GURUSANTHAYYA Vs. SETRA VEERAYYA

JUDGEMENT

(1.) This is an appeal against the order of the District Judge of Bellary refusing to set aside an order dismissing a suit for default. What happened was that on 8- 9-1950 when the suit came on for hearing the predecessor of the learned Judge, from whose order this appeal is filed, passed an order stating that certain issues had been decided against the contentions raised by the defendants, and that the suit would stand posted to 18-9-1950 for the plaintiff's rejoinder. On 18-9-1950 there was no appearance, and the learned District Judge thereupon passed an order in the following terms:

(2.) In our opinion, the learned District Judge erred in not accepting the statements contained in the affidavit of Mr. Venugopaiachariar. We are of opinion that there was sufficient reason for the non-appearance of the plaintiff or his pleader when the case was called in court. It might be remarked that the usual procedure in such circumstances would be not to file the rejoinder earlier in the office, so that the same might be sent over to the court when the case is taken up, but to present the rejoinder in court through the Bench clerk. Mr. Venugopaiachariar thought that he could resort to that step instead of filing it earlier. Even if that is not the proper procedure, still there is an error of judgment and inadvertent mistake and we cannot ascribe any wanton culpability to the pleader in this matter. We are satisfied that the plaintiff had sufficient reasons for not appearing in court when the case was called on 18-9- 1950.

(3.) But the really important question is whether Order 17, Rule 2 or Order 17, Rule 3 applies. The distinction between the two rules is that in order that Order 17, Rule 2 should apply, a party or his pleader should not be present in court, whereas in the case of Order 17, Rule 3, even if the party or his pleader is present in court if there is a failure to produce evidence, to cause the attendance of witnesses or to perform any other act necessary to the further progress of the suit Order 17, Rule 3 applies. That this is the correct distinction is exemplified by a decision of this court in -- 'Ellammal v. Karuppan Chetti', 70 Gurusanthayya, son of Kariveerappa vs. Setra Veerayya and Ors. (03.01.1952 - MAD... Page 2 of 4 Mad L J 688. In that case after a suit had been proceeded with for a certain time and after some witnesses were examined, the suit was adjourned to a further date. On that date neither the defendants nor their vakil appeared, and therefore an 'ex parte' decree was passed. On an application to set aside the 'ex parte' decree, the court of first instance held that Order 17, Rule 3 applied, and on appeal to the High Court, Venkatasubba Rao and Cornish JJ. had to decide the question, and they observed as follows: