B.N. Misra, J.
1. This appeal under Order XLIII, Rule 1 (d) of Civil P. C. is directed against the order dated 24-1-1979 made by the learned Second Additional Subordinate Judge of Cuttack refusing to vacate the ex parte decree dated 13-2-1978 made in Money Suit No. 151 of 1971.
2. Orissa Supply Agency was a registered partnership firm of whichplaintiff and defendants 2, 3 and 4 were partners. The money suit was filed by Mirza Jaliludin, one of the partners, for a declaration that the firm stood dissolved with effect from 1-4-1968 upon plaintiff's retirement and plaintiff was entitled to his share in the firm with interest at six per cent per annum thereupon. The suit was decreed on contest on 21-6-1974. It was declared that the plaintiff and defendants 2, 3 and 4 had each one-fourth share in the firm and it had been dissolved with effect from 1-4-1968 when plaintiff retired from the partnership firm. Defendants were directed to render accounts till dissolution and the claim of the plaintiff was allowed to be determined by a pleader commissioner on the basis of examination of the accounts. At the instance of the plaintiff, a pleader commissioner was appointed on 20th of Sept. 1974 and he submitted his report on 4-8-1975. On 20th of April, 1976, the pleader commissioner was examined and cross-examined and his report was marked as Ext. 1. The commissioner's report was accepted as a part of the evidence for the final decree proceeding. Leave was granted to have two money receipts examined by a handwriting expert at defendants' cost. On 8-9-1976, the handwriting expert's report was received in Court. The final decree proceeding suffered several adjournments at the instance of the parties as also on account of pre-occupation of the Court. On 27-1-1978, the Court made the following order :--
'Both parties file haziras. Heard. No time today being engaged in bearing part-heard arguments in T. A. 40 of 1975. Case is fixed to 13-2-1978 to ad-duce evidence, if any.'
On that day, the plaintiff's advocate was present while the contesting defendants were not represented by advocates. The Court directed:--
'.....The only way open to the defendants is to prove that payments of Ra 28,646.16 as mentioned above have been made to the plaintiff. The defendants look several times to adduce the evidence to prove the payment of Rupees 28,646.16. But till now they are not able to produce any witness to that effect. Hence, the hearing on Commissioner's report stands closed when the defendants failed to adduce any evidence. Therefore, the report of the Pleader Commissioner being accepted is to fee worked out. Hence, the plaintiff isto recover Rs. 38,613.02 from the defendants. Therefore, the decree is made final'......
On 14-3-1978, defendant applied under Order IX, Rule 13 of Civil P.C. for reopening the matter. The second defendant's name was shown in the application though he was admittedly dead on 9th of March, 1978. On 10-5-1078, an application was made on behalf of the defendants for impleading the legal representatives of the second defendant. On 4-9-1978, the learned trial Judge made the following order:--
'..... The petition dated 9-5-1978 ofthe petitioners in Misc. Case to delete the name of deceased petitioner No. 2 from the category of the petitioner and to implead his legal representatives as described in the schedule of the petition as pro forma opposite parties from 2 to 7 is put up. Perused the counter filed by the opposite party. Heard counsel from both the sides. At the outset the learned counsel for the opposite party Mirza Zaliludin urged that there cannot be any substitution of petitioner No. 2 who died on 9-3-1978 and the present miscellaneous case was filed on 14-3-1978, since the miscellaneous case was not pending on the date of death of petitioner No. 2. The learned counsel for the petitioners resorts to the provision of Order 22 of the C. P. C. I find on a bare reading of the provisions of Order 22, C. P. C. that the provisions refer to pending suits. Therefore, ihe petitioners cannot resort to 0. 22, C. P. C. for substitution. Alternatively, the learned counsel for the petitioners urged that he may be allowed to amend the miscellaneous petition by way of an amendment incorporating the facts given in schedule of the petition dated 9-5-1978. In the premises, since the petition bears a composite character of substitution and amendment it shall not be entertained for consideration unless a regular petition for amendment is filed if so advised which shall be disposed of on merits after hearing objection from the opposite party.....'
On .18-9-1978, a formal application for adding the legal representatives of the original defendant No. 3 as pro forma opposite parties 2 to 7 was filed. On 8-1-1979, the learned trial Judge allowed the application and directed the legal representatives of the defendant No. 2 to be added as pro forma opposite parties. On 24-1-1979, by the impugned order,the learned trial Judge rejected the application under Order IX, Rule 13 of the Code on the ground that it was barred by limitation in view of the fact that the legal representatives of the original defendant No. 2 were added after expiry of the period of limitation. This order is assailed.
