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Smt. Shantabai Vs. Chokhelal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 7 of 1971
Judge
Reported inAIR1976MP21
ActsCode of Civil Procedure (CPC) , 1908 - Order 9 - Order 17, Rules 2 and 3
AppellantSmt. Shantabai
RespondentChokhelal
Appellant AdvocateB.L. Thakur, Adv.
Respondent AdvocateY.S. Dharmadhikari, Adv.
Cases ReferredArjunsingh v. Mohindra Kumar
Excerpt:
.....his failure to perform the acts referred to in rule 3 was due but was not given on account of his absence. 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. if the court can do so in the presence of the party at fault he cannot deprive the court of this power merely by remaining absent even assuming that there is good cause for his absence. for example, a suit may be dismissed by the court in the absence of a plaintiff under order 9, rule 3 or under order 9, rule 8. there can be no doubt that the court is competent to dismiss the suit merely on account of the absence of the..........the case under rule 3 of order 17. it is, therefore, clear that where the case falls within the purview of rule 3, the court, in the absence of the party concerned, is not bound to dispose of the suit in one of the modes directed in that behalf by order 9; but has a discretion to decide the suit on the material before it.10. thus it would appear that rule 3 postulates a decision on merits upon material that may be available irrespective of the consideration whether the party in default is present or not. where a party remains absent after obtaining an adjournment for producing evidence or doing any other act necessary for the progress of the suit the court has a discretion to proceed either in one of the ways laid down in order 9 or to proceed to dispose of the suit on merits under rule.....
Judgment:

Raina, J.

1. The following questions have been referred to this Bench for opinion by a Division Bench while dealing with this appeal:

(1) Whether it is open to the Court to proceed under Order 17, Rule 3 of the Code of Civil Procedure in the absence of a party where the conditions laid down in the said rule are fulfilled and it appears just and proper to do so?

(2) Where the Court has proceeded to decide the case on merits under Order 17, Rule 3, of the Code of Civil Procedure in the absence of a party, is it open to the party aggrieved by the decision to Hie an application for setting aside the decree by an application under Order 9 of the Code?

(3) Where the party aggrieved prefers an appeal against a judgment and decree under Order 17, Rule 3 of the Code of Civil Procedure, is the Appellate Court bound to allow the appeal, merely on the ground that the Court had no jurisdiction to pass an order under Order 17, Rule and to substitute an ordei under Order 17, Rule 2 of the Code, leaving the defaulting party to take recourse to an appropriate remedy under Order 9 in the lower Court; or whether the appellant cannot succeed unless he is able to show that there was suffi-cinet cause for his non-appearance on the date of hearing?

2. This reference has been made apparently because of some conflict of authorities. In Madanlal v. Narayan, AIR 1972 Madh Pra 8, it was held by a Division Bench of this Court that if: is not open to the Court to proceed under Order 17 Rule 3 of the Code of Civil Procedure in the absence of a party. In Sita Bai v. Vidyawati, AIR 1972 Madh. Pra. 198, another Division Bench proceeded upon the view that it is open to the Court to proceed under Order 17, Rule 3 of the Code even in the absence of a party. In Narbada Prasad v. Awadesh Narain, AIR 1973 MP 179, the view expressed in Sita Bai V. Vidyawati (supra) was ignored on the ground that the observations made therein were obiter dicta. It was to resolve this conflict that the Division Bench made this reference.

3. The answers to the questions before us depend upon the construction of Rules 2 and 3 of Order 17 of the Code ot Civil Procedure which has been the subject of conflicting decisions not only in this High Court but in other High Courts as 'well. In Pichamma v. Sreeramulu, ILR (1918) 41 Mad 286 = (AIR 1918 Mad 143 (2)) (FB), it was held by a majority that Rule 2 applies to all cases of absence of parties whether time was granted or not to do any of the acts mentioned in Rule 3 while Rule 3 applies only to cases where parries are present and commit default of the kind mentioned in the Rule, Wallis, C. J., however, differing from the majority view expressed the opinion that Rules 2 and 3 are not mutually exclusive and Rule 3 may be applied even in the absence of the defendant. The aforessid decision was relied upon by the Judicial Commissioner's Court at Nagpur in Bhivraj v. Janardhan, (1934) 30 Nag LR 94 = (AIR 1933 Nag 370). It was held therein that the proper way of interpreting Rules 2 and 3 of Order 17 is to treat thedisposal of the suit as having been made in accordance with Rule 2 in cases when, on account of the non-appearance of the party, the explanation of his failure to perform the acts referred to in Rule 3 was due but was not given on account of his absence. It was further observed that Rule 8 oi Order 12 presupposes the appearance of the party at whose instance the case was adjourned. In Dayalji v. Kedarnath, AIR 1953 Nag 222. Mudholkar, J. held that where it is not clear whether a particular case is under Rule 2 or Rule 3 of Order 17, the Court must lean in favour of holding that the case falls under Rule 2.

