1. Title Suit No. 24 of 1961 in the Court of the Subordinate Judge. Bolangir, had been fixed to 26-10-62 for hearing. On that day plaintiffs filed hazira. Defendant 1 filed a petition for time on the ground of absence of their witness. The Court passed orders to the effect.
'Put up on 31-10-62 for hearing. Parties to come ready.'
On 31-10-62 the Court passed the following orders:
'Order No. 15 : Plaintiffs filed list of witnesses Defendant 1 files a petition for lime on the ground that his advocate is engaged in Sessions case. Time petition is rejected as frivolous Advocates being busy in another Court is no ground for adjournment Defendants to gel ready at once.
Sd D. P. Sharma,
'Order No. 16: Plaintiffs ready Defendants are present and left saving that they would engage another lawyer as their lawyer is busy elsewhere The lawyer when sent for says that he has got powers but he had no instruction to act The defendants were given time for 10 minutes. Even though 10 minutes passed, they failed to turn up on repeated calls. Hence they are set ex parte. Plaintiffs are called upon to lead evidence.
Sd D.P. Sharma.
The earlier the learned Judge examined evident in the side of the plaintiffs and decreed the suit with costs, along with another suit tried analogously with it, ex parte against the defendants On 21 11-62 defendants filed an application under Order 9, Rule 13, C. P. C. for set ting aside the ex parte decree which was recorded as Misc. Case 91 of 1962. The miscellaneous case was dismissed by Sri M.J. Rao. Subordinate Judge, on 26-3-1963. Against this order dismissing the application under Order 9, Rule 13, C P. C the Miscellaneous Appeal has been filed.
2. The application was dismissed on two grounds.
(i) Defendants failed to make out sufficient cause for their failure to appear; and
(ii) The ex parte decree passed by Sri D.P. Sharma was under Order 17, Rule 3, C P C. against which an appeal lay and that Order 9, Rule 13, C.P.C. cannot he invoked for setting aside such a decree
Mr. Misra conlends that both the grounds are untenable.
3. Order No. 16 dated 31-10-62 passed by Sri D P Sharma does not show whether it was passed under Order 17, Rule 2 or Rule 3, C.P. C. Order No 16 was passed on a date to which the suit had been adjourned for hearing and parties had been directed to come ready with their evidence Order 17, Rule 3 lays down that where any party to a suit to whom time has been granted fails to produce 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. Rule 2, on the other hand, prescribes that where on any day to which the hearing of the suit is adjourned, the parties or any of them fall to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by 0. 9, or to make such other order that it thinks fit. One of the marked distinctions between the two rules is that while in R. 2 there is emphasis on the expression 'on the failure of the party to appear', there is no reference to it at all in Rule 3. The latter rule puts emphasis on failure of duty on the part of the party to do certain things as previously directed. It does not appear to cover a case where the party himself defaults to appear and in consequence thereof does not take the necessary steps as previously directed. The consensus of opinion therefore is that Rule 3 would apply to a case where the party is present in Courl hut committed types of defaults referred to in the Rule.
3A. On 20-10-02 the suit had been adjourned to 31-10-62 for hearing on the application of the defendants and the parlies had been directed to come ready with their evidence. One of the conditions prescribed in Order 17, Rule 3 is thus fulfilled. Defendants failed to produce their evidence on the date to which the suit had been adjourned for production of evidence
4. Order No. 16 shows that the defendants were present in Court. On their application for adjournment that their lawyer was busy in a sessions case in another Court and was not available to conduct their case, the Court sent for the advocate who said that he had no instructions. Thereafter, the defendants were given only 10 minutes time to engage another advocate to conduct their case. It is almost impossible to engage an advocate to conduct an original suit within 10 minutes. After the expiry of 10 minutes, the Court called out the case. Defendants did not respond to the calls and were set ex parte. Though earlier the defendants were present in Court, their advocate endorsed no instructions and they absented themselves as being unable to further prosecute their defence due to want of a counsel. Thus at the time the case was ultimately called upon for hearing, they must be treated as not to have appeared in Court. As to the meaning of the word 'appearance', and whether in such circumstances there was 'appearance' on behalf of the defendants, the Jaw is fully discussed in AIR 1964 Orissa 246, Mulia Maharana v. Narayan Patra.
5. The position can be thus summed up. Though the suit had been adjourned to 31-10-62 for hearing and production of evidence on the application of the defendants, on the adjourned date the defendants not only failed to produce their evidence but also failed to appear in Court Thus there was a double default.
