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Gulvir Singh Vs. Tara Chand - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1206 of 1979
Judge
Reported inAIR1982All250
ActsCode of Civil Procedure (CPC) , 1908 - Order 17, Rules 2 and 3 - Order 18, Rule 3A; Allahabad High Court Code of Civil Procedure (CPC) (Amendment) Act
AppellantGulvir Singh
RespondentTara Chand
Appellant AdvocateB.P. Malik and ;S.N. Agarwal, Advs.
Respondent AdvocateA.K. Yog, Adv.
DispositionRevision dismissed
Excerpt:
civil - case on merits - order 17 rule 3 of code of civil procedure, 1908 - party asking for constant adjournments for very long period - case not proceeding - court finally proceeding to hear the case ex-parte on merits - held, mala fide intention of party in asking for constant adjournments - did not participate in case even when he could have. - - and that he had failed to vacate the premises or to pay the arrears. the plaintiff had complained that the earlier costs had not been paid by the defendant. aadesh hua ki kirayedar prarthi ne ab tak pichhala harja jaisi ki hidayat kee gayee thee ada naheen kiya hai kirayedar ko poora mauqa dete hue aur uski charajoee ke barhane ke liye prathnapatra iltawa tareekh waste pesh karne transfer application samaksha unchchtam nyayalaya men wa.....ordergopi nath, j.1. this is a defendant's revision from an order passed by the ii additional district judge, bulandshahr dated 29th of may 1979 decreeing the plaintiff's suit for ejectment of the defendant and recovery of a sum of rs. 2748.35 with pendente lite and future damages for use and occupation at the rate of rs. 200/- per month from him subject to the payment of court-fee on the execution side.2. the defendant is the tenant of the accommodation in question, and the plaintiff is its landlord. the house is situate in civil lines, bulandshahr. the defendant took it on lease in the month of november, 1976. according to the plaintiff, the rent agreed was rs. 200/- per month. the defendant paid an advance of rs. 200/- in november 1976, and paid no rent thereafter. the accommodation.....
Judgment:
ORDER

Gopi Nath, J.

1. This is a defendant's revision from an order passed by the II Additional District Judge, Bulandshahr dated 29th of May 1979 decreeing the plaintiff's suit for ejectment of the defendant and recovery of a sum of Rs. 2748.35 with pendente lite and future damages for use and occupation at the rate of Rs. 200/- per month from him subject to the payment of court-fee on the execution side.

2. The defendant is the tenant of the accommodation in question, and the plaintiff is its landlord. The house is situate in Civil Lines, Bulandshahr. The defendant took it on lease in the month of November, 1976. According to the plaintiff, the rent agreed was Rs. 200/- per month. The defendant paid an advance of Rs. 200/- in November 1976, and paid no rent thereafter. The accommodation let out to the defendant consists of 2 living rooms, one store room one kitchen, latrine, bathroom, courtyard and verandah. It appears that relations between the parties became strained, and proceedings under Sections 107/117, Criminal P C. were drawn. The defendant was alleged to have made an assault on the plaintiff and caused hurt to him and his wife. The plaintiff served a combined notice of demand and termination of tenancy dated 27-10-1977 on the defendant. According to the plaintiff, U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act (XIII of 1972) did not apply to the accommodation in dispute. The defendant was alleged to have defaulted in the payment of rent for over an year. The defendant sent a reply to the notice stating that the rate of rent was Rs. 30/- per month and that he had paid rent till September 1977. Since the defendant did not vacate the premises after the expiry of the period of notice, the suit giving rise to this revision was filed for the reliefs mentioned above on the allegations that the defendant was a tenant of the accommodation at the rate of Rs. 200/- per month that he had defaulted in the payment of rent since November 1976, that a combined notice of demand and termination of the tenancy had been served on him; and that he had failed to vacate the premises or to pay the arrears.

