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Madanlal Kanhaiyalal Vs. Jai Narayan Gendalal Jatav - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revision No. 64 of 1968
Judge
Reported inAIR1972MP9; 1971MPLJ916
ActsCode of Civil Procedure (CPC) , 1908 - Order 9 - Order 17, Rules 2 and 3
AppellantMadanlal Kanhaiyalal
RespondentJai Narayan Gendalal Jatav
Advocates:N.K. Jain, Adv.
Excerpt:
- - ' rule 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. it is limited in its application to cases when the following conditions are satisfied: 14. where the conditions of rule 3 are satisfied, the court has the power to decide the suit forthwith in spite of the default. we are clearly of the view that this question must be answered according as the counsel merely informs the court want of instructions, or seeks an adjournments and when adjournment is refused, he withdraws on the ground of not being ready with evidence, or on the grounds that he had instructions merely to seek an..........be necessary for reasons to be recorded.' rule 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.'rule 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 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.'6. the procedure to be followed on the non-appearance of the parties at the first hearing is laid down in order 9 of the code. when there is default of.....
Judgment:

Shiv Dayal, J.

1. The following questions have been referred by a learned single Judge for decision by a Division Bench:--

'(1) Whether it is open to the Court to proceed under Order 17, Rule 3, C. P. C., in the absence of a party?

(2) Where the Court proceeds under Order 17, Rule 3 in the absence of a party and the conditions laid down in the said Rule are fulfilled, whether the order can still be construed as one under Order 17, Rule 2, merely on the ground that it was not expedient for the Court to do so?'

2. The revision-petitioner filed in the Court of Small Causes a suit against the respondent for recovery of money. On October 7, 1967, which was the date for disposal of the suit, the defendant filed his written statement denying the claim. However, at the request of the plaintiff the hearing was adjourned to November 8, 1967, for evidence, subject to payment of Rs. 4/-as costs. On the last mentioned date, when the case was called on for hearing in the early hours, the plaintiff did not appear; and his counsel, though present, requested for time till 1 P. M. When the case was again taken up at about 1 P. M., neither the plaintiff nor his counsel appeared. Thereupon the trial Court dismissed the suit saying that the plaintiff had not adduced any evidence in spite of an adjournment having been granted on the plaintiff's request for production of evidence. A decree was drawn up on the same date.

3. On January 11, 1967, the plaintiff made an application under Order 9, Rule 9, C. P. C., for restoration of the suit stating the circumstances in which he was prevented from appearing on November 8, 1967. The trial Court dismissed that application holding that it was not maintainable inasmuch as the suit had been dismissed under Order 17, Rule 3, and not under Order 17, Rule 2, C. P. C. Being aggrieved by that order, the plaintiff filed this revision.

4. To answer the question referred to us, we shall first advert to the scheme of Order 17, C. P. C. That Order, the heading of which is 'adjournments' consists of only three Rules. Normally, on the date fixed for hearing, the hearing should begin and conclude. At any rate, it must continue from day to day until concluded, but there may be circumstances in which the Court may find adjournment of the hearing beyond the following day to be necessary. Rule 1 of Order 17 vests in the Court a discretion to grant time to parties on sufficient cause being shown. Sometimes adjournment becomes necessary by the Court on its own motion. Rule 2 of Order 17 lays down the procedure to be followed by the Court when, on an adjourned hearing, the parties or any of them do not appear. Rule 3 enacts the procedure which the Court may follow when a party, who had taken time to produce his evidence or to perform any other act necessary to the further progress of the suit, commits default. As we shall presently discuss, Rule 3 contemplates appearance of both the parties on an adjourned hearing. However, Rule 3 has no application to a case where the hearing had not been adjourned at the instance of a party, or if it had been so adjourned, the party appeared on the adjourned hearing but was in default in respect of the act for which he had taken time.

5. The three Rules of Order 17, C. P. C., enact as follows:--

Rule 1 '(1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit.

(2) In every such case the Court shall fix a day for further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment:

Provided that, when the hearing of evidence has once begun, the hearing of the suit shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing beyond the following day to be necessary for reasons to be recorded.' Rule 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.'

Rule 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 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.'

6. The procedure to be followed on the non-appearance of the parties at the first hearing is laid down in Order 9 of the Code. When there is default of appearance at an adjourned hearing, Order 17, Rule 2, comes into play. Rule 2 has no application when all the parties are present at an adjourned hearing, but if any party does not appear at an adjourned hearing, Rule 2 is attracted, no matter for what purpose the adjournment had been made,

7. Rule 2 vests a wide discretion in the Court either to proceed to dispose of the suit in one of the modes provided by Order 9, or to make such other order as it thinks fit. The effect of the former is to assimilate the procedure when there is default of appearance at an adjourned hearing with that which is enacted in Order 9, for such default at the first hearing. Thus, if both the parties do not appear, that suit may be dismissed as under Order 9, Rule 3; if the plaintiff appears but the defendant does not, the Court may proceed ex parte as under Order 9, Rule 6; and if the defendant appears but the plaintiff does not, the suit is to be dismissed as under Order 9, Rule 8.

