Dalip K. Kapur, J.
(1) There are two appeals before the Court. R.F.A. (OS.) 28/82 and Fao (OS) 88/82. The Regular First Appeal was filed within the period of limitation and was directed against the exparte judgment recorded by the learned Single Judge on 5th March 1982 decreeing the suit for Rs. 1,41,665.77 with interest, cost etc.
(2) After this the defendant-appellant filed an application under Order 9 Rule 13 and Section 151 of the Code of Civil Procedure for setting aside the exparte decree on 5th March 1982 itself. It was supported by the affidavit of the learned counsel for the defendant Mr, H.S. Dhir. In that application it was claimed that the counsel for the appellant/defendant could not appear because he was appearing before a Division Bench where arguments concluded at 12.10 p. m. and when he reached the Court of the learned Single Judge he found that the suit had already been decreed exparte. This application was dismissed by an order dated 16th April 1982 In the order it was held that the defendant had failed to show sufficient cause for nonappearance on 4th and 5th March, 1982 and hence the application was difmissed.
(3) When the Regular First Appeal came before the Admission Bench it was noted that only one appeal had been filed although the appellant also wanted to challenge the order refusing to set aside the exparte decree.
(4) The appellant then filed Fao (OS) 88 of 1982 Along with an application for stay as well as application for condoning delay under Section 5 of the Limitation Act. If we consider this appeal we would have to decide the question whether the delay should be condoned. The order was passed on 16th April 1982 and this appeal was filed on 17th July 1982. There was only three copying days because the application for copy was presented on 13th July 1982 and the copy was ready on 16th July 1982. So prima facie this appeal would be barred by time and there is hardly any reason for condoning the delay. Learned counsel more or less conceded this position but made a submission at the hearing to the effect that the Regular First Appeal might be treated as an appeal against the order refusing to set aside the ex-parte decree. If we allow this to be done then Rfa (OS) 28 of 1982 which is within time both as an appeal against the judgment and decree as well as against the order refusing to set aside the ex-parte decree could be a First Appeal against Order, the order refusing to set aside the ex-parte decree.
(5) On a consideration of the questions involved in the present case we are of the view that we should accede to the learned counsel's request and there are many good reasons for this. Firstly, the judgment dated 5th March, 1982 is based on an ex-parte trial. The suit was for recovery of the price of 46 'Allwyn' refrigerators which had been supplied to the defendant. The suit was defended and a counter-claim was raised. The ex-parte trial and decision was based only on the plaintiff's evidence to the effect that the price of the refrigerators had been paid to the extent of Rs. 25,000.00 only and an amount of Rs. 1,66,665.77 was still due towards the balance price together with interest at 18% per annum. There was no defense offered by the defendants and no appearance for them. No evidence was led and no arguments addressed and consequently the suit was decree ex-parte. The only defense to the decree was the tact that the defendants were unable to appear at the trial for reasons which will become apparent later. The defendant then filed the application under Order 9 Rule 13 of the Code which was rejected. If we consider the appeal as being directed against the ex-parte decree, there can hardly be anything said for the defendant. On the other hand, if we treat that the appeal is being directed against the order refusing to set aside the exparte decree then only can the contentions of the appellant become relevant. Virtually the only case of the appellant is for reversing the order refusing to set aside the exparte decree. thereforee, we are justified in treating the appeal as an appeal directed against the order dated 16th April 1982 passed in 1.A. 898 of 1982. rather than an appeal against the judgment and decree dated 5th March 1982.
