These Civil Revision Petitions are preferred by the petitioner/plaintiff against the order of the learned Subordinate Judge, Virudhunagar in returning the petitions filed under Order 9 Rule 9 of CPC to restore the suit with regard to the dismissal of the suit and under Order 9 Rule 13 of CPC to set aside the decree passed by the trial court on the counter claim made by the respondent/defendant, questioning the maintainability of those applications. The petitioner has challenged the rejection of those petitions without even numbering them by the trial court.
2. The brief facts, which are essential for the disposal of these Civil Revision Petitions, are as follows:-
The petitioner has filed the above said suit against the respondent herein for declaration that the sale deed dated 26.2.2000 executed in his favour as invalid as it was obtained under undue influence and by playing fraud and for consequential relief of permanent injunction restraining the respondent from interfering with the peaceful possession of the suit property. The respondent has contested the suit by filing a written statement and also a counter claim was filed by him seeking recovery of possession of the suit property.
3. It transpires from the order passed by the court below dated 10.7.2002 that though the plaintiff represented through his counsel on the previous hearing and on 3.7.2002, but failed to appear either in person or through his counsel on 10.7.2002 and therefore, the court below on the basis of the pleadings filed by both the parties, framed issues, examined the defendant as DW.1 and marked documents on the side of the defendant as Ex.B1 to B5 and dismissed the suit and allowed the counter claim and accordingly, directed the plaintiff to hand over possession of the suit property within two months and relegated the determination of mesne profits to a separate proceedings under Order 20 Rule 12 of CPC.
4. On coming to know of the said judgement and decree of the court below, the petitioner/plaintiff has filed an application under Order 9 Rule 9 of CPC to set aside the order of dismissal and also under order 9 Rule 13 of CPC to set aside the exparte decree in allowing the counter claim of the respondent. Both the applications were returned by the court below questioning the maintainability of those petitions on the ground that the suit is disposed of on merits. Aggrieved against the said orders of the court below, the petitioner has filed these Civil Revision Petitions under
Article 227 of the Constitution of India.
5. The main contention of the learned counsel for the petitioner is that though the judgement of the trial court in the suit indicates that it is a decree on merits, yet in law, it cannot be so treated.
6. Mr.D.Ferdinand, the learned counsel for the petitioner would contend that the trial court had the evidence of DW.1 in chief and he was not cross examined by the plaintiff nor the evidence of the plaintiff was adduced and therefore, according to him on a reading of Order 17 Rules 2 and 3 of CPC together, the court has no other option except on the facts available in this case as noted above to dismiss the suit for default and allow the counter claim exparte only and it has no option to dismiss the suit and allow the counter claim on merits. He would further contend that Order 8 Rule 6A of CPC provides that the counter claim is to be treated as a cross suit and therefore the applications filed under Order 9 Rule 9 of CPC as against the dismissal of his suit and Order 9 rule 13 of CPC against the allowing the counter claim are maintainable.
7. The learned counsel for the petitioner relied on the decision of the Honourable Supreme Court rendered in the case of B.Janakiramaiah Chetty Vs. A.K.Parthasarathi and others [2003-2-MLJ-186-SC] wherein the scope of Order 17 Rules 2 and 3 of CPC came up for consideration and analysis.
8. Per contra, Mr.G.Mariappan, the learned counsel for the respondent would contend that if the Explanation to Rule 2 of Order 17 is taken into account, then on the evidence of DW.1 in chief available on record the court has a discretion to dispose of the suit as contemplated under Order 17 Rule 3(a) of CPC. He would place reliance on the decision of this court rendered in the case of Arumuga Gounder and others Vs. Palaniammal and others [2001-1-MLJ-15].
9. Having regard to the submissions made by the learned counsel on either side, the material facts have to be gone into. The fact remains that DW.1 alone was examined in chief and he has not been cross examined by the plaintiff. The petitioner neither appeared in person nor through his counsel and did not adduce evidence on his side and a decree came to be passed on 10.7.2002. The court below analysed the evidence of DW.1 in chief coupled with the documentary evidence made available on the side of the defendant marked as Exs.B1 to B5 and passed a decree on merits.
