PRAKASH CHANDER MANCHANDA AND ANR.versusSMT. JANKI MANCHANDA

A         PRAKASH CHANDER MANCHANDA AND ANR. ·
                             v.
                  SMT. JANK! MANCHANDA

                            NOVEMBER 18, 1986

B           [O. CHlNNAPPA REDDY AND G.L. OZA, Jl]

         Civil procedure Code, 1908-0rder 9 Rule 13 and Order 17 Rule
    2 and 3-Plaintiff's evidence over-Defendant's evidence to begin-:-                ,
    Neither defence witnesses nor any one present on behalf of defendant-
    Procedure to be followed by Court-Ex-parte decree-Setting aside of.           .
                                                                            1
C       In a snit in which the appellant was defendant, after the plaintiff's p
  evidence was over, the defendant was to begin his evidence on 24th
  January, 1985. As no witness was present, at the request of defendant's
  counsel the case was adjourned to 7th May, 1985. On that day, the case
  was transferred to another Court and the transferee Court ordered the
D case to be put up on 21st August, 1985. It being a holiday, the case was
  put up on 22nd August, 1985 when it was adjourned to 30th October,
  1985. On that day, no one was present for the defendant. The case was
  again taken up at I p.m. but the situation remained the same. Since
  none of the witnesses for defendant was also present, evidence was
  closed and case fixed for arguments for !st November. 1985. On this
E date also nobody appeared for the defendant and the case was
  adjourned to 8th November, 1985. On that day, arguments of the
  plaintiff's counsel were heard and as none was present for defendant,
  the case was fixed for judgment on !Ith November, 1985. On this date
  also nobody was present for defendant and since judgment was not
  ready it was postponed to 21st November, 1985. On this date the judg-
F ment was dictated, pronounced and decree was ordered to be prepared.

        The defendant filed an application under Order 9 Rule 13 of the ./ ~
                                                                             _.
  Code of Civil Procedure, 1908 for setting aside ex-parte decree urging     '
  that he came to know about decree on 18th January, 1986 when the
  plaintiff came to take possession. The trial Court dismissed the applica-
G tion holding that it was not maintainable because the case was disposed
  of not in accordance with Order 17 Rule 2, but in accordance with
  Order 17 Rule 3. An application for review was also dismissed by the
  Trial Court. The first appeal too was summarily dismissed by the High
  Court.

H        Allowing the appeal,

                                      288
                     P.C. MANCHANDA v. SMT. J. MANCHANDA                     289


            Held: I. The order passed by the High Court and also the trial          A
      Court rejecting the application of the appellant under Order 9 Rule I3
      of the Civil Procedure Code 1908 are set aside and the trial ·court is
      directed to dispose of the application in accordance with law. [294C]

            2. In cases where a party is absent, only course is as mentioned in
      Order !7(3)(h) to proceed undet Rule 2. The language of amended Rule          B
      2 also lays down that if any one of the parties fails fo appear, the Court
      has to proceed to dispose of the suit in one of the modes directed under
          Order 9. The Explanation to Rule 2 gives a discretion to the Court to
   0 proceed under Rule 3 even if a party is absent. but that discretion is
   "1111 limited only in case where a partv which is absent has led some evidence
 .        or has examined substantial part of their evidence. Therefore, if on a    c
          date fixed, one of the parties remains 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 ml)des prescribed under Order 9 of the Code of Civil
          Procedure. After this amendment in Order 17 Rules 2 and 3 in 1976
          there remains no doubt, and therefore, there is no possibility of any     D
          controversy. [292H-293C]

             3. In the present case, on 30th October 1985 when the case was
       called nobody was present for the defendant, and till that date .the
       plaintiff's evidence had been recorded bot no evidence for defendant
       was recorded. The defendant was only to begin on this date or an earlier E
       date when the case was adjourned. It is, therefore, clear that upto 30th
       October 1985 when the trial Court dosed the case of defendant there
       was no evidence on record on his behalf. Therefore, the Explanation to '
       Order 17 Rule 2 was not applicable at all. Apparently when the de-



r
       fendant was absent Order 17 Rule 2 only permitted the Court to pro-
     \ ceed to dispose of the matter "in any one of the modes provided under F
       Order 9. [2930-E]                                                        ·
 .         4. Order 17 Rule 3 as it stands was.not applicable to the facts of
     this case as admittedly on the date when the evidence of the defendant
     was closed nobody appeared for the defendant and, therefore, the
     Court when it proceeded to dispose of the suit on merits had committed         G
     an error. Even on the review application, the trial Court went on in the
     controversy about Order 17 Rules 2 and 3 which existed before the
"r   amendment and rejected the review application and on appeal, the
     High Court also unfortunately dismissed the appeal in limine by one
     word. [293F-G]'                         · .
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2847                     H
      of 1986
    290                   SUPREME COURT REPORTS             [1987] l S.C.R.