3. The defence delivered was that the defendant was inducted to tenancy by the son of the plaintiff named Sri R.S. Gupta at the rate of Rs. 30/- per month and that he had paid rent up to September 1977. It was further alleged that the plaintiff had agreed that the provisions of U. P. Act No. XIII of 1972 shall be applicable to the premises, and the defendant shall be entitled to the benefits thereof and that since the defendant had paid the entire rent till September 1977, he was not a defaulter.

4. The trial court decreed the suit. It held that the defendant was a tenant of the plaintiff at a monthly rent of Rs. 200/- that he had paid no rent since November 1976, and arrears to the tune of 2748.35 had accumulated against him that his tenancy was determined by a combined notice of demand and termination of tenancy; that Act No. XIII of 1972 was not applicable to the premises; and that the defendant was accordingly liable to ejectment from the premises and also to pay the arrears and pendente lite and future damages for use and occupation at the rate of Rs. 200/- per month.

5. The suit was filed on 23-12-1977, and it was fixed for filing of the written statement on 10-2-1978. On that date, the defendant prayed for one month's time to file the same. The court granted five days' time to file the written statement, and it was filed on 15-2-1978. The case has a chequered history thereafter. After the written statement had been filed, the case was posted for framing of issues on 6-3-1978. It could not be taken on that date. The suit was transferred from the court of Judge Small Causes to the court of II Additional District Judge. and the issues were framed. The case was fixed for hearing on 31-5-1978. On that date, the defendant applied for adjournment for two months. The application was allowed. The case came up for hearing on 31-8-1978. The defendant again applied for adjournment, and the same was granted. The case was fixed for hearing on 23-9-1978. The defendant again applied for adjournment, and the case was adjourned to 18-10-1978. On 18th and 19th of October 1978. the statement of plaintiff's witnesses was recorded, and 20th of October 1978 was fixed for defendant's evidence. The defendant again applied for two months' time to bring a stay order. Time till 8-11-1978 was granted subject to payment of costs awarded earlier for adjournment. The plaintiff had complained that the earlier costs had not been paid by the defendant. On 8-11-1978 again, the defendant applied for one month's adjournment. Adjournment was allowed for a week subject to payment of costs awarded earlier. It appears that the costs awarded had not been paid. The case was fixed for hearing on 16-11-1978. On this date, the defendant paid a sum of Rs. 50/- towards costs but did not pay the balance of Rs. 95/-, which he was directed to be paid by the next date. On 16-11-1978, the defendant again applied for adjournment for 15 days to bring a stay order. Adjournment was allowed for 4 days on payment of the balance cost. The case was posted for hearing on 20-11-1978. It appears that the defendant wanted to file a revision against an order dated 20-10-1978 passed on an application moved by the plaintiff under Order 18, Rule 3-A. C. P. C. for permission to examine himself at a later stage of the case. The defendant was directed to pay balance cost by 23rd of November 1978. On 23-11-1978, the presiding Officer of the court was on leave, and the case was fixed for 5-12-1978 for final hearing. It appears that a revision filed to this Court against the order dated 20-10-1978 was dismissed on 20-11-1978. and on 5-12-1978 when the case was taken up by the court below, the defendant asked for an adjournment for two months to bring a stay order from the Supreme Court. The adjournment was granted on payment of Rs. 20/-as costs to be paid within three days. The case was posted for hearing on 8-1-1979. It appears that the defendant had moved an application to the District Judge for transfer of the case from the court of the II Additional District Judge. The stay order was filed on 8-1-1979. The transfer application was however rejected by the District Judge on 31-3-1979. The court below fixed 17th of April 1979, for evidence of the parties and for arguments. On 17-4-1979, the defendant again applied for adjournment for a month. This was allowed. The case was posted for hearing on 1-5-1979. On this date again, the defendant filed an application for adjournment which was allowed, and the case was posted for 8-5-1979. The defendant again applied for one month's adjournment to bring a stay order from the High Court by moving a transfer application there. The court below granted seven days' time to bring the stay order. The case was posted for 15-5-1979 for hearing. The order sheet of 8-5-1979 is relevant and is quoted below:--