10. The question is as to whether in the above said circumstances and undisputed facts can the court proceed to dispose of the suit on merits or should it necessarily resort to the procedure contemplated under Order 9 of CPC.
11. For better appreciation, Order 17 Rules 2 and 3 of CPC is extracted here 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 Court may, in its discretion proceed with the case as if such party were present.
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.
(3) Court may proceed notwithstanding either party fails to produce evidence etc.:- Where any party to a suit to whom time has been granted fails 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:-
(a) if the parties are present, proceed to decide the suit forthwith, or
(b) if the parties are, or any of them, is absent, proceed under rule 2.
12. Order 17 Rule 3 of the CPC declares as to what should be done if any party to a suit to whom time has been granted, fails to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit and the court, may, notwithstanding such default:- (a) if the parties are or any of them is absent proceed under Rule 2. Rule 3 of Order 17 operates in a case where trial had already commenced. The Honourable Supreme Court in the decision referred to by the learned counsel for the petitioner in the case of B.Janakiramaiah Chetty Vs. A.K.Parthasarathi and others (supra) has laid the law thus:- "In Rule 2, the expression used is "make such order as it deems fit", as an alternative to adopting one of the modes directed in that behalf by Order 9. Under 17 Rule 3(b) only course open to the court is to proceed under Rule 2, when a party is absent. Explanation thereto give 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 on 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.
The crucial expression in the Explanation is "where the evidence or a substantial portion of the evidence of a party". There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The Court while acting under the Explanation may proceed with the case if that prima facie is the position. The Court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the Court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision.
This clearly has imprints of an exparte adjudication and not of a decision on merits. There is not even any indication as to what evidence was evaluated and/or whether the merits were tested."
13. Now let us examine some of the decisions rendered by various High Courts and the Honourable Supreme Court on this aspect.
14. In the case of Rama Panicker Divakara Panicker of Pavana Veedu Vs. Bakari Hydrose, Chennampilly and others [AIR-1990-Kerala-295], it has been held thus:-
"The power conferred on courts under Rule 3 of Order 17 to decide the suit on the merits for the default of a party is a drastic power which seriously restricts the remedy of the unsuccessful party for redress. It has to be used only sparingly in exceptional cases. Physical presence without preparedness to cooperate for anything connected with the progress of the case serves no useful purpose in deciding the suit on the merits and it is worse than absence. In any contingency the discretion is always with the Court to resort to R.2 or 3 or to grant an adjournment for deciding the suit in a regular way in spite of default. Rules 2 and 3 are only enabling provisions. In order to decide the suit on the merits, the mere existence of the conditions enumerated in R.3 alone will not be sufficient. There must be some materials for a decision on the merits, even though the materials may not be technically interpreted as evidence. Sometimes the decision in such cases could be on the basis of pleadings,documents and burden of proof. Anyhow, it is appreciable for the Court to indicate by the judgement that the decision is for default or on the merits. The only alternative of the court in cases covered by R.3 or the explanation to Rule 2 is not to decide on the merits alone. If such an interpretation is given, it will amount to an unjustified preference to one who purposely absents than to one who presents but unable to proceed with the case."
15. In the case of Ramesh Chandra Goyal Vs. IV Additional District Judge and another [2006-ALHC-3806], it has been held that when the trial court directed the case to proceed under Order 17 Rule 3 of CPC and required the defendant to produce his witness who examined himself as DW.1 and in the mean while an application was filed by the plaintiff for adjournment which was rejected and also the application was filed on the same day for recalling the said order, the trial court allowing the said application was challenged by the defendant, the Allahabad High Court has held thus:-
"Under Order 17 Rule 2, it is provided that if any of the parties fails to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or makes such other order as it thinks fit. From the above it is quite clear that due to absence of the plaintiff Rule 3 of Order 17 of CPC permitted the court to fall back upon Rule 2 of the said order and Rule 2 in turn permitted the court to proceed in any one of the modes permitted by Order 9 CPC consequently court should have passed such order which was permissible under Order 9 CPC. When plaintiff is absent and defendant is present, it is Order 9 Rule 3 which covers the situation. No other Rule of Order 9 covers such situation. By virtue of Order 9 Rule 3, the only option with the court is either to dismiss the suit or to decree the entire suit or part of the claim if defendant admits the claim. Under the said rule suit is to be dismissed in default. There is no provision under CPC under which suit can be dismissed on merit in the absence of plaintiff particularly when evidence has not been adduced by the plaintiff."
