ORDER Devi Prasad Singh, J.
1. List revised Non present for the respondents.
This is a part-heard writ petition. Already, parties' counsel were heard at length and the case was adjourned granting time to petitioners' counsel to file a Supplementary Affidavit alongwith the true typed copy of order-sheet dated 27th of February, 1987 and the same was filed long back, but no objection has been filed by the respondents, hence I proceed to decide the writ petition finally after hearing petitioners' counsel as well as arguments advanced by the respondents' counsel earlier.
2. The plaintiffs-petitioners have approached this Court under Article 227 of the Constitution of India where an application moved by the petitioners under Order 9 Rule 9 of the Code of Civil Procedure was rejected by the trial court as well as Revisional Court by the impugned order dated 22nd of April, 1987 and 27th of February, 1988 respectively. The brief matrix of the case is that petitioners have filed a Regular Suit No. 125/ 1976 for permanent injunction. Notices were served on the defendants of the suit and Written Statement was also filed. The case was fixed for 17th of February, 1987, for hearing. The plaintiffs-petitioners have moved an application for adjournment of the case, hence the case was adjourned for 23rd of February, 1987. On 23rd of February, 1987, petitioners could not appear before the trial court and the case was adjourned for 27th of February, 1987. On 27th of February, 1987, the petitioners again could not be present before the trial court. This fact is evident from the order sheet dated 27th of February, 1987 filed as Annexure No. S.A.-1 to the Supplementary Affidavit. The order dated 27th of February, 1987 is reproduced as under:- From the order sheet dated 27th of February, 1987, it is evident that since the petitioners were not present before the trial court hence the trial court had proceeded ex parte and adjourned the case for 10th of March, 1987. In the meantime on 5th of March, 1987, petitioners had moved an application for recall of the order dated 27th of February, 1997. An objection to petitioners' application was filed by the respondents. The trial court had rejected the application by the impugned order dated 21st of April, 1987, copy of which has been filed as Annexure No. 7 to the writ petition. Feeling aggrieved with the impugned order of the trial court, petitioners have preferred a revision which was dismissed by the Revisional Court. Copy of the impugned order dated 27-8-1988 has been annexed as Annexure No. 8 to writ petition.
3. The short question involved in the present writ petition is that whether in the absence of plaintiffs counsel, the trial could have passed an order to proceed ex parte in the suit in question or the suit should have been dismissed in pursuance to the provisions contained in Order 9 Rule 8 of the Code of the Civil Procedure. For convenience, Order 9 Rule 8 of the Code of Civil Procedure is reproduced as under:-
8 Procedure where defendant only appears- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.
4. The main thrust of the argument of the respondents' counsel is that on the date of hearing of the case, in view of the provisions contained in Order 17, Rule 2 of the Code of Civil Procedure, it was incumbent on the trial court to proceed with the suit ex parte and rightly on 27th of February, 1987, the trial court had proceeded ex parte against the petitioners.
On the other hand, submission of Sri R.S. Pandey, learned Counsel for the petitioners is that under Order 17, Rule 2 of the Code of Civil Procedure, the trial court have been proceeded ex parte only in case substantial portion of the evidence would have been recorded during the course of proceedings.
learned Counsel for the petitioners has relied upon the Judgment , B. Jankiramaiah Chetty v. A.K. Parthasarthi and Ors. ; Prakash Chandra Manchanda v. Janki Manchanda 1976 ALJ 379 M.S. Khalsa v. Chiranju Lal and 1987 LCD 44 (DB) Kursi Lal Rungta v. Smt. Banarsi Devi.
learned Counsel for the petitioners further proceeded to submit that previous conduct of the parties should not be taken into account while deciding the Recall Application.
learned Counsel for the petitioner has further relied upon Judgments reported in 1987 LCD 44 (DB) - Kursi Lal Rungta v.Smt. Banarsi Devi and 1980 ACJ 570.
5. Apart from Order 17, Rule 2, the provisions contained in Order 17, Rule 3 of the Code of Civil Procedure are also relevant for the purpose of present controversy. A plain reading of Order 17, Rule 3 reveals that 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. For convenience, Order 17, Rule 2 & 3 of the Code of Civil Procedure are reproduced as under :-
2. Procedure if parties fail to appear on day fixed- 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 Order IX or make such other order as it thinks fit.
