1. When must a court decide a case on merits and when must it not do so? The difference between two requires to be clearly explained by analysing the relevant provisions of Order 9 and Order 17 of the Civil P.C. in this case.
2. The respondent landlord filed a petition for eviction of the appellant-tenant under proviso (a) to Section 14 (hereinafter called the Act) on the ground that the tenant had been in arrears of rent and had failed to pay the same after a notice of demand had been also defaulted in payment of rent but the previous proceedings brought by the landlord against him for eviction did not result in his eviction because the tenant paid up the previous arrears of rent to the landlord getting the benefit of subsection (2) of S. 14 of the Act but the proviso to sub-section (2) of S. 14 of the Act barred the tenant from claiming the same benefit in the second eviction proceedings lodged against the tenant for a second default in payment of rent. The tenant had thereforee no apparent defense to the eviction proceedings brought against him by the landlord. After the evidence of the parties was recorded, the case was fixed for arguments before the Controller on 10th February, 1966. On that date the tenant was present, but stated that his counsel was ill and he could not argue the case himself. The case was thereforee adjourned to 22-2-1966. On the adjourned date neither the tenant nor his counsel was present in the court. The Controller thereupon passed an order on the merits of the case for the eviction of the tenant from the premises. As the case had been disposed of on merits the normal remedy of the tenant was to file an appeal against it under Section 38 of the appeal against it under Section 38 of the Act to the Rent Control Tribunal. Instead the tenant made an application under O.9, R. 13, Civil P.C. (hereinafter called the code) for the setting aside of the ex parte order of eviction passed against him. The application was dismissed by the Controller as incompetent. He held that the order of eviction was passed under Order 17, Rule 3 of the Code on merits and it was not an ex parte order passed against the tenant under Order 17, Rule 2 of the Code. The remedy of an application under Order 9, Rule 13 of the Code was available only when an ex parte order was passed under Order 17, Rule 2 of the Code. The appeal of the tenant to the Rent Control Tribunal against the dismissal of his application made under Order 9, Rule 13 of the Code was also dismissed by the Tribunal for the same reasons. In this second appeal by the tenant it is alleged that the Controller had no jurisdiction to pass an order of eviction on the merits of the case against the tenant under Order 17, Rule 3 of the Code. It is urged that an order under Rule 2 is passed when the parties or any of them fail to appear in the court while an order under Rule 3 is passed when both the parties are present but one of them fails to produce the evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit. It is alleged that the tenant and his counsel being absent on the date of the adjourned hearing the Controller acted illegally in proceeding under Rule 3 of Order 18 of the Code. He ought to have proceeded under R.2 and could have passed an ex parte order of eviction or such other order as he thought fit against the tenant.
3. In defense the landlord has raised a preliminary objection to the effect that the order dismission the application of the tenant made under O.9, R.13 of the Code was not an order under the Act within the meaning of Section 38 of the Act and thereforee no appeal lay against the said order. For the same reason no second appeal lay against the order of the Tribunal under Section 39 of the Act. The criterion laid down by the Supreme Court in the Central Bank of India v. Gokal Chand, : 1SCR310 as to what is an order under the Act is that the order must affect the rights and liabilities of the parties. If it does so, even an interlocutory order would be an order under the Act. The order dismissing an application under Order 9, Rule 13 of the Code affects the rights opportunity to be heard by the Controller before an order on merits is passed against him. Secondly, such an order is final and terminates the proceedings. Lastly, it has grave legal consequences for the tenant. I have no hesitation thereforee in holding that it was an order under the Act and an appeal could be filed against it under Section 38 of the Code. The second appeal under Section 39 is also competent in as much as a substantial question of law is involved.
4. The question for decision is whether the Controller had the power to decide the case on merits in the absence of the tenant and his counsel on the adjourned hearing. The answer to this question depends on the particular provision of Order 9 or Order 17 of the Code which would apply to the makings of the impugned order.
5. A perusal of Order 9 shows that it is applicable either to the first hearing or to such earlier stage of hearing of the case before the trial of the case begins. Rules 1 to 3 of ).9 apply to the hearing held immediately after the summons have been served. Rules 4 and 5 provide the remedies to the plaintiff against the summary dismissal of the suit, such dismissal not being on merits. Under Rule 6 where only the plaintiff appears and the defendant does not appear an ex parte decree or order can be passed by the court after hearing the plaintiff alone and giving him an opportunity to prove his case ex parte against the defendant. The defendant has no opportunity to be heard at all and thereforee the decision is based on the merits of the plaintiff's case alone but not on the merits of the defendant's case which has not been heard at all. thereforee, the defendant can get an ex parte order under R.7 or an ex parte decree set aside under Rule 13 of Order 9. To sum up, the orders under the provisions of Order 9 are passed either on merits of the plaintiff's case alone or not on the merits of the case of either party. Under O.9 an order is never passed against the plaintiff on the merits of the defendants case.
6. In contract with O.9 O.17 of the Code deals with the adjourned hearings and not with the first hearing or with an earlier hearing before the merits of the case are tried. Under Order 17, thereforee, the court is empowered to pass two distinct kinds of orders namely: (a) acting under the first part of R. 2, the court may pass an order in one of the modes directed by Order 9 i.e. an ex parte order on the merits of the plaintiff's case alone without considering the merits of the defendant's case or an order dismissing the plaintiff's suit merely for his absence but without considering the merits of the plaintiff's case and thus becomes rest judicata, summary dismissal of the suit of the plaintiff or an ex parte order against the defendant without considering the merits of the plaintiff's case did not act as rest judicata, (b) On the other hand, the last words of Rule 2 i.e. 'or make such other words as it thinks fit' and the whole of Rule 3 enables the court to pass an order on the merits of the case after considering the plaintiff's case as well as the defense or such part of the merits of the contentions of the parties as are available on the record of the case. This decision acts as rest judicata. The remedy against it is only appeal. It is not ex parte order or decree against the defendant which can be set aside under Rule 6 and Rule 13 of Order 9 nor is it a summary dismissal of the suit in the absence of the plaintiff which can be set aside under Rule 9 of Order 9.