16. In yet another case reported in Smt.Gulab Devi, widow of Vishwanath Sahai Vs. Smt.Premavati widow of Kanahyalal and others [AIR-1996-All- 22] when the plaintiff and his counsel were present and the defendant's petition for adjournment was rejected, the trial court proceeded under Order 17 Rule 3 and decided the case on merits, the Allahabad High Court has held that the procedure adopted by the court below is not proper and held that at first the court could proceed under Order 17 Rule 2 of CPC only and proceeding under Order 17 Rule 3 would be applicable only when parties were present meaning thereby all the parties to the suit.
17. The Honourable Supreme Court in the case of Prakash Chander Manchanda and another Vs. Janki Manchanda [AIR-1987-SC-42] has emphasised the said position of law as here under:-
"If on a date fixed, one of the parties to the suit remain absent and for that party no evidence has been examined upto that date the court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 of CPC. After the amendment by Act 104 of 1976 to O.17 R.2 and 3 in cases where a party is absent only course is as mentioned in O.17 R.3(b) to proceed under R.2. Therefore, in absence of the defendant, the Court had no option but proceed under R.2. Similarly the language of R.2 as now stands also clearly lays down that if any one of the parties fails to appeal, the Court has to proceed to dispose of the suit in one of the modes directed under O.9. The explanation to R.2 given a discretion to the court to proceed under R.3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence.
Also in such a case, the court cannot proceed to dispose of the suit on merits and after it proceeds to dispose of the suit in any one of the modes provided under O.9 in the present case to pass exparte decree, the defendant can subsequently file an application under O.9 R.13 for setting aside exparte decree. Decision of Delhi High Court reversed.
18. Likewise in another decision of the Honourable Supreme Court rendered in the case of Mohandas and others Vs. Ghisia Bai and others [AIR-2002- SC-2436], their Lordships held in a similar facts that on the date fixed for leading evidence by the plaintiff, instead of leading evidence, the plaintiff filed an application for seeking better particulars of written statement and the same was rejected and the request for short adjournment was also negatived and the trial court dismissed the suit under Order 17 Rule 3 of CPC, the Honourable Supreme Court held that the said procedure adopted by the trial court is not proper, in view of the fact that neither the plaintiff nor his witness being present, the suit has to be dismissed under Order 17 Rule 2 and not under Order 17 Rule 3 of CPC.
19. The case referred to by the learned counsel for the respondent reported in 2001-1-MLJ-15 is not a case where Order 17 Rule 2 of CPC would apply. In the said case, the trial had commenced, plaintiff's witnesses have been cross examined by the counsel for the defendants and when the matter was adjourned for defendant's evidence, despite several adjournments, the defendant did not produce his witnesses and when the matter had been posted for the evidence of the defendants as a last chance, the counsel for the defendants had reported no instructions and in such circumstances, the trial court proceeded under Order 17 Rule 3 of CPC which was upheld by this court, holding that the report of no instructions by the counsel is obviously not an act of the counsel in his personal capacity, but it would amount to abstaining from taking part in the proceedings on behalf of the party.