3. In view of the submissions advanced during hearing of the appeal at the Bar, three questions arise for consideration : --
(i) Whether the defendants could rely upon the provisions of Order I, Rule 10, Civil P. C., in the facts of the case?
(ii) Whether the application under Order IX, Rule 13 of Civil P. C. was maintainable and
(iii) In case such an application lay, whether there was sufficient cause for vacating the ex parte order making the preliminary decree final?
4. The order making the preliminary decree final was made on 13-2-1978 and the seconl defendant had died on 9-3-1978. The application under Order IX, Rule 13, C. P. C. was filed on 14th of March, 1978, but it purported to be also on behalf of the second defendant who was since dead. When this fact was realised, on 10-5-1978 prayer to delete the name of the second defendant and to bring his legal representatives on record was made. On 4-9-1978, the learned trial Judge refused to delete the name of the second defendant and bring the legal representatives on record on the ground that composite prayers have been made in the application. The application dated 10th of May, 1978, made on behalf of ihe defendants actually asked for one relief, namely to delete the name of the second defendant from the category of positioners and to bring the legal representatives of the said deleted defendant on rcord as opposite parties. The trial Court went wrong in rejecting the application by saying that two prayers had been made in one common application, Yet, pursuant to the Court's observation, an application to add the legal representatives of the second defendant as pro forma opposite parties was made on 18-9-1978 and that application was allowed on 8-1-1979. The following order was made that day:--
'Both parties file haziras. The amendment petition of the dated 18-9-78 is put up. Perused the counter. The petitioner by the amendment wants to add the O.P.Nos. 2 to 7 who are the L.Rs. of deceased petitioner No. 2. The learned counsel for the O.P. submits that (so far as) the point of limitation regarding addition of parties is concerned, (the same) be reserved for decision in the misc. case and amendment be allowed. Carry out the amendment. Add O.P. Nos. 2 to 7 in the cause title in the misc. petition.....'
Order XXII necessarily relates to pending proceedings. Admittedly, on 9th of March, 1'978, when the second defendant died, no proceeding was pending where the need to substitute the legal representatives would have arisen. On 14th of March, 1978, i.e. five days after the death, in the application under Order IX, Rule 13 of the Code, the second defendant's name had featured. This required deletion of the name of the deceased defendant No. 2 and bringing on record all his legal representatives. That was exactly what was prayed for on 10-5-1978. The reason to reject that application as found in the order dated 4-9-1978 is not acceptable. As already pointed out, a single prayer was made to delete one of the added parties and to bring the legal representatives on record as pro forma opposite parties. Prayer for substitution as such was not maintainable, but the application could be treated as one under Order 1, Rule 10 of the Code, the principles of which well covered the situation. Sub-rule (1) provides:--
'Where a suit has been instituted in the name of wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.'
The fact of death of the second defendant was overlooked and the application purported to be by the defendants. When the mistake was known, but the legal representatives of the second defendant were not available to join as petitioners, they were asked to be im-pleaded as opposite parties.
An application under Order IX, Rule 13 of the Code was maintainable even without the co-defendants being impleaded. (See Sultan Husain Khan v. Satnarain Lal, AIR 1953 Hyd 191). That being the position, even with the deletion of theaccord (second) defendant and the legal representatives being absent from the cause title of the miscellaneous application, there could be no difficulty in entertaining the matter. In such a situation when the application under Order I, Rule 10 of the Code had been made, the same should not have been rejected. It was more with a view to making the record complete than making the application maintainable that the move seems to have been taken.
5. Law is fairly well settled that Order IX, Rule 13 of the Code applies to final decree proceedings. (See Dolagobinda Sahu v. Nityananda Sahu, (1971) 2 Cut WR 672 : (AIR 1972 Orissa 177) and Mst. Nagina Devi v. Brijnandan Pd. Sinha, (AIR 1972 Patna 310). It has been contended that the application of Order IX, Rule 13 of the Code stood excluded in view of the provisions of Order XVII. On the facts in this case, Rule 3 of Order XVII had no application. The question for consideration is if Rule 2 applied. Rule 2 provides:--
'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.'
As already taken note of, on 13-2-1978, the plaintiff was present and neither the defendants nor their advocate, however, appeared before the Court. In the final decree proceeding evidence as such had not been taken. On an earlier occasion, the Commissioner's report had, however, been accepted by overruling the objection and the said report was directed to be taken as a piece of evidence to be considered in due course. By 13-2-1978, the evidence or a substantial portion of the evidence had not already been recorded. At any rate, if the Commissioner's report formed evidence on the plaintiff's side, the default on that day was not on his side but was of the defendants. Therefore, the situation contemplated by the Explanation added tothe Code by amendment in 1976, was not satisfied.
