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Chhotabhai and anr. Vs. Iswaribhai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 614 of 1978
Judge
Reported inAIR1982Ori203
ActsCode of Civil Procedure (CPC) , 1908 - Order 17, Rule 2
AppellantChhotabhai and anr.
Respondentiswaribhai
Advocates:S.C. Mohapatra, Adv.
DispositionRevision dismissed
Excerpt:
.....v smt gita banik, 1996 (2) glt 246, are not good law]. - on 25-9-1974 the evidence of pws 1 to 6 recorded by the commissioner as well as the exhibits marked by him were directed to be treated as evidence, plaintiff no. --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......examining this question it would be proper to recall that at the stage of hearing of the money suit, evidence on the plaintiffs' side had been recorded and closed before the ex parte judgment was pronounced, but no evidence, oral or documentary, on the side of the defendant had been recorded by the court, order xvii, rule 2, c. p. c provides as follows:--'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.....
Judgment:
ORDER

B.N. Misra, J.

1. This revision is directed against the order dated 10-11-78 passed by the learned Subordinate Judge. Sam-balpur, in Misc. Case No. 93 of 74 allowing the application under O. IX, R. 13, C. P. C. filed by the defendant-opposite party,

2. The facts may be briefly stated. Petitioners as plaintiffs have filed Money Suit No. 6 of 63 in the court of the learned Subordinate Judge, Sambalpur, for recovery of Rs. 92750/- from the defendant-opposite party with pendente lite and future interest at 9 per cent per annum. The defendant had appeared in the trial court and filed his written statement on 14-12-63. The suit was posted for the first time for hearing to 10-4-64. After several adjournments and examination and cross-examination of six witnesses for the plaintiffs the suit was posted to 24-9-74 for hearing. On that date the plaintiffs were present with three witnesses, but the defendant did not take any steps and neither he nor his Advocate was present when the casewas called. The court set the defendant ex parte and posted the case to 25-9-1974 for further hearing. On 25-9-1974 the evidence of PWs 1 to 6 recorded by the Commissioner as well as the exhibits marked by him were directed to be treated as evidence, plaintiff No. 1 was examined as PW 7, some more documents on the say of plaintiffs were marked as exhibits, the evidence on the side of the plaintiffs was closed, the learned Advocate for the plaintiffs was heard and the suit was posted to 30-9-1974 for judgment. After three adjournments the judgment was finally delivered on 9-10-1974. The plaintiffs' suit was decreed with costs and pendente lite and future interest were awarded at the rate of 6 per cent per annum. The decree was sealed and signed on 17-10-1974. On 5-11-1974 the defendant-opposite parly filed a petition under O. IX, R. 13, C. P. C. to set aside the judgment and decree passed against him in the suit, The defendant pleaded that he was ill and bedridden from 18-9-1974 till the first week of October and as such could not attend the hearing of the suit on 24-9-1974 and 25-9-1974. The plaintiff-petitioners filed a counter denying the plea of illness of the defendant. According to the plaintiffs, the defendant was quite hale and hearty in September and the story of his illness was false. The defendant examined himself and Ms doctor in support of his case while the plaintiffs did not examine any witness. The defendant also filed a medical certificate in support of his plea of illness, After hearing both sides the learned Subordinate Judge by his order dated 10-11-1978 held that illness had prevented the defendant from appearing in court on 24-9-1974 and 25-9-1974. Accordingly the defendant's petition was allowed and the ex parte decree passed against him was set aside subject to payment of Rs. 300/- as costs by the defendant to the plaintiffs.

3. Learned counsel appearing for the plaintiffs has assailed the aforesaid order of the learned Subordinate Judge mainly on the ground that in the facts of this case the provisions contained in Order IX, Rule 13, C. P. C. were not attracted and that the judgment and decree in the suit must be held to have been passed under the Explanation of Order XVII, Rule 2, C. P. C. Before examining this question it would be proper to recall that at the stage of hearing of the Money Suit, evidence on the plaintiffs' side had been recorded and closed before the ex parte judgment was pronounced, but no evidence, oral or documentary, on the side of the defendant had been recorded by the court, Order XVII, Rule 2, C. P. C provides as follows:--

'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.'

A plain reading of the explanation makes it clear that the Court is em-powered to proceed with a case even in the absence of a party provided that the evidence or a substantial portion of the evidence of that party has already been recorded. In the present case the evidence on the side of the plaintiffs had been recorded. No evidence had been recorded on the side of the defendant and on 24-9-1974 and 25-9-1974 the defendant was absent, not the plaintiffs. Therefore, the explanation cannot have any application to the facts of this case. On going through the order-sheets dated 24-9-1974 and 25-9-1974 I find that the court proceeded with the suit according ito the provisions contained in Order IX,C. P. C. and, hence I must hold that Order IX, Rule 13, C. P. C. is applicable to the facts of this case.

4. Further, on going through the impugned order I find that the learned Subordinate Judge has considered the respective cases of the parties and has come to hold that the defendant had been prevented by sufficient cause from appearing in court on 24-9-1974 and 25-9-1974. This finding of fact does not call for any interference.

5. In the result, this revision is dismissed and the order of the learned Subordinate Judge is confirmed. There shall be no order as to costs.


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