A        From the Judgment and Order dated 1.8. 1986 of the Delhi High
    Court in F.A.O. No. 146 of t986.

          Soli J. Sorabjee, E.C. Agarwala and Lalit for the Appellants.

        T.S.K. Iyer, B.P. Maheshwari, V.N. Ganpule, S.K. Agnihotri
B and J. Singh for the Respondent.

          The Judgment of the Court was delivered by

        OZA, J. This appeal arises as a result of leave granted by this 'ti'
  Court against the sumtnary dismissal of the first appeal by the appel-
C lant before the High Court of Delhi. The first appeal was filed against
  an order passed by Sub Judge Isl Class, Delhi rejecting the review
  petition filed by the petitioner. The facts necessary for disposal of this  )
  case are that in a suit filed against the present appellant in the Court of
  Sub Judge Isl Class, Delhi when the matter was fixed for evidence of
  the defendant as the plaintiffs evidence was over and defendant-
D present appellant's evidence was to begin when the case was taken up
  on 24th January, 1985. The order-sheet of the Court shows that no
  DW is present and at the request of the counsel of the defendant the
  case was adjourned to 7th May, 1985. It is stated that on this date for
  some reason, the case was transferred to another board and in the
  transferee court, the order-sheet showed presence of the counsel for
E parties and it further shows that as the case was received on transfer it
  was ordered to be put up on 2 lst August, 1985.

       Learned counsel for the appellant disputed the mention in these
  proceedings about the presence of the counsel of the defendant-
  appellant. B-ut in any event as it is not important·for the decision of this
F appeal it is not necessary to go into that question.
                                                                                1
                                                                               r -·

          On 2 lst, August, 198_5 it appears that there was a holiday and
  therefore the case was put up before the learned Judge on 22nd
  August, 1985 and it was postponed to .30th October, 1985 for the
  evidence of the defendant. On 30th October, 1985 the order-sheet
G showed that the counsel for plaintiff was present but no one was pre-
  sent for the defendant. The Court therefore directed the case to be
  taken up at I P.M. At l P.M. again the situation remained the same as
  it is clear from the- order-sheet. It also shows that none of the witnesses
  for defendant was also present and therefore the Court passed the
H order: "the case was called but none has appeared on behalf of the
  defendant and no DWs present. The evidence of defendant closed.
                 .                       .        .
               P.C. MANCHANDA v. S)llT. J. MANCHANDA [OZA, J.I              291
                                     /
     Now to come up for arguments." The next date fixed was 1st                   A
     November, 1985. On this date also nobody appeared for the defendant
     and counsel for the plaintiff who was present sought adjournment and
     the case was adjourned to 8th November, 1985. On 8th November,
     1985 arguments of the plaintiffs counsel were heard and as none was
     present for the defendant the case was fixed for judgment on ! Ith
     November, 1985. On this date also counsel for the plaintiff was pre-         B
     sent. Nobody was present for the defendant and order-sheet shows
     that as judgment was not ready it was postponed to 2 lst November,
      1985. On 2 lst November, the judgment was dictated and pronounced
 · , and the order-sheet also shows that the learned Judge ordered decree
 ~ to be prepared. It appears that after this the defendant claimed. that
     they came to know about the decree on 18th January, 1986 as on that          c
     day the plaintiff came to take possession and therefore filed an appli-
     cation under Order 9 Rule 13 for setting aside the exparte decree
     which was dismissed by the trial court holding that the case was dis'
     posed of not in accordance with Order 17 Rule 2 but in accordance
     with Order 17 Rule 3 and therefore the application under Order 9 Rule
     13 was not maintainable.                                                     D

          The appellant-defendant thereafter filed an application for
     review but that application also was dismissed by the trial court.
     Thereafter the first appeal was filed before the High Court of Delhi
     which was dismissed summarily by the impugned order.
                                                      •                           E
            Learned counsel for parties submitted at length the controversy
      that existed before the amendment of Code of Civil Procedure in 1976



  .
      about the interpretation of Order 17 Rule 2 and Order 17 Rule 3.
      Apparently there were two views, one was that Order 17 Rule 3 could



r
      be used for deciding the matter on merits if the party is present but has
      failed to do what was expected of that party to do and this rule could      F
    . not be used against a party who was present whereas the other view
      was that even if a party is absent but has failed to do what was expected
      of him then it was the discretion of the Court either to proceed under
      Order 17 Rule 2 or under Order 17 Rule 3.

           In some decisions, the High Courts have gone to the extent of          G
     saying that even if the trail court disposes of the matter as if it was
     disposing it on merits under Order 17 Rule 3 still if the party against
     whom the decision was pronounced was absent it could not be treated
     to be a disposal in accordance with Order 17 Rule 3 and provisions of
     Order 9 will be available to such a party either for restoration or for
     setting aside an exparte decree. Learned counsel placed before us a          H
                         SUPREME COURT REPOB.TS          [1987] I S.C.R.