7. In view of the difference in the nature of these two kinds of orders and the different consequences following each of them, the remedies against each of them are also different. it is sometimes a question of some difficulty to determine the nature of the order in question and the proper remedy against it. Certain features which help to distinguish these two kinds of orders from each other may thereforee be noted. An order under the first part of Rule 2 is passed only when any of the parties or both of them fail to appear. Since the only order that the court can then pass is to be according to the provisions of Order Ix, it follows that the record or the material before the court is such that the court is in a position either to pass an order without touching the merits of the case at all or an order based on the merits of the plaintiff's case alone but not touching the merits of the case, of the defendant. On the other hand, if the record of the material before the court is sufficient to bear out the merits of the plaintiff's case as well as of the defense then the court would be in a position to pass an order on the merits of the case as a whole. Such an order would be covered by the last words of rule 2 which are as follows:-
'or makes such other order as it thinks fit'
The meaning of these last words of Rs.2 has given rise to different interpretations. The reason is that these diverse interpretations are given in the context of divergent facts. The basic rule which reconciles the diverse interpretations is whether or not the Court is in the position to give a decision on the merits of the case the plaintiff's case and the defense being fully available on the record including the evidence adducted by both the parties. When the record is complete the court cannot shirk its duty to give its decision on the merits of the case. It would not then be proper for the court to act in one of the modes directed by Order 9 of the Code. thereforee, even if one or both the parties are absent but decision can be given then the court would be competent to act under the last para of Rule 2.
8. On the other hand, if the trial has not proceeded on the merits of the case and the court is not in a position to pronounce judgment on merits then it could only act under Order 9 even on an adjourned hearing as laid down in the first part of Rule 2.
9. Rule 3 of Order Xvii applies when a party to a suit has been granted time. This means it applies to an adjourned hearing as distinguished from the first hearing of a suit. The time may be given to produce evidence or to cause attendance of witnesses. This would mean that rule 3 applies to the evidence given to a party 'to perform any other act necessary to the further progress of the suit' Again, there is no unanimity in judicial decisions as to the meaning of the words 'any other act'. They have to be construed in the light of the context and the object of rule 3. The context is one of the adjourned hearing. By the time the case reaches this stage, about the merits of the rival contentions of the parties. The object of Rule 3 is to arm the court to proceed to decide the suit forthwith if the party to whom time has been granted fails to utilize the time for the progress of the suit. The normal rule under Order 9 is that if a party or both the parties are absent then the Court does not decide the suit on merits; for the record at the preliminary stage is not likely to the sufficient for a decision on merits. On the contrary, under Rule 3 the court is empowered to decide the suits on merits. The reasons are obvious. Firstly, the case has reached an advance stage. Secondly, the recorded is likely to suffice for decision on merits. Thirdly, a party has been put under an obligation to do something by the court in granting time to do something for the progress of the suit and it could not thereforee be inequitable if the court were to proceed to decide the suit forthwith. Time having been granted to the party already and the party having failed to use it, no complaint can be made by such a party if the case has been decided by the court on merits.
10. It is significant that while Rule 2 of Order 17 is invoked when a party or parties are absent, Rule 3 of Order 17 is silent as to the presence or absence of the parties. The emphasis of Rule 3 is on the default on the part of a party to do something for the progress of the suit for which time had been granted by the court. If this default is committed by such a party, the consequence of the decision on merits by the court has to follow. Such a default can be committed by a party whether he is present or absent.
11. Learned counsel for the appellant urged that no order on merits under Rule 3 can be passed when the party in default is absent. This contention can be answered in two ways. Firstly, even if it is assumed that R.3 does not apply when a party is absent, still the court has a power to pass an order on merits under the last words of Rule 2, namely 'make such other order as it thinks fit', Secondly, there order there under cannot be passed on merits if the party committing the default is absent. Such a party cannot deprive the court of the power to decide the suit forthwith by merely remaining absent. To so construe Rule 3, would amount to reading into Rule 3 the words 'when a party in default is present' which are not there. Such a construction is not permissible.
12. The difference between O.9 and O.17 is further brought out by Order 20 Rule 1 under which a judgment on merits can be pronounced by the court 'after the case has been heard' Order 9 and the first part of Rule 2 of Order 17 apply when the case has not been heard on merits while the second part of Rule 2 and the whole of Rule 3 of Order 17 apply when the case is heard on merits. thereforee, under the former set of provisions a judgment on merit is not passed except when the plaintiff gets an ex parte judgment against the defendant while under the later set of provisions of judgment on merits has to be passed and the court cannot revert to the former set of provisions to avoid passing of judgment on merits.
13. In the present case, the parties had adducted their evidence fully. The defendant-appellant had no defense worth the name. He thereforee absented himself. He thereforee absented himself after having been granted time by the Court. The court was thereforee bound to decide the case on merits both under the last words of Rule 2 and under the whole of Rule 3 of Order 17 of the Code for the reason stated above. The appeal is, thereforee, dismissed but without any order as to costs.
14. Appeal dismissed.