(Explanation- where the evidence or 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) HIGH COURT AMENDMENTS Allahabad- Add to Rule 2:-
Where the evidence, or a substantial portion of the evidence, of any party has already been recorded, and such, party fails to appear on such day, the Court may in its discretion proceed with the case if such party were present, and may dispose of it on the merits.
Explanation-No party shall be deemed to have failed to appear if he is either present or is represented in Court by an agent or pleader, though engaged only for the purpose of making an application. (28-5-1943)
3. Court may proceed notwithstanding either party fails to produce evidence, etc-Where any party to suit to whom time has been granted tails to produce his evidence, or to cause the attendance of his witness, 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, -
(c) if the parties are present, proceed to decide the suit forthwith, or
(d) if the parties are, or any of them is absent, proceed under Rule 2) HIGH COURT AMENDMENTS Allahabad - Put a comma after the first word "where" and insert thereafter the words "in a case to which Rule 2 does not apply." (17-1-1953) Andhra Pradesh - At the end of the rule add the following proviso :-
Provided that in a case where there is default under this rule as well as default of appearance under Rule 2, the Court will proceed under Rule 2. (27-4-1961).
In the present case, it is apparent that no evidence was recorded by the trial court before 27th of February, 1987. Since, no evidence was recorded before 27th of February, 1987, it was incumbent on the trial court to exercise power conferred by Order 9, Rule 8 of the Code of Civil Procedure which has been reproduced hereinabove.
Order 9, Rule 8 at the face of record, provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed. However, in case the defendant admits the claim, or part of the claim, then the Court shall pass a decree against the defendant upon such admission, and, where only part of the claim has been admitted, Court shall dismiss the suit for as it relates to the remainder.
6. Order 9 of the Code of Civil Procedure specifically deals with the situation of appearance of parties and consequence of non appearance of parties during the trial of the suit. Since, the present case relates to a situation where the petitioners-plaintiffs were not present on 27th of February, 1987, but the defendants were present, their case seems to be covered by Rule 8 of Order 9 of the Code of Civil Procedure as no evidence was recorded prior to 27th of February, 1987 and on the date fixed, defendants had not admitted plaintiffs-petitioners' claim either wholly or in part. There was no option before the Trial Court except to dismiss the suit in compliance of the provisions contained in Order 9, Rule 8 of the Code of Civil Procedure.
A combined reading of Order 9 and Order 17 of the Code of Civil Procedure shows that legislature had subjected the provisions contained in Order 17 to the provisions contained in Order 9. Accordingly, it was incumbent on the trial court while passing the impugned order purported to be exercised in pursuance to the power conferred by the Order 17, Rule 2 of the Code of Civil Procedure, should have also considered the provisions contained in Order 9, Rule 8 as well as the provisions contained in Order 17, Rule 3 of the Code of Civil Procedure.
Even, if the parties would have been present in the court and the case was fixed for evidence if the plaintiffs would have failed to produce the witness, the trial court could have been proceeded to decide the suit forthwith in accordance to law. Sub-rule 3(b) co-relates the Rule 3 of Order 17 with Rule 2 of Order 17.
7. Hon'ble Supreme Court in the case of B. Janakiramaiah Chetty (supra) while interpreting the explanation of Order 17, Rule 2 had held that explanation contained in Order 17. Rule 2 of the Code of Civil Procedure permits a court to proceed with the case, in case, parties failed to appear on the date fixed for hearing of the suit. However, Hon'ble Supreme Court has further clarified that such power can be exercised only in case, the evidence has been recorded an earlier date. For convenience, relevant portion from B. Janakiramaiah Chetty' case (supra) is reproduced as under :-
8. The Explanation permits the court in its discretion to proceed with a case where substantial; portion of 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. As the provision itself shows, discretionary power given to the court is to be exercised in given circumstances. For application of the provision, the court has to satisfy itself that (a) substantial portion of the evidence of any party has been already recorded: (b) such party has failed to appear on a day: and (c) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the court to adopt any of the modes provided in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the court to act under the specified circumstances i.e. where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the court may in its discretion deem as if such party was present. Under Order 9, Rule 3 the court may make an order directing that the suit be dismissed when neither party appears when the suit is called on for hearing. There are other provisions for dismissal of the suit contained in Rules 2, 6 and 8. We are primarily concerned with a situation covered by Rule 6. The crucial words in the Explanation are "proceed with the case". Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the court or not.