A number of decisions of various High Courts on this aspect of the mat-       )
  ter. But in our opinion in view of the amendment to these two rules
  which have been made by 1976 amendment of the Code·of Civil Proce-
  dure it is not disputed that to the facts of this case, Code of Civil
  Procedure as amended will be applicable and therefore it is not neces-
  sary for us to go into that question. Order 17 Rule 2 and Rule 3 as they
B now stand reads:
                                                                               j
               "Order 17, Rule 2: Procedure if parties fail to appear on
               day fixed:

                     Where, on any day to which the bearing of the suit is
               adjourned, the parties or any of them fail to appear, the
c              Court may proceed to dispose of the suit in one of the
               modes directed in that behalf of Order IX or make such             )
               other order as it thinks fit.

                     (Explanation-Where the evidence or a substantial
D              portion of the evidence of any party, has already been re-
               corded 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.

E              Order 17 Rule 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 withnesses, or to perform any other act
F              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
G
               (b) if the parties are, or any of them is absent, proceed
               under Rule 2."

  It is clear that in cases where a party is absent only course is as
  mentioned in Order 17(3)(b) to proceed under Rule 2. It is therefore
H clear that in absence of the defendant, the Court had no option but to
                 P.C. MANCHANDA v. SMT. i. MANCHANDA !OZA. J.]             293

     proceed under Rule .2, Similarly the language of Rule 2 as now stands
     also clearly lays down that if any one of the parties fail to appear, the A
     Court has to proceed to dispose of the suit in one of the modes directed
     under Order 9. The explanation to, Rule 2 gives a discretion to the
     Court to proceed under Rule 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. It is B
•f   therefore clear that if on a date fixed, one of the parties 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 ~he matter in accord-
   ' ance with Order 17 Rule 2 in any one of the modes prescribed under
  ~ Order 9 of the Code of Civil Procedure. It is therefore clear that after
     this amendment in Order 17 Rules 2 and 3 of the Code of Civil Proce-
     dure there remains no doubt and therefore there is no possibility of c
     any controversy. In this view of the matter it is clear that when in the
     present case on 30th October 1985 when the case was called nobody
     was present for the defendant. It is also clear that till that date the ·
     plaintiffs evidence has been recorded but no evidence for defendant
     was recorded. The defendant was only to begin on this date or an D
     earlier date when the case was adjourned. It is therefore clear that
     upto the date i.e. 30th October, 1985 when the trial court closed the
     case of defendant there was no evidence on record on behalf of the
     defendant. In this view of the matter therefore the explanation to
     Order 17 Rule 2 was not applicable at all. Apparently when the
     defendant was absent Order 17 Rule 2 only permitted the Court to E
     proceed to dispose of the matter in any one of the modes provided
     under Order 9.

             It is also clear that Order 17 Rule 3 as it stands was not applicable
      to- the facts of this case as admittedly on the date when the evidence of
,,._\ defendant was closed nobody appeared for the defendant. Iii this view F
~     of the matter it could not be disputed that the Court when proceeded
[     to dispose of the suit on merits had committed an error. Unfortunately
 •    even on the review application, the learned trial Court went on in the
      i:ontroversy about Order 17 Rules 2 and 3 which existed before the
      amendment and rejected the review application and on ·appeal, the
      High Court also unfortunately dismissed the appeal in limine by one G
      word.

•·          The learned counsel for the respondent attempted to contend
      that in this view of law as it now stands an application under Order 9
      Rule 13 will be maintainable. However it was suggested that there was
      also an objection of limitation about the acceptance of that applica-      H
                          SUPREME COU~T REPORTS             [1987] I S.C.R.

A lion. It is apparent that the learned trial Court has not considered the
   application on merits but has only rejected it as not maintainable and
  ·that order has been maintained. This objection of the learned counsel
   for the respondent is not nece~Sl\l'Y for us to go into at this stage as in
   view of th~ law discussed above, the order re,jecting the application as
   not·maintainable, has to be set aside and it will be open to the learned
8
   trial Court to consider the application under Order 9 Rule 13 and
   dispose it of in accordance with that law and while so doing, it may
   even examine the objections that may be raised by the re•pondent.

        The appeal is therefore allowed with costs. The order passed by
  Hon'ble the High Court and also the trial court rejecting the applica-
C lion of the appellant under Order 9 Rule 13 is set aside and it is
  directed that the learned trial court will proceed to hear and dispose of
  the application under Order 9 Rule 13 filed by the appellant in accord-·
  ance with law.


0 A.P.J.                                                    Appeal allowed.