4. The view that in the absence of a party, the Court should ordinarily proceed under Rule 2 of Order 17 and not under Rule 3 and where it is not clear under which provision the Court has acted, the disposal of the suit, in the absence of a party, must be construed as under Rule 2 has been generally accepted in a number of decisions of this Court. In Maruti v, Gangadhar Rao, 1964 Jab LJ 559. Dixit C. J., following the decision of the Nagpur Judicial Commissioner's Court in Bhivraj v. Janardhan (supra) held that Rule 3 of Order 17 presupposes the appearance of the party at whose instance the case was adjourned but who is unable to give proper explanation for his omission to perform the specific act or acts for which the adjournment was granted at his instance. A similar view was expressed by Bhave, J. in Lakhanlal v. Dasroolal, 1967 Jab LJ (Short Note) 95. It appears that this line of reasoning was adopted by the Division Bench consisting of Shiv Dayal and K. K. Dube, JJ. in Madanlal v. Narayan (supra) holding that it is not open to the Court to proceed under Rule 3 of Order 17 in the absence of a party. It is not clear from the Judgment whether the contrary view expressed in some cases was taken into consideration or not.

5. In Kanhaiyalal v. Usmanali, 1960 Jab LJ (Short Note) 174, P. R. Sharma, J., expressed the view that the non-appearance of a party would not be a sufficient ground for holding that the provisions of Rule 3 of Order 17 are not attracted. A similar view was expressed by him in Sunderlal v. Moti-lal, 1962 Jab LJ (Short Note) 169. It was held in that case that the mere fact that the plaintiff absented himself would not be a ground for not applying the provisions oi Rule 3 of Order 17 to the case. In Basa-linganpa v. Shidramappa, AIR 1943 Bom 321 (FB), the Bombay High Court considered a case where a party, at whose instance an adjournment had been granted, remained absent on the adjourned date. It was held that in such a case, if there are no materials on record, the appropriate procedure to follow would be that laid down in Rule 2 of Order 17; but if there are materials on re-cord, the Court ought to proceed under Rule 3 of Order 17. The Gujarat High Court adopted a similar view in Ismail Suleman v. State, AIR 1971 Guj 42. It was held therein that where a suit has already begun and is part heard and for the further progress it has come to be adjourned at the instance of the party who commits default in appearance on the adjourned date, the Court has to proceed with the suit on merits under Rule 3 rather than under Rule 2 of Order 17. The Delhi High Court also took the same view in Dayal Chand v. Sham Mohan, AIR 1971 Delhi 183. In the Code of Civil Procedure by Chitaley, Eighth Edition, Vol. 2, at page 1233, the cases of other High Courts, which have adopted this view, have been mentioned and it is not necessary to refer to all of them here.

6. It is thus clear that a number of High Courts have adopted the view that it is open to the Court to proceed under Rule 3 of Order 17 even in the absence of the party at whose instance the case was adjourned, although it would not be proper to do so where there is no sufficient material on record to enable the Court to decide the case on merits.

7. As the matter turns on the construction of rules 2 and 3 of Order 17 of the Code of Civil Procedure, it is necessary to examine carefully the language of the said rules which are reproduced below:

'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 necassary 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.''

8. It would be pertinent to notice that there is nothing in the language ci Rule 3 to indicate that it comes into operation only where the party in default is pre-sent and that the powers conferred thereunder cannot be exercised in his absence. The reason is obvious. Where a party commits a default of the nature specified in Rule 3 after securing an adjournment for the purpose, Rule 3 empowers the Court to decide the suit on merits. If the Court can do so in the presence of the party at fault he cannot deprive the Court of this power merely by remaining absent even assuming that there is good cause for his absence. The view that Rule 3 of Order 17 presupposes the appearance of the party at whose instance the case was adjourned is apparently based on the consideration that it would not be proper for the Court to exercise its powers under the said Rule unless the party concerned is present and has thus an opportunity to offer an explanation for his default. But if we carefully analyse the scheme of the Code it would appear that wherever the Court has been empowered to pass a particular order on account of the default of a party, it is not necessary that the party should have an opportunity to offer an explanation for the default. For example, a suit may be dismissed by the Court in the absence of a plaintiff under Order 9, Rule 3 or under Order 9, Rule 8. There can be no doubt that the Court is competent to dismiss the suit merely on account of the absence of the plaintiff without waiting to find out whether he has a good reason to remain absent or not. What remedy a party may have to pursue when a suit is decided one way or the other on account of default is another matter. We are, therefore, unable to accept the view that the Court is not competent to decide a suit under Order 17, Rule 3 in the absence of the party concerned.