'Aaj Wad pesh Hua. Awaz dillaee gaee. Vivadigan hazir aye. 65/D prar-thnapatra pratiwadi mai Shapathpatra 66/D Waste Iltawa Tareekh Wa Samaya 1 Mah Mohlat Waste Lane Stay Order Uchchatam Nyayalaya se pesh hua wa wakil wadee ko bhee suna Gaya. Aadesh hua ki kirayedar Prarthi ne Ab Tak Pichhala Harja Jaisi Ki Hidayat Kee gayee Thee Ada Naheen Kiya Hai Kirayedar ko poora Mauqa dete hue aur uski charajoee ke Barhane ke liye prathnapatra iltawa tareekh waste pesh karne transfer application samaksha unchchtam nyayalaya men wa dakhil karne stay order dinank 14-5-79 tak baadai harja 20/- rupaye babat Aaj ke bad ke multawi hone ke tatha pich-hala Harja jo ada naheen kiya gaya hai sweekar howe. Basoorat kasir rahne ke karyawahee yaktarfa vinudha pra-rthee hogee. Agar kul harja ada howe to 15-5-79 waste samaat qataee muqa-dama niyate howe. Agar kul harja jo bajib hai ada naheen hota hai to bad dinank 15-5-79 ko ektarfa hoga tatha yah bat kahte hue ki agar koee stay order misal par shamil naheen hota hai Vivadigan ko soochana dee jawe. '

As observed, the case was posted for hearing to 15-5-1979. The defendant neither paid the costs nor did he produce any stay order till that date. The transfer application moved to this court was dismissed on 7-5-1979. On 15-5-1979, when the case was taken up, the applicant moved another application for adjournment on the ground that he intended to move the Supreme Court for transfer and bring a stay order from that court. The court granted two weeks' time to bring a stay order. This order reads as follows:--

'Aai pesh hua. Vivadigan hazir aye. Waste wadi Sri Kishan Chand Singh Advocate hazir aye wa prarthnapatra 55/D waste mohlat 1 mah saste lane stay order bad daira transfer application uchchatam nyayalaya men pesh hokar adesh hua ki wakil wadi wa pratiwadi ko suna ki mananeeya uchch nyayalaya ke adesh ki certified copy leni hai wa wah Supreme Court men appeal dair andar 15 din kar sakte hain. Iltawa tareekh Muqaddama Baadai Harja 20/- deya Agli Tareekh Tak Sweekar Howe Wa 29-5-1979 Waste Stay Order Ya Samaat Qataee Niyat Howe Jaisa Bhi Howe. Agar Stay Order Dakhil Naheen Hua To Fareekain Waste Dene Apni Apni Shahadat Taiyar Rahe. Ayanda Samai Naheen Diya Jawega.'

The case was fixed for 29-5-1979. The defendant neither produced any stay order from the Supreme Court nor paid the costs awarded. When the case was taken up, the defendant again moved an application for adjournment for two months on the ground that he had entrusted the papers to his counsel in the Supreme Court and since that court was closed, he may be granted two months' time to bring a stay order. This application was rejected by the following order;--

'Heard the applicant and learned counsel for plf. The transfer application was dismissed by Hon'ble High Court on 7-5-1979 and since then no stay has been obtained. The affidavit is vague and does not disclose the date of filing and admission. In view of order dt. 15-5-1979 along with above facts, the application has no force and is rejected.'

The applicant then moved an application (paper No. 58-C) that he was not ready with the case as the file had been given to the counsel at Delhi, hence another date may be fixed in the case. This application was rejected by the following order:--

'Heard. The application rejected for further time did not authorize the tenant applicant for not preparing this suit and there is no sufficient ground to adjourn the suit. It is rejected.'