8. If the plaintiff does not appear, the Court may either dismiss the suit as under Order 9, Rule 3 or Rule 8, as the case may be, or may make such other order as it thinks fit. Decided cases are not uniform on the interpretation of the expression 'may make such other order as it thinks fit.' One view is that if the Court does not proceed in any of the modes directed by Order 9, the only course open to the Court is to grant an adjournment but the Court cannot decide the case on the merits. There is another view which recognises the power of the Court to give a decision on the merits. There is yet a third view according to which the Court has power to give a decision on the merits, if there is sufficient material on record but not otherwise. We respectfully concur in the first view when the language of Rule 2 is placed side by side with that of Rule 3, it becomes clear that that expression does not include a decision on the merits. The power to 'dispose of the suit under Order 17, Rule 2, is by reference to Order 9 only. Again, in Rule 3, the expression employed is 'decide the suit'. In the second part of Rule 2, the power given is to 'make such other order as it thinks fit' in contradistinction to the power to 'dispose of the suit' or 'to decide the suit'. The words 'other order' denote an order which does not dispose of the suit or decide the suit. On this analysis, it must be said that where the plaintiff does not appear on an adjourned hearing, his suit cannot be dismissed on the merits under Rule 2.

9. It may, however, be stated in the above context that where the plaintiff does not appear and the defendant has closed his case, there is no impediment in the law which prevents the Court from passing a decree in favour of the plaintiff on the material on record in spite of his non-appearance. This power is inherent in the Court.

10. When the defendant does not appear on an adjourned hearing, the Court may proceed in his absence and may record plaintiff's evidence ex parte and may even pass an ex parte decree.

11. As the provisions of Rule 2 are discretionary the elementary rule which is a celebrated one has to be remembered, that is, discretion must be exercised on sound judicial principles. Whether the exercise of the discretionary power was. proper or not can be scrutinised by the superior Court.

12. Rule 3 of Order 17, C. P. C. also applies to an adjourned hearing. This Rule contemplates the appearance of all the parties at the adjourned hearing. It is limited in its application to cases when the following conditions are satisfied: (1) The adjournment was granted to enable a party 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; (2) such party does not perform the act or acts for which time had been granted to him; and (3) the hearing had been adjourned at the instance of the party which committed default.

13. Rule 3 is out of the way when any party does not appear. It was an argument that if this be the correct reading of the law, a party will gain, by remaining absent, what it cannot by remaining present. In other words, if a party has not been able to perform the act for which he had taken time and if he appears, he incurs the risk of a further adjournment being refused and the suit to be decided forthwith by application of Rule 3; but, if he just remains absent, the Court can only proceed under Rule 2, so that it will be open to it to get the clock set back. On this argument, it was suggested at the Bar that this procedure would lead to an obvious injustice because a party may then trifle with the Court and purposely absent itself. Firstly, this argument forgets the discretionary power of the Court to refuse to set back the clock so that if the Court finds a party to be trifling with it, it will exercise its discretion that way But that aside, the language of the provisions being clear, the interpretation which will do violence to them cannot be given merely on a supposition that the legislature intended otherwise.

14. Where the conditions of Rule 3 are satisfied, the Court has the power to decide the suit forthwith in spite of the default. The word 'forthwith' in this Rule means on the merits upon such materials as are before the Court, or on the merits as gathered from the available facts. Thus where the plaintiff does not produce evidence or does not perform any other act for which he has taken time and on that material before the Court a decree cannot be passed in his favour, the suit may be dismissed. Likewise, if the defendant commits such default and the material on record is sufficient to pass a decree in favour of the plaintiff, a decree may be passed against the defendant on the merits. The word 'notwithstanding' in this Rule is, so to say, for mere removal of doubt. A defaulting party cannot claim as of right further adjournment or adjournments and it is not open to it to urge that the Court having once granted an adjournment, the genuineness and honesty of the party was already accepted.

15. It must again be noted that the Court's power under Rule 3 is a discretionary one so that in a proper case the Court may refuse to decide the suit on merits forthwith. The Court may even grant an adjournment by exercising its power under Rule 1.