6. As to the applicability of Order 17, Rule 3, C. P. C in such circumstances there is conflict of authority, AIR 1964 Raj 147 (FB) fully supports the contention of Mr. Mohapatra that even to such a case, Order 17, Rule 8 applies. On the contrary, AIR 1961 Andh Pra 201 (FB), AIR 1943 Bom 321 (FB) a series of the decisions of the Patna High Court, AIR 1928 Pat 167 and AIR 1918 Pat 256 and of the Calcutta High Court have taken the contrary views. The Bombay case fully applies to the facts of the present case. The Calcutta cases on the points were fully reviewed by this Court in the aforesaid Orissa decision in which under similar circumstances it was held that Order 17, Rule 2 would apply. I am inclined to accept the Bombay case as laying down the correct law as was observed in the Orissa decision. AIR 1928 Pat 167 even goes further. In that case, the petitioner had taken time to produce his evidence from time to time. Ultimately the Court refused to grant time and dismissed the application The hearing of the suit had however not been commenced. Their Lordships held that Order 17, Rule 3 would apply where the hearing had commenced and an application for adjournment had been then made by one of the parties. If, before the hearing of a suit is commenced, the plaintiff' fails to appear on the adjourned date, the Court shall proceed under Rule 2 and not Rule 3. That is to say, it has power to dismiss the suit under Order 9, Rule 8 so as to give the plaintiffs an opportunity of having the dismissal set aside under Order 9, Rule 9, C. P. C. In AIR 1964 Ori 246 this Court observed:
'The ambit of this Rule (Order 17, Rule 3) is that if a party is present in Court but fails to fulfil the requirements prescribed in the Rule for which time has been granted, the Court can proceed to decide the suit forthwith. Emphasis is to be laid on the words 'notwithstanding such default'. The default referred to is not one of non-appearance, of the party but is one of non-compliance with the various steps taken for the progress of the suit for which time has been granted'
I adhere to the view as expressed in the aforesaid passage. With respect I do not agree with the view expressed in the Rajasthan Case.
7. In this case, the defendants did not appear in the suit within the meaning of 'appearance' as discussed in the Orissa decision. The disposal of the case by the learned Sub-ordinate Judge would not therefore come within the purview of Order 17, Rule 3, C. P. C. The order of the learned Subordinate Judge upholding a preliminary objection that an application under Order 9, Rule 13, C. P. C. is not maintainable must accordingly be reversed.
8. The next question for consideration is whether there was sufficient cause for the failure of the defendants to appear. Order 9, Rule 13, C. P. C. has been amended in Orissa. The relevant portion of the amendment is:
For the words 'he was prevented by sufficient cause from appearing', the expression 'there was sufficient cause for his failure to appear' has been substituted. The cause that was ultimately pressed for the failure of the defendants to appear was the non-availability of their advocate for conducting their case as he was busy in a Sessions Case in another Court. The question is whether it would come within the meaning of sufficient cause for the failure of the defendant to appear. In my view there was sufficient cause for their failure to appear. Plaintiffs' suit was for a declaration that the sale-deed executed by defendant 4 in favour of defendants 1 to 8 on 10-9-00 in respect of the disputed land was invalid and not binding on the plaintiffs beyond the lifetime of defendant No 4. The suit raised certain substantial questions of law and complicated questions of fact. Defendant 4's husband Iswar died in 1951. The alienation by her in favour of defendants 1 to 3 was in 1900. If she was continuing in possession of the disputed property after the death of her husband, she acquired an absolute title, and a reversionary suit is not maintainable. Even if a reversionary suit is maintainable, the proof of legal necessity and benefit to the estate is essential. In a suit of this nature, when the advocate endorsed no instructions, it would be difficult to expert the defendants to proceed with their suit effectively. Ten minutes granted by the Court is hardly sufficient for going through the plaint and written statement and much less for a proper understanding of the case before it is handled. Even if another advocate was available, it would have been difficult for him to do justice to the case, however brilliant he might be. Even without evidence, the defendants could proceed with the suit if their advocate had been available to them. In the admitted position that the advocate for the defendants endorsed no instructions, the defendants had sufficient cause for their failure to appear. In Civil Revn. No. 228 of 1962: (AIR 1964 Orissa 104). Mukta v. Harischandra, the legal position was discussed as to whether the nonavailability of a pleader would be a sufficient cause. It was held that no hard and fast general rule can be laid down and each case will depend upon its own facts, The reasons given in that judgment need not be repeated AIR 1963 SC 140 which throws some tight on the question may be noticed. Mr. Justice Dasgupta in para. 24 observed as follows:
'It appears to me that when a counsel engaged by a party refused to address the Court on behalf of his client, it is next to impossible for a client to engage another counsel on the spot to argue the case, and ordinarily impossible for the counsel thus engaged to address the Court then and there. It is not also reasonable, in my opinion to expect that a lay client should be able to argue his appeal. To ask the appellant personally in circumstances like this to argue the appeal is to ask for the impossible. It appears to me to be neither fair nor just that when a counsel suddenly withdraws from a case, the lay client should be asked to argue the appeal himself. Justice in my opinion, requires that in such a case the client should be given sometime, however short, to engage a counsel.'
It is, however, to be stated that this was the view given by the learned Judge in his dissenting judgment. The other two learned Judges, however, did not take a contrary view on this aspect of the question but decided not to interfere under Article 136 of the Constitution with the order of the High Court as it related to exercise of discretion. The merit of the observation in the dissenting judgment therefore stands.
9. In this case I am sitting in a first appeal and the amplitude of the power to be exercised by me is co-extensive with that of the trial Court. With respect, I follow the aforesaid dictum. The learned Subordinate Judge failed to appreciate this aspect of the matter and on the question of fact I am of opinion that there was sufficient cause for the failure of the defendants to appear.
10. Thus both the contentions succeed. In the result, the appeal is allowed with costs. There will be no order as to costs in the miscellaneous case. The suit is restored to file. The learned Subordinate Judge is directed to dispose of the suit within four (4) months from to-day The records be sent back at once.