BHAGYAM Vs. LUIS

JUDGEMENT

(1.) Defendants in O.S. 182 of 1986 on the file of 1st Addl. Sub-Court, Ernakulam are the appellants herein. They filed I.A. 5670/88 in O.S. 182 of 1986 under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against them. That application was dismissed and hence this appeal.

(2.) The suit was posted in the special list for trial on 7.11.88. On that day the Presiding Officer was on leave and it was adjourned to 10.11.88. On that day these appellants were not present and their Counsel made an application for adjournment. That application was dismissed and the Court examined the plaintiff and marked Exts. A-1 to A-7 documents on the plaintiff's side and decreed the suit as prayed for. Thereafter these appellants filed application under Order 9 Rule 13 for setting aside the ex parte decree.

(3.) We heard Counsel on either side. It is submitted by the appellants' Counsel that the Court below passed an ex parte decree and, therefore, a petition under Order 9 Rule 13 was maintainable. It seems that the Court must have assumed that the disposal of the suit was under Rule 3 of Order 17, or under Explanation of Rule 2 of Order 17. In this case, admittedly, these appellants were not present on 10.11.88, the date on which the suit was disposed of by the Court below. Had the Court proceeded and disposed the suit under Rule 3(a) of Order 17, a petition under Order 9 Rule 13 was not maintainable. But Rule 3(a) is applicable only when a party to the suit to whom time has been granted failed 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. It is also necessary that if the Court proceeded under Rule 3(a) the party also must be present. Admittedly, appellants were not present and they were not previously granted time and that they failed to produce their evidence or to cause attendance of their witness, the disposal of the case was not under Rule 3(a) of Order 17 (See the decisions reported in Shanmugham v. Federal Bank,1987 KerLT 23 and M. V. George v. S.M.S. Traders, 1980 KerLT 307.