DELHI DEVELOPMENT AUTHORITY Vs. ANANT RAJ AGENCIES

JUDGEMENT

(1.) The question raised in this appeal is about applicability of Order 9 Rule 13 Civil Procedure Code to case which is decided on merits in the absence of a party after pleadings and evidence of parties are complete. Briefly, the facts are that the appellant had filed objections against an award in the proceedings pending before the learned Singh Judge for making the award a rule of court. The court framed issues on the basis of the objections filed against the award. After framing of the issues both the parties made a statement before the court that they did not want to lead any evidence with respect to the issues framed in the suit. However, they requested that the arbitration record be read in evidence at the item of hearing of the objections. Thereafter the suit was listed for final hearing and disposal on several dates before the learned Single Judge. On 25/03/1996 none appeared for the objector/DDA. The matter was adjourned to 1/08/1996. On 1/08/1996, the learned Single Judge heard the counsel for the claimant for some time and adjourned the case to 19/08/1996 to give another chance to the objector/DDA to appear. However, on 19/08/1996 also none appeared for the objector/DDA. The matter was heard and decided on merits on that date. The award was made a rule of the court with some modification. Subsequently an application was filed by the objector/DDA under Order 9 Rule 13 Civil Procedure Code for setting aside the decree. The learned Single Judge by the impugned order dated 26/07/2000 found that in such facts, an application under Order 9 Rule 13 Civil Procedure Code was not maintainable. Therefore, the application was rejected. The present appeal is directed against that order. The learned counsel for the appellant has argued that since there was no appearance on behalf of the objector/DDA, the court took up the matter on 19/08/1996 in the absence of the objector and, therefore, it was a case of an ex parte decree and the application under Order 9 Rule 13 Civil Procedure Code was maintainable. In this behalf he has relied on a judgment of this court in M/s. Bhagwan Dass bros. v. Ghulam Ahmed Dar & Others, AIR 1992 Delhi 22.

(2.) On the other hand the learned counsel for the respondent/decree holder has submitted that the case was posted for final hearing and the pleadings and evidence were complete. The court heard and decided the matter on merits and, therefore, it could not said to be a case of an ex parte decree. He has drawn our attention to Order 17 Rule 2 Civil Procedure Code particularly to the Explanation added to Rule 2 by the Civil Procedure Code Amendment Act of 1976. The Explanation is reproduced as under :-

(3.) This Explanation makes it very clear that when evidence or a substantial portion of evidence of a party has already been recorded and such party fails to appear on the date fixed for hearing of the suit, the court can proceed to decide the case as if the party was present. This Explanation squarely applies in the facts of the present case. The evidence of the parties was complete in the sense that counsel for both the parties had made a statement before the court that they did not want to lead any evidence on the issues framed in the case and they wanted the record of arbitration to be read in evidence. Apart from this, it is to be noted that the case was decided on merits and not by way of ex parte proceedings. In fact the court modified the award while making it a rule of court. The learned counsel for the respondent has drawn our attention to at least three decisions of this court besides decisions of other High Courts taking the view that in such circumstances Order 9 Rule 13 Civil Procedure Code does not apply because such a case is not a case of an ex parte decree having been passed. The decisions of this court are reported as :