The proceedings of the case as narrated above speak for themselves. Within a period of 15 months, the defendant had applied for and obtained 15 adjournments in the case. On 15th of May 1979, the order-sheet of which has already been quoted, the court had clearly directed the parties to come prepared with evidence and to conduct the case. It may be mentioned that Sri V.S. Kulshreshtha, the presiding officer of the Court, was under orders of transfer, and was to hand over charge on 31st of May 1979. The case was an old one, and he was naturally keen to dispose it of. He accordingly, after rejecting the applications for adjournment, proceeded to dispose of the case on merits under Order XVII. Rule 3, Civil P. C. The witnesses on behalf of the plaintiff had been examined. He alone was left to be examined. His application under Order XVIII, Rule 3-A, Civil Procedure Code had been allowed. The court accordingly examined him and dictated the judgment on merits. The defendant then filed an application that he wanted to cross-examine the plaintiff and his witnesses and to produce his own evidence, and he may be allowed to do so. The court below rejected this application by an order dated 29-5-1979, which reads as follows :--

'Seen the application dated 29-5-79 of Sri Gulvir Singh, defendant-tenant, which has been moved after I have dictated the judgment in the open court and the suit has already been decreed. Thus, this application is not legally maintainable at this stage and is rejected''.

According to the learned Judge, the judgment having been dictated and the suit having been decreed, there was no question of cross-examination of the witnesses of the plaintiff or the production of the witnesses of the defendant. The suit was decreed on merits for ejectment of the defendant and for recovery of a sum of Rs. 27.48.35 with pendente lite and future damages for use and occupation at the rate of Rs. 200/- per month. The defendant was allowed to deliver possession of the property by 15-7-1979. This order has been challenged by the present revision on the following grounds :--

1. That the court below erred in proceeding to decide the suit under Order XVII, Rule 3, C. P. C.

2. That the court below erred in permitting the plaintiff to examine himself on 29-5-1979.

3. That the Court below wrongly rejected the two applications for adjournment moved on 29th May 1979.

4. That this was a fit case for transfer from the court of the II Addl. District Judge, Bulandshahr. I shall consider these points seriatim.

6. Learned Counsel for the applicant urged that the court below erred in deciding the case under Order XVII, Rule 3, Civil P. C. as the applicant had not appeared to participate in the proceedings but had done so only to move for adjournment; and a party can be held to be present within the meaning of Order XVII. Rule 3, Civil P. C. only if he appears to produce his evidence or to cause the attendance of his witnesses or to perform any other act to the further progress of the suit for which time had been allowed to him. According to learned counsel, the mere physical presence of a party is no appearance in order to attract the provisions of Order XVII, Rule 3. Appearance under that provision must be for the performance of the acts mentioned therein. Reliance was placed on Ramji Upadhyaya v. Madho Upa-dhyaya (1981 All WC 659); K. Seethamma v. K. Kameswar Rao : AIR1967Ori152 ; Marothu Suryarao v, Paluri Peddiyya : AIR1967AP152 ; Muza-mmal Hussain v. Chaganlal Jain (AIR 1967 Assam 14) and T. Kaliappa Mudaliar v. Kumarasami Mudali (AIR 1926 Mad 971). Ramji Upadhyaya v. Madho Upadhyaya (1981 All WC 659) dealt with a case where the counsel reported 'no instructions' to the court and submitted that he could not proceed with the appeal in the circumstances. The appeal was accordingly dismissed. This court held that the appeal was dismissed for default. That case does not apply in the instant case. A mere information by a counsel that he has no instructions to proceed with the case cannot be said to be the presence of a party for the purposes of Order XVII, Rule 3. In Marothu Suryarao v. Paluri Peddiyya : AIR1967AP152 it was held that if a party absented himself from the proceeding after adjournment was refused, and the case was disposed of, the order could not be held to be one passed under Order XVII. Rule 3 but was an order passed under Order XVII, Rule 2. The provisions of Order XVII, Rules 2 and 3 as amended by Andhra Pradesh will have to be considered. They read as follows:--

'2. Procedure if parties fail to appear on day fixed...... 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.