(6) The facts of the case qua the exparte judgment and decree present some unusual difficulty because the suit was on the original side of the High Court where there is a very special procedure for trial. The suit was listed for trial on 4th and 5th March 1982 by an order passed by the Deputy Registrar on 25th August 1981. In that order it was specially noted that the defendant had not filed a list of witnesses. The issues framed in the suit on 14th February 1981. The Court's order of that date states that the suit would be listed before the Deputy Registrar for admission-denial of documents on 17th February 1981. On 17th February 1981 the defendant did not appear but the parties were directed to file their list of witnesses within four weeks. The Deputy Registrar adjourned the case to 27th March 1981. On the adjourned date the defendant again did not appear but the plaintiffs had filed their list of witnesses. It was noted in the Deputy Registrar's order that the defendants had not filed any list of witnesses. The case was adjourned to 4th May 1981. Again on that date although there was an appearance for the defendants it was again noted that the defendants had not filed a list of witnesses and four weeks time was granted to file the list of witnesses. There was an adjournment to 21st July 1981 on which date the Deputy Registrar being absent the case was adjourned to 25th August 1981. On that date, dates for trial were noted. It is noteworthy that defendants did not say anything about their witnesses. The case then came again for scrutiny before the Deputy Registrar on 15th December 1981 and 29th January 1982. The counsel for the defendants had by then filed an application for condoning the delay in filing the list of witnesses. This was I.A. 354 of 1982.
(7) On 18th February 1982 the learned Single Judge allowed I.A. 354 of 1982 and thus condoned the delay in filing the list of witnesses by the defendants but ordered that the defendant will be responsible for the production of his evidence on the dates of the trial but can have the assistance of the court in summoning the witnesses.
(8) On 4th March 1982 the trial for the suit commenced before the Single Judge but there was no appearance for the defendants. The following note was made in the order of that date :
'MR.Dhir counsel for the defendant came to the chamber at about 3.30 p.m. and said that he was busy in another court and had asked his junior to inform the Court. The counsel has been told that the case shall be taken up at 11.30 a.m. tom orrow.'
On 5th March 1982 the order was as follows :
'THERE is no appearance for the defendant. The defendant is also not present. No witness has been summoned by the defendant. The plaintiff has closed its evidence.'
(9) There is another note at the bottom of this order which is as follows:
'NOTE: Copies of the statement were supplied to Mr. Dhir and I find that by mistake the presence of Shri Dhir has been shown in the copies of the statement.'
This note is on account of the fact that in the record of the trial the presence of Mr. Dhir for the defendants was recorded on 4th March 1982 although the evidence was recorded exparte. This was a typist's error. Admittedly Mr. Dhir was not present either on 4th or 5th March 1982 when the trial of this suit took place.
(10) Mr. Dhir has strenuously urged that he was busy in another court and thus could not appear on 4th or 5th March 1982. He has pointed out that as far as 5th March is concerned, he was busy in some admission matters before a Division Bench of this Court, and was thereforee not able to appear in the Court when the trial took place. He submits that it is a sufficient ground for setting aside the exparte order if the counsel is busy in another Court.
(11) This point raises a question of vital importance as far as the original side of this Court is concerned. The whole scheme of trial is based on a particular system which has to fail if there is no co-operation in the matter of holding the trial from the parties appearing before the Court. The procedure is that the case is got ready.for trial by the Registry. After the pleadings have been settled and the issue framed, the parties are informed of the date of the trial well in advance. On the dates fixed for trial it is responsibility of the parties concerned to appear and bring their witnesses before the Court. It so happens that learned counsel can be busy in several courts hence they must know in advance that a particular date is fixed for trial; thereafter, they have to arrange their other work in such a way as to keep the dates of trial free. If this is not done, the system as envisaged cannot be usefully operated. The Court has by its rules framed a method of trial which has to proceed from day-to-day till concluded. All other work has to be adjusted so that the trial can take place on the pre-determined dates. I, the counsel or the party happens to be otherwise busy on that date, other arrangements have to be made by the party concerned. So virtually it is impossible for the trial to be adjourned. This case is indicative of the difficulties inherent in a day-to-day system. If there had been some other cause for non-appearance such as illness or accident or other calamity it would be understandable that the Court could adjourn the trial to some other date. However, being busy in another Court is hardly any ground for adjourning the trial. Also, the peculiar feature of this case is that no request for adjournment was made prior to the commencement of the trial. It was not pointed out at the commencement that Mr. Dhir was before another Court. We can, thereforee, find little excuse for the defendants in this particular case.