9. In Rule 2, the expression used is "making such order as it thinks fit" as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17, Rule 3(b), the only course open to the court is to proceed under rule, when a party is absent. Explanation thereto gives a discretion to the court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial; part thereof. If the position is not so, the court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the court to decide the suit forthwith. The basic distinction between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present.
8. Earlier also in another case namely Prakash Chandra Manchanda (supra), Hon'ble Supreme Court has laid down the same law while interpreting the provisions contained in Order 17, Rule 2 of the Code of Civil Procedure (Para Nos. 6, 7 & 8).
9. A Special Bench consisting of 5 Hon'ble Judges of Allahabad High Court in the case of M.S. Khalsa (supra) had ruled that if a party failed to appear on the adjournment date, then Rule 3 of Order 17 of the Code of Civil Procedure shall not be applicable, even though he may be animated to do as mentioned in Rule 3. The majority of the Special Bench held that an application under Order 9, Rule 13 shall lie even if the court professes to act under Rule 3. Rule applies when a party is present or is deemed to be present, and has defaulted in doing the acts mentioned in Rule 3. For convenience, relevant portion from M.S. Khalsa's case (Supra) is reproduced as under :-
113. By the Court - In view of the majority our answer to the question referred in Civil Revision No. 801 of 1968 is that the mentioned case is covered by Rule 2 of Order XVII, and an application under Order IX, Rule 13. will lie. even if the Court professes to act under Rule 3. Rule 3 applies when a party is present, or is deemed to be present, and has defaulted in doing the acts mentioned in Rule 3.
10. In the case of Kuri Lal Rungta (supra), other aspect relating to the conduct of the party has been dealt with laying down that while deciding an application for recall of the Order relating to ex parte, previous conduct of the parry should not be taken as ground to reject an application. For convenience, relevant portion from Kuri Lal Rungta's case (supra) is reproduced as under :-
27. learned Counsel had further contended that the past conduct of the defendant in seeking adjournment could not be taken to be a ground for rejecting the application for adjournment, which contained good grounds justifying the adjournment of the case to some other date in view of the facts stated therein. In support of his contention, learned Counsel for the defendants placed reliance upon a decision of this Court reported in 1980 Allahabad Civil Journal 570 wherein it has been held that the previous conduct of the party would be immaterial while considering the application for adjournment, which deserved to be allowed on the facts and circumstances indicated therein.
28. It is no doubt correct to say that the application for adjournment cannot be rejected merely on the ground that on previous hearing the same party had obtained adjournment by moving adjournment application on more or less the similarly grounds. but at the same time one cannot lose sight of the fact that the defendant had repeatedly sought adjournment on one ground or the other and failed to bring evidence for which time was allowed, and so the case could squarely fall under the provisions of Order XVII, Rule 3 of the Code and the lower court could proceed to decide the suit by rejecting the adjournment application.
The analogy of Kuri Lal Rungta's case may be very well applied under the facts and circumstances of the case and it can be held that while passing the impugned order, it was not open for the court below to reject the recall application on the ground of previous conduct of the plaintiffs while deciding the recall application. Reason for absence on the date fixed should be looked into and in case, it is found that party was not present because of some bonafide reason or on account of compelling circumstances or for reasonable cause, then order to proceed ex parte should have been recalled by the trial court.
11. In view of the above, the impugned orders passed by the court below are not sustainable under law. Accordingly, a writ in the nature of certiorari is issued quashing the impugned orders dated 21-4-1987 and 27-2-1988 as contained in Annexure Nos. 7 and 8 to the writ petition, with all consequential benefits. Since, the matter is pending since last 18 years in this court, the trial court is directed to restore and decide the suit in accordance with law expeditiously and preferably within a period of one year from the date of receipt of certified copy of this order.
The writ petition is allowed accordingly. No order as to costs.