Explanation.-- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned the Court may, in its discretion, proceed with the case as if such party were present.

3. Court may proceed notwithstanding either party fails to produce evidence, etc. Where 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. ... ... ...

(a) if the parties are present, proceed to decide the suit forthwith; or

(b) if the parties are, or any of them, is absent, proceed under Rule 2.'

Andhra Pradesh High Court Amendment to Rule 2:

'Add at the end of Rule 2, the following explanation:--

'Explanation :-- The mere presence in Court of a party or his counsel not duly instructed shall not foe considered to be an appearance of the party within the meaning of this rule.' In view of the above amendment of Rule 2 by the Andhra Pradesh High Court, a party, in the circumstances referred to in the Amendment, could not be held to be present in the proceeding in order to attract the provisions of Order XVII, Rule 3, Civil P. C. It may be necessary to notice the Amendment made to Rr. 2 and 3 by this Court. The Amendment to Rule 2 reads :--

'Add 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 may dispose of it on the merits.

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

7. The Amendment to Rule 3 reads:

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

In view of the Explanation added to Rule 2, a party who is present only for making an application would be deemed to be present in the proceeding, whereas under the Explanation added to Rule 2 by the Andhra Pradesh High Court, the mere presence of a party or his counsel not duly instructed could not be considered to be an appearance of the party, in the instant case, the applicant moved two applications for adjournment and thereafter filed an application that he would cross-examine the witnesses produced by the plaintiff and would also produce his own evidence. These applications have already been referred to by me in the earlier part of this judgment. They clearly go to show that the applicant wanted to get the case postponed somehow although he was in a position to participate in the proceeding. He filed two applications for adjournment. They having failed, he filed a third one to proceed with the case to cross-examine the plaintiff's witnesses and to produce his own evidence. It is apparent that the applicant first wanted to have the case postponed. Having failed in his effort, he submitted to the court that he was in a position to proceed with it. The last application was, however, filed after the judgment had been dictated. Marothu Suryarao v. Paluri Peddiyya : AIR1967AP152 (supra), to which reference was made, is distinguishable on facts, in Panna Lal Mandwari v. Mt. Bishen Devi : AIR1946All353 the plaintiff on the date of hearing applied for time to produce his documents. Time was granted on the next date, the plaintiff was absent, plaintiff's counsel applied for adjournment. The prayer was refused, and the suit was dismissed for default It was held that Order XVII. Rule 3, and not Rule 2, applied to the case. The amendment made by this Court to these rules was noticed, and it was observed:

'In view of this explanation, it is clear, in our judgment, that the trial Court could not, on 5th February 1942 proceed under Rule 2 of Order 17. as it originally stood, in other words, under what is now para 1 of Rule 2 after the additions made by this Court. The argument of the appellant's counsel, then is that, in any event, the language used by the trial Court shows that it intended to proceed under para 1 of Rule 2 of Order 17. We do not consider it necessary to express any opinion on the question whether the intention of the Court, if it is clearly expressed, is material even if it has purported to act in accordance with a certain provision of the Code under a misapprehension as to the correct provision applicable, because the language used by the Court in the case before us cannot be said to be clear on the point. It is true that the Court said that the plaintiff was absent. That was correct so far as the physical presence of the plaintiff was concerned. The plaintiff's counsel, however, was present and filed an application for adjournment. It is also true that the Court used the word 'default.' It has been argued on behalf of the appellant that this word must be taken to have been used in the sense of failure to appear, and not in the sense of failure to produce evidence or to perform any other act necessary for the further progress of the suit for which time had been allowed within the meaning of Rule 3 of Order 17. as amended by this Court. In our judgment this contention cannot be accepted. The utmost that can be said is that the language used by the trial Court was ambiguous and was open to both the constructions mentioned above. If the plaintiff and her advisers placed the latter construction upon it, can it be said that they were necessarily wrong? We think not. Furthermore, even if we were to accept the contention that para. 1 of Rule 2 of Order 17 was applicable to the facts of this case which we are far from doing -- we would find it difficult to hold that a party can be penalised if the Court chooses to couch its order in ambiguous language which is open to two constructions. As has been pointed out above, the appellate Court treated it as a decision under Rule 3 of Order 17 and no exception to that view was taken by the defendant. We are, further, of the opinion that R 3 of Order 17, as amended by this Court, was in terms applicable to the facts of this case '