Even if Order XVII, Rule 2 of the Code applied that did not exclude the application of Order IX, Rule 13 of the Code. Vivian Bose, J., as the learned Judge then was, pointed out in the case of Raghubir Pra-sad v. Pyarelal Amarchand Kalar, AIR 1944 Nag 181, even to a final decree passed ex parte under Order XVII, Rule 2 of the Code, the provisions of Order IX, Rule 13 of the Code were applicable. That view has been approved by a Division Bench of the same Court in the case of Hire-khan Motikhan v. Mt. Narbada Bai, AIR 1952 Nag 177 and a decision of the Mysore High Court in the case of Subbanna Naik Krishna Naik v. Prahlad Ramanna Naik, AIR 1962 Mys 21.
6. It is pertinent at this stage to refer to a single Judge decision of the Calcutta High Court in the case of Lalit Chandra Das v. Sushil Chandra Guha, AIR 1980 Cal 148 (at p. 150), where it has been observed:--
'On the 25th July, 1975, which was the date fixed for hearing, on the prayer of the defendant-petitioner, only the plaintiff-opposite parties were present. So, the case is not covered by the provisions of the amended Rule 3 (a) of Order 17, The case is covered by the provisions of Clause (b) thereof. That clause empowers the Court to proceed according to the provisions of Rule 2.
The Explanation to Rule 2 has no application because on the 25th July, 1975, the plaintiff-opposite parties were present. Consequently, according to the provisions of Rule 2, the Court was enjoined to dispose of the suit in one of the modes prescribed by Order IX of the Code or to 'make such order as it thinks fit.' The effect of those words read with the aforesaid Bench decision of this Court is that if there were materials on the record, the Court could pass a decree. In fact, this was done by the learned Munsif because, as already pointed out, on the 11th Dec., 1974, three P.Ws. were examined. Since there were materials on the record, the Court rightly proceeded to decide it on the merits.' Before the learned single Judge, two Full Bench decisions one of the Allahabad High Court in the case of Munna Lal v. Jai Prakash, AIR 1970 All 257 (FB) and the other of the Madhya Pra-desh High Court in the case of Rama Rao v. Shantibai, AIR 1977 Madh Pra 222 (FB) had been cited, where the wordsin Rule 2 'or make such other order as it thinks fit' were construed not to em-power the Court to dispose of the suit on the merits but only to grant a further adjournment and if the Court did not propose to adjourn the suit, it was held that it could proceed under Order IX, of Civil P. C. and dismiss the suit under Order IX, Rule 8, if the plaintiff did net appear and pass an ex parte decree under Order IX, Rule 6, if the defendant did not ap-pear. The learned single Judge preferred to follow a Bench decision of his own Court in the case of Tulsi Ram v. Sita-ram Sri Gopal, (1959) 63 Cal WN 300 : (AIR 1959 Cal 389), as being bound by It in preference to the two Full Bench decisions. As would appear from the Ob-jects and Reasons for the incorporation of the Explanation in Rule 2 of Order XVII, the Explanation was incorporated to avoid the varied interpretations by different High Courts of the phrase 'make such other order as it thinks fit'. With the Explanation in the statute book, it must follow that unless the situation contemplated in the Explanation was available, the position would be as had been interpreted by the two Full Bench decisions. Order IX, Rule 13 of Civil P. C., therefore, would be applicable and the application made thereunder was, therefore, maintainable.
7. The only other question left for consideration is whether the defendant had been able to establish existence of sufficient cause for non-appearance on 13-2-1978. This aspect of the case has received insufficient treatment in the Court below. The evidence adduced by the parties has not been discussed in the impugned order. The matter has not at all been properly considered. I ant of the view that the matter should go back for a fresh decision by the trial Court. In case parties want further evidence to be laid about the existence of sufficient cause it should be in the discretion of the trial Court to permit such evidence to be laid by both sides in accordance with law.
8. The net result, therefore, is that the Misc. Appeal is allowed and the impugned order is vacated. The matter is remitted to the trial Court for fresh disposal of Misc. Case No. 19 of 1978 in accordance with law keeping the observations made above in view. Costs shall abide the event. 28th June, 1982 is fixed for appearance of the parties before thelower Court for the purpose of receiving directions of that Court as to further proceedings in the misc. case.