9. Rule 2 of Order 17 expressly deals with the procedure to be followed by the Court where the parties or any of them fails to appear on any day to which the hearing of the suit is adjourned. Under this rule the Court has a discretion either to dispose of the suit in one of the modes directed in that behalf by Order 9 or to make such other order as it thinks fit. The expression 'or make such other order as it thinks fit' in the said rule is wide enough to include an order disposing of the case under Rule 3 of Order 17. It is, therefore, clear that where the case falls within the purview of Rule 3, the Court, in the absence of the party concerned, is not bound to dispose of the suit in one of the modes directed in that behalf by Order 9; but has a discretion to decide the suit on the material before it.

10. Thus it would appear that Rule 3 postulates a decision on merits upon material that may be available irrespective of the consideration whether the party in default is present or not. Where a party remains absent after obtaining an adjournment for producing evidence or doing any other act necessary for the progress of the suit the Court has a discretion to proceed either in one of the ways laid down in Order 9 or to proceed to dispose of the suit on merits under Rule 3. This discretion must, however, be exercised on sound judicial principles keeping in view the stage of the suit and the conduct of the party concerned during the trial. We find nothing in either Rule 2 or Rule 3 to fetter the discretionoi the Court from proceeding under Rule 3 merely because the party at whose instance the case was adjourned chooses to remain absent. There may be a case where the entire evidence has been recorded and at that stage the defendant seeks an adjournment for producing a document or a witness. In such a case, if the defendant remains absent on the adjourned date, the Court may proceed to dispose of the suit on merits and the decree passed cannot be treated as an ex parte decree. Thus, where the Court expressly decides a suit under Rule 3 of Order 17, the proper remedy for the party concerned would be to file an appeal. In such a case, if the appellate Court finds that the lower Court was not justified in proceeding under Rule 3 of Order 17, it may substitute the order of the lower Court by an order under Rule 2 of the said Order giving the party concerned an opportunity to make an application for setting it aside under the relevant provisions of Order 9; but it is not bound to do so where it is satisfied that the lower Court was justified in deciding the case on merits in the circumstances of the case.

11. We may here observe that the provisions of Rule 3 of Order 17 being of stringent nature should not ordinarily be applied by the Court in the absence of the party concerned unless there is sufficient material on record to give a decision on merits and the Court considers it just and proper to do so in the circumstances of the case. Rut we would like to make it clear that the Court has jurisdiction to proceed under Rule 3 of Order 17, even in the absence of a party and, where it chooses to exercise this jurisdiction -- even though wrongly -- the proper course for the party concerned would be to prefer an appeal. Where a suit has been decided in the absence of a party and it is not clear whether the Court has proceeded under Rule 2 or Rule 3 of Order 17, it must be assumed that the Court has proceeded under Rule 2.

12. We may here refer to the decision of the Supreme Court in Arjunsingh v. Mohindra Kumar, AIR 1964 SC 993, on which Shri Y, S. Dharmadbikari, learned counsel for the respondent, strongly relied in support of his contention that it is open to the Court to proceed under Rule 3 of Order 17 even in the absence of the party concerned. He pointed out that from the discussion in paragraph 22 of the judgment it is clear that their Lordships proceeded upon the view that absence of a party did not automatically make the provisions pi Rule 3 of Order 17 inapplicable. There seems to be some force in this argument.

13. We, therefore, answer the questions referred to us as under:

(1) It is open to the Court to proceed under Order 17, Rule 3 of the Code ofCivil Procedure in the absence of a party where the conditions laid down in the said rule are fulfilled and it appears just and proper to do so.

(2) Where the Court has proceeded to decide the case on merits under Order 17, Rule 3 of the Code of Civil Procedure in the absence of a party, it is not open to the party aggrieved by the decision to file an application for setting aside the decree under Older 9 of the Code.

(3) Where the party aggrieved prefers an appeal against a judgment and decree passed under Order 17, Rule 3 of the Code of Civil Procedure, the appellate Court is not bound to allow the appeal, merely on the ground that the Court had no jurisdiction to pass an order under Order 17, Rule 3, of the Code against the party who was absent. The appellate Court, in such a case, will have to examine whether the lower Court properly exercised its jurisdiction ill proceeding under Order 17, Rule 3. If it is of the view that the lower Court rightly proceeded under Order 17, Rule 3, in the circumstances of the case and the decree passed by it is otherwise proper, it may dismiss the appeal. But, if it is of the view that the lower Court should not have proceeded under Order 17, Rule 3, it may substitute an order under Order 17, Rule 2 of the Code of Civil Procedure, leaving the defaulting party to take recourse to an appropriate remedy under Order 9 of the Code in the lower Court.


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