Muzammal Hussain v. Chaganlal Jain (AIR 1967 Assam 14) on which reliance has been placed by learned counsel for the applicant, is again distinguishable in that after adjournment was refused in that case, the defendant did not participate in the proceedings, and the suit was decreed ex parte. It was held that Order XVII, Rule 2 applied, and the defendant could make an application under Order IX. Rule 13, C. P. C. I have already observed that the defendant-applicant in the instant case was in a position to participate in the proceedings but he deliberately refused to do so. Natesa Thevar v. Vairavan Servaigaram : AIR1955Mad258 is also distinguishable on the ground that the party concerned in that case neither participated in the proceeding nor had he any intention to participate. K. Seethamma v. K. Kames-war Rao : AIR1967Ori152 only lays down that the word 'appearance' used in Order 17, Rule 2 does not mean mere physical appearance or presence of a party but means appearance or presence for purposes of participation in the proceeding. Mere physical presence may not in certain circumstances amount to 'appearance' for purposes of participation in the proceeding but a party cannot be allowed to dictate to the court; and if he is in a position to participate in the proceedings and deliberately refuses to do so in order to achieve his own ends, the provisions of Order XVII. Rule 3 C. P. C. can be attracted to the proceeding, participation in the proceeding cannot be made subject to the choice or will of a party. If circumstances prevent him or render him incapable to participate in the proceeding, that is another matter. In T. Kaliappa Mudaliar v. Kumarasami Mudali (AIR 1926 Mad 971) it was observed:--

'The appearance contemplated by the Code must be, not as a man, but as a party and with the intention of acting as a such party in that suit and therefore the mere fact that the party was present in Court when his pleader reported no instructions, would not amount to an appearance.'

This case does not help the applicant. The applicant in the instant case, who himself was an Advocate clearly informed the court that he would participate in the proceeding. But this was at a stage when the judgment had been dictated.

8. The instant case seems to be covered by the Full Bench decision in M.S. Khalsa v. Chiranji Lal : AIR1975All290 . The facts of that case were that 8th of July 1969 was the date fixed for final hearing of the case. On that date, the defendant moved an application for adjournment on the 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 the defendant moved another application. This application was rejected by the Court. The counsel for defendants thereupon stated that he had no further instructions, and was, therefore, withdrawing from the rase. The Court directed that the case will proceed under Order XVII, Rule 3, C. P. C. The plaintiff thereafter produced his evidence and closed his case. The Court fixed 2-8-1969 for judgment. The suit was decreed on merits by an order dated 2-8-1969. The question referred to the Full Bench was :--

'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.'

The appeal which was preferred against the order decreeing the suit on merits was dismissed by this court and the decree was affirmed. It was held that Rule 3 of Order XVII applied to the case. The Full Bench observed that where a party failed to appear in the case, Rule 2 applied and Rule 3 applied where the party was either present or was deemed to be present, and had defaulted in doing the acts mentioned in the Rule. The crucial question in this regard is whether the party concerned was present or could be deemed to be present and had failed to do the acts mentioned in Order XVII, Rule 3, or he was absent. Learned counsel for the applicant invited my attention to paragraphs Nos. 13 and 14 of the Full Bench decision to contend that the fictional presence of a party is not to be taken into account for the purposes of applying Rule 3 of Order XVII. Chief Justice Asthana in the aforementioned paragraph observed as follows:--

'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.

