make such other orders as it thinks fit i. e. pass an order for adjournment or otherwise. In case, however, where a substantial portion of any parties' evidence has already been recorded, and such party fails to appear, the court is given discretion to proceed with the case as if the party was present and dispose it of on merits. In such an eventuality the provision of Order IX would not apply, for that is the statutory effect of the second part of Order XVII, Rule 2. On account of the explanation added to Order XVII, Rule 2, a party would be deemed to be present also in those cases where he is present personally or is represented by ,an agent or a pleader engaged for the purpose of making an application on accout of the fiction created by the use of the word 'deemed'. No limitation is put by the explanation on the nature of the application, and this being so, it would embrace an application for adjournment also. It is strange that the explanation creates a fiction also in cases where the party is actually present, for if a party is actually present, no question of resorting to a legal fiction arises as is sought to be created by the use of the words 'deemed' at all. The creation of legal fiction is necessary only in such cases where a fact does not actually exist, but the law assumes that it does exist. The words 'he is either present or' appear to us to be mere surplusages in the explanation. The result of the explanation, then is that if a party has engaged an agent or a pleader only for the purposes of making ail application, even if it be for the purposes of adjournment, the party on account of the fiction created by the Explanation is deemed to be present, and such cases would go outside the purview of Order XVII, Rule 2. This, however, does not mean that as soon as the case falls outside the purview of Order XVII, Rule 2, it would automatically come within the purview of Order XVII, Rule 3, C.P.C. This is clear from the phraseology of Rule 3, which details the specific defaults which occasion the applicability of the Rule. It only applies to such cases where time has been given to the defaulting party, who is either actually present or is deemed to be present, to either produce his evidence or to cause the attendance of his witness, or to perform any other act necessary to the further progress of the suit, and does not extend to oases which do not come within the ambit of these categories. Further Order XVII, Rule 3 does not apply to cases where the court does not decide the suit forthwith i.e . immediately on the date on which it is fixed. The view taken in Kesho Singh v. Om Prakash (1970 All LJ 189) on this aspect of the matter appears to us to be the correct enunciation of the law on the applicability of Order XVII, Rule 3, where the suit is not decided forthwith. It is also necessary to point out that Order XVII, Rule 3 applies only to such cases where the party is present or deemed to be present, for as we read Order XVII, Rule 2 and Order XVII, Rule 3, Order XVII, Rule 2 covers all cases where a party is totally absent i. e. neither present personally nor through counsel or deemed to be present as envisaged by the Explanation and the words 'in a case where Order XVII, Rule 2 does not apply' in Order XVII, Rule 3, rules out its applicability to cases where parties fail to appear, which cases are covered entirely by Order XVII, Rule 2. Further, we cannot find any justification on the phraseology of Order XVII, Rule 3 for the view taken in Sri Kishen's case : AIR1952All652 (supra) that Order XVII, Rule 3 will also apply to those oases where the defaulting party is one which has been directed to do one of the acts mentioned in Order XVII, Rule 3 even though he is not present, In our view, Order XVII, Rule 3 applies only to such cases where the party is present, or is deemed to be present in view of the fiction created by the Explanation to Order XVII, Rule 2, and that too subject to the limitation which have already been set out. Thus Order XVII, Rule 3 can have no application at all where a party is neither present nor is deemed to be present as envisaged by the Explanation to Order XVII, Rule 2. It is now necessary to consider Juggi Lal Kamla Pat's case : AIR1962All407 and Pitamber Prasad's case : AIR1957All107 . Juggi Lal's case : AIR1962All407 in so far as it lays down that Order XVII, Rule 3, applies to all cases where default as envisaged by Order XVII. Rule 3 has been committed, does not lay down the correct law. Pitamber Prasad's case (supra) expresses the law correctly in this respect, and we are in respectful agreement with it. It is also not possible to agree with the conclusion in Juggi Lal Kamla Pat's case that the provisions of Order XVII, Rule 3 are only attracted in cases where time has been granted at the instance of the defaulting party and not by the Court suo motu. The phraseology of Order XVII, Rule 3 does not admit any such limitation. The requirement of Rule is 'where any party to a suit to whom time has been granted.....' It does not postulate granting of time only at the instance of the defaulting party, although normally it would be so, for it is only in rare cases that the Court will grant time suo motu without a petition in that behalf by the party concerned. Pitamber Prasad's case does not concern itself with the controversy. Thus the only conflict between Juggilal Kamlapat's case and Pitamber Prasad's case appears to be as regards the applicability of Order XVII, Rule 3 to cases where a party is totally absent. On this aspect, Pitamber Prasad's case appears to be correctly decided. Further, it appears that there is no conflict between Juggilal Kamlapat's and Pitamber Prasad's case as regards applicability of the Explanation to Order XVII. In Juggilal Kamlapat's case, counsel had stated that he had no instruction to press the application for adjournment and withdrew from the case. This being so, it cannot be said that the counsel had been engaged for moving the adjournment application or for putting in appearance on behalf of the plaintiff as contemplated by the Explanation in Order XVII, Rule 2. Thus in Juggilal Kamlapat's case, Order XVII, Rule 2 was not attracted, while such was not the position in Pitamber's case. There does not appear to be any conflict between these two decisions on this point. The Full Bench decision in the case of Munna Lal v. Jai Prakash : AIR1970All257 is useful only for the purposes of deciding as to whether an application under Order IX would be maintainable in cases where the order is ostensibly one under Order XVII, Rule 3, and with respect we endorse the view taken therein that mere labelling of an order by the trial court as one under Order XVII. Rule 3 is not decisive of the matter, and the Court must scrutinise any decision as to whether the order is one which is really under Order XVII, Rule 2.

