RAJ PREM MALIK Vs. GAMBHIR SINGH

JUDGEMENT

(1.) With the consent of learned counsel for the parties, the appeal is taken up for final disposal. Arguments heard.

(2.) The appellant/defendant was proceeded against ex parte by the trial court on 6th April, 1999. It is indisputable fact that the said ex parte order was passed under Order 17 Rule 2 CPC and not under Order 17 Rule 3 CPC. Thereafter, the appellant moved an application dated 31.05.1999 before the said Court for setting aside the ex parte decree passed by the learned Additional District Judge. It was averred that two suits were filed, out of which, one suit was filed by the bank against both the appellant, who was the guarantor, and the respondent, the principal borrower and the second suit was filed by the respondent against the appellant. Learned counsel for the respondent has alleged that he has filed suit against the appellant on the ground that the truck in question was taken by the guarantor and he has earned profits after plying it. The appellant has explained these facts in para 5 of the application at page 20 of the file moved under Order 9 Rule 13 which runs as follows :

(3.) Learned counsel for the appellant has relied upon the judgment of the Supreme Court in the case of Prakash Chander Manchanda and Another Vs. Smt. Janki Manchanda reported in AIR 1987 Supreme Court 42, wherein it was held that If on a date fixed, one of the parties to the suit remains absent and for that party no evidence has been examined up to 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 the Civil P.C. After the Amendment by Act 104 of 1976 to Order 17, Rules 2 and 3, in cases where a party is absent only course is as mentioned in Order 17 Rule 3 (b) to proceed under Rule 2. Therefore, in absence of the defendant, the Court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as now stands also clearly lays down that if any one of the parties fails to 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 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. Also, in such a case, the Court cannot dispose of the suit on merits and after it proceeds to dispose of the suit in any one of the modes provided under Order 9, in the present case to pass ex parte decree, the defendant can subsequently file an application under Order 9 Rule 13 for setting aside ex parte decree.