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.'

These observations do not help the applicant. In the instant case, the applicant was factually present, and was also in a position to participate in the suit proceedings but he chose not to do so.

9. Learned counsel for the applicant then submitted that the Explanation added to Rule 2 by this court could not be taken into account for attracting Rule 3 of Order XVII. According to learned counsel, the Explanation was confined to the case falling under Rule 2 of Order XVII alone. This contention stands negatived by the observations of Hon'ble Satish Chandra, J. who gave the leading judgment for the majority view in M. S. Khalsa v. Chiranji Lal : AIR1976All290 whereof reads :--

'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.'

Operative portion of the -judgment states:--

'The appeal (F. A. F. Order 329/70) is dismissed with costs.'

Panna Lal Mandawari v. MX Bishen Dei : AIR1946All353 also leads to the same conclusion. The Allahabad Amendment to Rule 3 too suggests that the Explanation added to Rule 2 can be called in aid for the purposes of the application of Rule 3. The amendment made by this Court states that 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 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, -- (a) if the parties are present proceed to decide the suit forthwith: or (b) if the parties are, or any of them is, absent, proceed under Rule 2. The Court has accordingly to see whether a party is present or absent with reference to the provisions of Rule 2. The Explanation added to Rule 2 hence has to be taken into account for deciding whether a party is present or absent. In Rama Rao v. Shantibai : AIR1977MP222 it was observed as follows :--

'The other main question for our decision is about the meaning of appearance of a party at a hearing in the Court. There can be no doubt that the mere conscious presence of the party himself in the Court for participation therein when the case is called out, whether the party thereafter actively participates at the hearing or not, does amount to appearance of that party at that hearing. In the case of personal presence of the party, it constitutes appearance even when he abstains from appearing after refusal of an adjournment. Thus, in the case of presence of the party which constitutes appearance, even his further withdrawal has no effect and Rule 3 is attracted ............'

These observations clearly apply to the facts of the instant case. The applicant was very well present in the proceeding. He moved two adjournment applications and thereafter again appeared to participate in the proceedings but by that time the judgment had been dictated. In L. Mahadev v. A.K. Anantha Krishna (AIR 1971 Mys 252) it was held that when a party present in court on the adjourned date of hearing goes out to fetch his counsel but fails to turn up, the decree passed on merits is under Rule 3 and not Rule 2 of Order XVII. In Krishna Kumar v. Raghubir Prasad Yadav : AIR1979Pat49 it was held that if a party participated in the trial to some extenl and thereafter absented himself from the proceedings, the judgment in his absence was under Rule 3 of Order XVII. There further appears to be distinction between the words 'appear' and 'present' as occurring in Rules 2 and 3 of Order XVII respectively.

10. In view of the discussion above, the court below rightly decided to pro-reed with the case under Rule 3 of Order XVII.

11. Learned counsel then contended that the court below erred in granting permission to the plaintiff to examine himself on 29-5-1972 and the order passed in that behalf dated 20-10-1978 was erroneous in law. A revision against that order had been preferred to this Court, which was dismissed with the following observation ;--

'......... He may take up this ground in the revision against the decree if any passed against him. At that stage the applicant may demonstrate any material prejudice which may have been caused to him by the alleged non-compliance of Order 18, Rule 3A C. P. C......'