16. The word 'appear' in Rule 2 is not confined to personal appearance of parties. A party may appear in the Court by an agent or pleader also. It has been a debatable point whether it is appearance of the party when a counsel, although present in Court, reports no instructions. We are clearly of the view that this question must be answered according as the Counsel merely informs the Court want of instructions, or seeks an adjournments and when adjournment is refused, he withdraws on the ground of not being ready with evidence, or on the grounds that he had instructions merely to seek an adjournment. A counsel sometimes reports no instructions when his fee is not paid or when his client does not equip him with necessary information regarding the material facts. In such a case, when the counsel reports no instructions it is just to show that he is not ready to go on. In fact, this is in accord with his duty to the Court and by doing so, he shows ordinary courtesy to the Court so that the Court has not to wait for him. Such reporting of no instructions is an act of the counsel in his personal capacity. But where the counsel appears and seeks an adjournment, his appearance is on behalf of the party. Once he has so appeared his reporting no instructions, when adjournment is refused, does not tantamount to non-appearance of the party. There is no difference in such appearance of the counsel and the appearance of the party whom he represents. If the party had appeared in person and had sought an adjournment but the adjournment had been refused and then the party had abstained from taking part in the proceedings or disappeared from the Court room, it would not be a case of non-appearance of a party so as to attract Rule 2. Therefore, if reporting of no instructions by the counsel is of the latter kind and the Court decides the suit on merits, it will be under Rule 3, and not under Rule 2.

17. When the default under Rule 5 is coupled with the default under Rule 2 as well, a nice question may arise under which Rule the Court has to proceed. For the reasons already stated, we are clearly of the view that the language of Rule 2 does not leave any manner of doubt that it exhaustively applies to a case where the parties do not appear, or any of them does not appear on an adjourned hearing. This is irrespective of whether the hearing had been adjourned at the instance of a party or Otherwise. The remedies in the case of orders under Rule 2 and Rule 3 are different. If a suit is dismissed under Order 17, Rule 2, with the aid of Order 9, Rule 3, the plaintiff's remedy is to get the dismissal set aside under Order 9, Rule 4. If his suit stands dismissed under Order 17, Rule 2, with the aid of Order 9, Rule 8, his remedy is to apply for restoration of the suit under Order 9, Rule 9. If this suit is dismissed under Order 17, Rule 3, his only remedy is by way of an appeal. In the case of defendant, if an ex parte order is passed against him, or an ex parte decree is passed against him, under Order 17, Rule 2, he may with the aid of Order 9, Rule 7, get the clock set back, or may apply for setting aside the ex parte decree under Order 9, Rule 13 as the case may be. But if a decree is passed against him under Rule 3, his only remedy is by way of an appeal.

18. Where the Court neither mentions Rule 2, nor Rule 3, a question sometimes arises what remedy the aggrieved party has to take recourse to. So also, where the Court wrongly proceeds under Rule 3, where it ought to have proceeded under Rule 2, or vice versa, or where the Court purports to act under one of these rules but erroneously mentions the other Rule, again the same question arises, that is, what remedy is available to the aggrieved party. For the reasons we have already stated, we are of the view that where the aggrieved party did not appear and the Court passed an order or decree against him, whether rightly mentioning Rule 2, or wrongly mentioning Rule 3 in its order, the party is entitled to take recourse to the remedies provided in Order 17, Rule 2, read with Order 9. Where in spite of non-appearance of the party the Court decided the suit under Rule 3 and even if expressly mentioned that Rule, the aggrieved party can still treat that order as one under Rule 2 and avail himself of the remedy provided in Order 17, Rule 2, read with Order 9. This is not in violation of the general rule that the appealability or otherwise of an order is to be determined from the order as passed and not from the order which should or could have been passed. When we say that the remedy under Order 17, Rule 2, read with Order 9 is available, it is because the order really falls under Rule 2, although it may bave been erroneously passed, which error can be corrected by the Court in a proceeding under Order 17, Rule 2, read with Order 9. However, if in such a case the aggrieved party prefers an appeal such an appeal cannot be said to be incompetent as the appellant is entitled to invoke the rule that a party cannot be made to suffer because of the mistake of the Court.

19. The conclusion we have reached may now be summed up thus:--

(1) When the parties do not, or either of them does not, appear on the first hearing, the provisions of Order 9, C. P. C. apply. When once the parties enter appearance, but they do not, or either of them does not appear on an adjourned hearing, Order 17, Rule 2, C. P. C., applies.

(2) It is Order 17, Rule 2, which applies to every case of non-appearance of the parties on an adjourned hearing, irrespective of whether the hearing had been adjourned at the instance of a party for production of evidence or the like, and even if such default, as is spoken of in Order 17, Rule 3, is coupled with the default of appearance.

(3) Under Rule 2, the Court can do one of two things: (i) Proceed to dispose of the suit in one of the modes directed in that behalf by Order 9; or (ii) make 'such other order as it thinks fit' which expression is in contradistinction to 'dispose of the suit' (under Rule 2) and 'proceed to decide the suit' (under Rule 3).