20. From the above decisions, it is clear that for warranting the application under Order 17 Rule 3 of CPC, it is essential that the court could proceed only when the parties were present, meaning thereby, all the parties of the suit. Otherwise, if the parties were not present, the court could proceed only under Order 17 Rule 2. Order 17 Rule 2 of CPC provides that on the failure of any or both of the parties to appear on the adjourned date of hearing, two alternative courses are open to the court viz. the first one is to dismiss the suit for default, if the plaintiff is absent or decree the suit exparte in case of absence of the defendant. The second course is instead of following any of the above courses contemplated by Order 9, the court may pass such other order as it thinks fit.
21. It is relevant to point out that before amendment of Order 17 Rule 3 in 1976, this rule did not make any distinction in the absence or presence of the party on the adjourned date of hearing and could proceed with the case forthwith if the party had defaulted in carrying out the purpose for which the adjournment had been granted to it. However, after the amendment, the position is quite distinct and court can proceed under Order 17 Rule 3 only if the parties are present, but if the parties or any of them is absent, the court has no option but to act under Order 17 Rule 2 of CPC.
22. Hence, in the present case, where the plaintiff was absent on the adjourned date hearing and no evidence of the plaintiff or substantial part thereof had been recorded, in view of the settled position of law, the suit has to be dismissed in default by invoking the provisions of Order 17 Rule 2 and not by resorting to Order 7 Rule 3 of CPC.
23. Indisputably the plaintiff was absent on the adjourned date of hearing and she was neither represented by her counsel. Therefore on the adjourned date of hearing, the plaintiff did not produce her evidence, but the defendant was present. Under sub clause (2) of Rule 3, if the parties are present meaning thereby both the plaintiff and the defendant, then only the court is at liberty to proceed to decide the suit forthwith if under sub clause
(b) if the parties are absent or any other party is absent, then it shall proceed only under Rule 2. In this case, admittedly the plaintiff was absent on 10.7.2002 and therefore sub clause (a) of Rule 3 would not get attracted, because if the said sub clause has to apply, the parties to the suit must be present. Since one of the parties namely the plaintiff was absent in this case, the trial court has no other option except to proceed under Rule 2 of Order 17 of CPC. In such a case, the trial court ought to have proceeded to dispose of the suit by following the modes directed in that behalf by Order 9 which means a dismissal of suit for default.
24. After the insertion of Explanation, if the evidence or a substantial portion of the evidence of any party has already been recorded and if such party fails to appear, then the court can proceed with the case at its discretion as if such party was present. That means when the suit is covered under Order 17 Rule 3 of CPC and even if one of the parties who had already let in evidence or substantial portion thereof, then he is deemed to be present for the purpose of Rule 3(a) and the court can proceed to decide the suit forthwith. In this case, the plaintiff has not let in evidence at all and therefore, the Explanation to Rule 2 does not get attracted. Therefore, the trial court had no jurisdiction to pass a decree on merits and it ought to have disposed of the suit only in terms of Order 17 Rule 2 of CPC without the aid of the Explanation to the said sub rule. It is no doubt true that under Rule 6D of Order 8 of CPC even if the plaintiff's claim in the suit is dismissed, the defendant has got a right to press his counter claim and seek a decree against the plaintiff which would only be an exparte decree and not a decree on merits.
24. Therefore, in the light of the decisions referred above, I am of the considered view that the applications under Order 9 Rule 9 of CPC filed by the plaintiff as against the dismissal of his suit and under Order 9 Rule 13 of CPC as against the decree passed on the counter claim by the petitioner/plaintiff are maintainable.
25. Accordingly, I hold that the decree passed in the suit in OS.NO.88/2000 is not a decree on merits and therefore, the applications filed by the petitioner /plaintiff have to be entertained by the trial court. In such view of the matter, the order of the court below is set aside and the court below is directed to number the applications and pass orders on merits and in accordance with law. Having regard to the fact that the suit is of the year 2002, the court below is directed to pass orders in the said applications in accordance with law in any event not later than two months from the date of receipt of a copy of this order. These Civil Revision Petitions are ordered accordingly. No costs. Consequently, the connected MPs are closed.
Srcm To:
The learned Sub Judge, Virudhunagar