The only prejudice pointed out was that the plaintiff had an opportunity to know the evidence given by his witnesses, and was in a position to fill up the lacuna in the statements of those witnesses. Neither any lacuna nor its filling was pointed out by learned counsel. The permission granted under Order XVIII, Rule 3-A was by a detailed order passed by the Court below. It gave detailed reasons for allowing the plaintiff to examine himself at a late stage. In Civil Revision No. 1936 of 1977, Satya Prasad Thapliyal v. Jatan Singh decided on October 10. 1979, it was held that the provisions of Order XVIII, Rule 3-A are directory, and the Court can permit a party to examine himself at a late stage of the suit, giving its reasons for the same. (See Mohd. Aqil v. Alimulla (1978) 4 All LR 585 : (1978 All LJ 547); Kwality Restaurant, Amritsar v. Satinder Khanna, Amritsar ; The Amritsar Improvement Trust v. Smt. Ishri Devi (1979) 2 Ren CJ 422 (FB) and Maguni Devi v. Gouranga Sahu 0065/1978 : AIR1978Ori228 . The reasons recorder! by the Court below in its order dt. 20-10-1978 are cogent and detailed. The order does not suffer from any legal defect. The contention fails and is rejected.

12. Learned counsel then urged that the court below wrongly rejected the two applications filed for the adjournment of the case on 29-5-1979. The order dated 15-5-1979 (quoted earlier) clearly directed the parties to come prepared with their evidence and to produce the same on 29-5-1979. Several adjournments had been granted in the case and since the court was under orders of transfer, it wanted to dispose of the same. The applicant knew that the case was fixed for final hearing on 29-5-1979. He further knew that the court had already granted number of adjournments in the case. The applicant knew that he had to come prepared for participation in the proceedings. The fact that he had filed a transfer application in the Supreme Court did not absolve him of his responsibility of coming prepared with the case and to participate in the proceedings in case no adjournment was granted by the court. The only ground mentioned for the adjournment was that he had left the file with his counsel in the Supreme Court. He could have brought the file for conducting the case on 29-5-1979, and then returned it to his counsel. He could have prepared another record as well for the purposes of the suit proceedings. The two applications moved for adjournment were on the ground that since the transfer application was pending in the Supreme Court, the case deserved to be adjourned in order to enable him to bring a stay order. Adjournment had already been granted on this ground earlier. The adjournment prayed was for two months. It appears that the case in the Supreme Court was listed for 5-6-1979. Two months' adjournment was thus not at all called for. In all the applications the applicant had been praying for two months' adjournment, may be to drag on the proceedings as long as it was possible to do so. The second application was moved on the ground that the file was not available to the applicant himself. The applicant appeared to participate in the proceedings, though at a late stage when the order had been dictated. Thus he was in a position to participate in the proceedings, and the application appears to have been filed only with a view to obtaining postponment of the case. The order rejecting the applications does not suffer from any defect.

13. Learned counsel then submitted that the application for permitting the defendant-applicant to participate in the proceedings was filed during the progress of the proceedings, and the court below erred in not allowing the same. Learned Judge has observed that that application was moved after the judgment had been dictated. If the applicant desired to participate in the proceeding when it was in progress, there was no need to ask for permission. This indicates that the application was filed after the order had been dictated, as observed by the court below. If, on the other hand, the defendant-applicant was present during the progress of the proceedings and desired to participate in the same, the contention that Rule 2 of Order XVII C. P. C. applied to the case gels negatived. For the reasons, I am satisfied that the application for participation in the proceedings was not moved during the progress of the suit. It may be observed that one Sri J.K. Mathur had been engaged by the defendant-applicant to conduct the case in the court below. His Vakalatnama continued, and he had not withdrawn from the case but he did not sign any of the three applications moved by the defendant. This further shows that the grounds for adjournment were not substantial and the prayer for participation in the proceedings was made after the dictation of the judgment.

14. Learned counsel then contended that the case was a fit one for transfer. This question had already been considered by this Court, and the application for transfer was rejected as no ground was found made out by this Court in its order dated 7-5-1979. Learned counsel further could not point out any sufficient ground for transfer. That point also thus fails.

15. No other point was pressed, and those pressed have no force.

16. The revision accordingly fails and is dismissed with costs. Learned counsel for the applicant has prayed for three months' time to vacate the premises. Time prayed for is granted.


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