(4) When the plaintiff does not appear on an adjourned hearing, the Court may under Rule 2; either (a) dismiss the suit for default; or (b) simply adjourn the hearing to another date, maintaining the same stage at which the case is; or (c) if the plaintiff had taken time to produce evidence or to perform any other act necessary to the further progress of the suit, close that right and adjourn the hearing for further trial; but the Court cannot dismiss the suit on merits. Undoubtedly, the Court has inherent powers to pass a decree in favour of the plaintiff in spite of his absence if, the defendant having closed his case, the Court finds that the plaintiff's case is made out. In case (a), the plaintiff's remedy is to apply for restoration of the suit under Order 9, C. P. C., and satisfy the Court that there was sufficient cause for his non-appearance on that date. In case (c), his remedy is to apply for setting back the clock and giving him a fresh opportunity, on satisfying the Court that there was sufficient cause for the default in performing such act for which he had taken time.

(5) When the defendant does not appear on an adjourned hearing, the Court may, under Rule 2, either (a) postpone the hearing to another date, maintaining the same stage at which the case is; or (b) if the defendant had taken time to produce evidence or to perform any other act, close his right and adjourn the hearing for further trial; or (c) proceed with the trial in the absence of the defendant and after such ex parte trial, may pass an ex parte decree or dismiss the suit. In case (b) his remedy would be to apply for setting back the clock and to seek a fresh opportunity, on satisfying the Court that there was sufficient cause for the default. In case (c) his remedy would be under Order 9, Rule 13, for setting aside the ex parte decree on showing sufficient cause for his non-appearance on that date.

(6) Rule 3 of Order 17, applies where a party is present and has committed the default referred to in the rule. This Rule does not apply to a case where Rule 2 applies. Rule 3 contemplates the presence of the parties.

(7) Where the counsel representing a party appears merely to report no instructions, such appearance is in the counsel's personal capacity. It is in discharge of a duty or courtesy to the Court that he informs the Court not to wait for him, since he would not appear for want of instructions. Such appearance of the counsel does not tantamount to appearance of the party whom he represents. But where a counsel appears and seeks adjournment, and, when the adjournment prayed for is refused, he abstains from taking part in the proceeding saying that he has no further instructions, it tantamounts to the appearance of the party. It is as if the party had appeared in person, sought an adjournment and, on adjournment being refused, abstained from taking part in the proceedings or disappeared from the Court room. In the latter case, the Court can proceed under Rule 8. Appearance or non-appearance has to be seen at the point of time when the case is called on for hearing; a subsequent walk out or disappearance during the course of the proceedings on the same day is not non-appearance for the purposes of Rule 2, or Rule 3.

(8) The word 'notwithstanding' in Order 17, Rule 3, C.P.C., is for the removal of doubt.

(9) Where in spite of non-appearance of a party, the Court proceeds under Rule 3 and even if it expressly mentions that Rule in its order, the aggrieved party is entitled to treat that order as one under Rule 2 and take recourse to the remedy under Order 9.

(10) Where, in spite of non-appearance of a party, the Court erroneously proceeds under Rule 3 (whether it expressly mentions that Rule or not) and the aggrieved party prefers an appeal, the appellate Court must set aside the decree appealed from and substitute an order under Rule 2, leaving the defaulting party to take recourse to an appropriate remedy under Order 9, in the lower Court against such order, if he is aggrieved by such substituted order.

(11) Where the Court rightly proceeds under Rule 3, but wrongly mentions Rule 2 in its order, the remedy under Order 9 will also be available to the aggrieved party, in addition to the more appropriate remedy by way of appeal, because the party misled by an act of the Court cannot be made to suffer on a mere technical ground.

(12) Where both parties appears and the Court decides the suit under Rule 3 (whether it mentions Rule 3 or not), the only remedy available to the aggrieved party against such decree is by way of an appeal and he cannot take recourse to a remedy under Order 9 on the ground that the Court should not have decided the suit under this Rule.

20. On the basis of the conclusions stated above, we answer the questions referred to us as follows:--

(i) First question:--

It is not open to the Court to proceed under Order 17, Rule 3, C.P.C., in the absence of a party. In case of non-appearance of a party the matter must be dealt with under Order 17, Rule 2, C.P.C. However, under Rule 2 the Court has widest possible discretion to dispose of the suit in one of the modes directed by Order 9, C.P.C. or to make such other order as it thinks fit, but not to dismiss the suit on merits. The discretion has to be exercised on sound judicial principles and it will be subject to scrutiny by the superior Court. (ii) Second question:-- Where the Court proceeds under Order 17, Rule 3, in the absence of a party, although the other conditions laid down in the said Rule are fulfilled, the order must be construed as one under Order 17, Rule 2, not on the ground that it was not expedient for the Court to do so, but on the ground that the Court had no power to do so.

21. We record our thanks to Shri Bhagwandas Gupta and Shri G. P. Patankar for that valuable assistance as amicus curiae.

22. The case shall now be laid before the learned single Judge.


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