(12) It may be mentioned that there are a large number of reported cases in which it has been held that non-appearance of a party on account of counsel being busy in another Court is a sufficient ground for setting aside the ex-parte decree or a dismissal in default. However those are of all cases involving the subordinate Courts where the procedure is quite different. It is customary in such Courts for learned counsel to be busy in more than one Court, and accommodation by the Courts is a matter of routine. In such cases if the Court does not wait for the counsel, or does not give them time, virtually all the cases would be decided -ex.pane. This is on account of the fact that in such Courts the cases are to be called at various times of the day and learned counsel cannot always be free at the requisite time. Examples of such decisions are to be found in the following case .- The Lakshmi Commercial Bank Ltd. v. Hans Raj Sayal and others A.I.R. 1981 Pun 228, K.K. Arora v. Rajinder Lal 1977 Raj LR 59, Savitri Devi v. M/s. Puranchand, 1978 R.L.R. 350, Avtar Singh Minor . etc. v. Bhajan Singh etc. (1978) 80 Plr 103, Shrimati Chander Kanfa v. M/s. Sulekh Chand Sumer Chand (1978) 80 PLR 423, Hari Kishan Shah v. Tilak Raj Bhasin A I.R. 1972 Ker 19 and Asgher Hussain v. Vicarunnisa Begum : AIR1961AP128 . All these cases relate to trials held in the subordinate Courts where counsel were either busy elsewhere, or there was sudden illness or some such other circumstances preventing appearance. In these cases the Court found that there was sufficient cause for setting aside the ex-parte decree or dismissal in default, as the case was.
(13) We are firmly of the view that this principle cannot be applied on the trials on the Original Side, where the whole system of trial has been designed to ensure a day-to-day trial on a fixed date or dates. The numerous hearing which take place before the Deputy Registrar to finalise the case for trial are meant to ensure that the witnesses are bound down to appear on a given date. In the present case the background appears to be that the plaintiff got his case ready for trial but the defendant did not take steps to have the witnesses bound and hence, when the case came for trial not only was the counsel absent but the defendant was also absent.
(14) The learned Single Judge in dealing with the application has noted that on 4th March, 1982, the order specially pointed out that the case would be taken at 11.30 A.M. on 5th March, 1982 and this fact was also notified in the cause-list yet learned counsel nor the defendant appeared. Hence after the plaintiff closed his evidence the suit was decided in the absence of the defendant.
(15) The learned Single Judge noted particularly that none of the partners of the defendants in the Suit were present, nor was any witnesses on their behalf present and nor had any steps been taken to summon any evidence.
(16) When a Judge sitting on the Original Side of this Court has taken this particular view, it becomes difficult to disturb the decision particularly as the learned Single Judge had all the facts before him and they were quire fresh and known to him.
(17) We may also note that the Code of Civil Procedure was amended in 1976, particularly to meet just such a situation. The proviso added to Order 17, Rule I regarding adjournments of a suit also covers a case like the present. The relevant portions of the proviso are : Provided that:
(A)When the hearing of the suit has commenced it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary.
(B)no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of the party.
(C)the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment.
(D)where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time............'
The intention of the proviso was that no suit which had begun should be adjourned even if the counsel was busy in another Court. In this particular case, even a request for adjournment was not made, so the learned Single Judge had to proceed with the trial of the case.
(18) We realise that the result is harsh, but the object of the Original Side Rules fixing the trial dates well in time is to ensure that proper arrangements are made for a continuous hearing of the suit. Similarly, the amendment to Order 17, Rule I is intended to cover the case of a counsel being busy in another Court. It is necessary in such cases that an alternative arrangement should be made to ensure a continuous hearing of the suit.
(19) As said above, the decision not to restore the suit was taken by a Judge sitting on the Original Side of this Court and it is not to be disturbed lightly, we would accordingly dismiss the appeal, but in the circumstances leave the parties to bear their own costs in this appeal.