116. We think it proper to point out at this stage an anomalous position that has arisen in view of the Explanation added to Order XVII, Rule 2, C.P.C. The result of this Explanation is that the parties who engage a counsel to move an application for adjournment are relegated to an adverse position than those who absent themselves completely. In cases covered by the Explanation, if the defaulting party has failed to do the acts envisaged by Order XVII, Rule 3, he is precluded from having recourse to the provision of Order IX, while a party who absents himself completely can avail of that benefit. This result does not appear to us to be equitable, for the Explanation grants a benefit to a party who has made a total default while punishes a party whose default is only partial, in the sense that he has put in appearance through counsel even though for seeking an adjournment. In our view, this inquitable position requires to be remedied by an appropriate amendment by way of deletion or otherwise of the Explanation.

117-118. In view of this conclusion, we would answer the questions referred to us in Civil Revision No. 801 of 1968 and F.A.F.O. No. 329 of 1970 in the following terms--

'In cases where the defendant fails to appear either personally or through counsel, the case would be covered by Order XVII, Rule 2 and not by Order XVII, Rule 3. If, however, he has engaged a counsel to make an application for adjournment, the case would be covered by Order XVII, Rule 3 only in case he has failed to do any of the acts envisaged by Order XVII, Rule 3 and further only in case the court decides the suit forthwith.'

Our answer to the question referred in Civil Revision No. 356 of 1970 is:--

'An application moved for adjournment of the case is an application contemplated by Explanation added by this Court to Order XVII, Rule 2, C.P.C.'

R.L. Gulati, J.

I agree.

BY THE COURT

119. In view of the majority our answer to the question referred in Civil Rev:sion No. 801 of 1968 is that the mentioned case is covered by Rule 2 of Order XVII, and an application under Order IX, Rule 13, will lie, even if the Court professes to act under Rule 3 Rule 3 applies when a party is present, or is deemed to be present, and has defaulted in doing the acts mentioned in Rule 3.

120. Our answer to the question referred in Civil Revision No. 356 of 1970 is in the affirmative.

121. The appeal (F. A. F. O. 329/ 70) is dismissed with costs

122. Let the papers of the two Civil Revisions be laid before the Bench concerned with our answers and opinions.


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