SOOPI HAJI Vs. R M RAMANATHAN CHETTIAR

JUDGEMENT

(1.) A learned single Judge of this Court has disposed of a suit in purported exercise of power under O. 17, Rule 3 of the Code of Civil procedure and has dismissed the application for setting aside the ex part e decree saying: "the respondent-plaintiff filed the suit for return of the advance amount of Rs. 1 ,18,650 paid by the plaintiff to the defendants, the suit was filed in 1980 and the defendants filed their written statements only in March,1982. Issues were framed and the suit came up in the list for trial. The defendants were not ready and three weeks adjournment was granted as a matter of negligence. Again on the adjourned date, the defendants were absent and since the defendants filed written statements, evidence was let in on the plaintiffs side and the defendants' counsel cross-examined the witness. No further evidence was let in on the side of the defendants, though time was granted. The defendants are not set ex- parte and the suit was disposed of on merits. Hence, the proper course for the defendants is only to file appeal and not to invoke 0. 9, rule 13 of the Code of Civil Procedure. In other words, it is a judgment on merits and therefore this application is not maintainable". After holding that the application is not maintainable, learned Judge has also said that, ". . . in the affidavit filed in support of this application, no sufficient reasons were forthcoming and therefore their absence was deliberate and wilfu l. Ample indulgence was shown to them to defend the claim, but they were bent upon to protract the proceedings and in fact succeeded in drawing on the suit for three years taking advantage of the fact that they are the residents of Keral a ". It is rather unfortunate that in a trial on the Original side of this Court, when such was the situation that the plaintiffs were present and defendants were absent, attention of the court was not drawn to rules 2 and 3 of 0. 17, particularly the amendment by the Amendment Act, 104 of 1976. 0. 17, which contains rules as to adjournments, has existed too long for any person not knowing the true effect of the rules under it, various interpretations by the leading judgments of the courts, High Court amendments to the rules therein and the amendment by the Parliament to set at rest any controversy as to the interpretation of the rules therein. Rules 2 and 3 of this Order before 1976 Amendment read as follows: "rule 2: Where, on any day of which the hearing of the suit is adjourned, the parties or any of them fail to appear the Court may proceed to dispose of the suit in one of the modes directed in that behalf by 0. 9 or make such other order as it thinks fit. Rule 3: Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other set necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwit h' . A Bench of this Court in the case of Chandramati Ammal v. Narayanaswami Aiyar , (1910) I. L. R. 33 Mad. 241, took the view that sec. 157 of the Old Code of Civil Procedure (equivalent to Rule 2 in the present code before 1976 amendment) dealt with cases of absence of parties and Sec. 158 of the old code of Civil Procedure (Equivalent to Rule 3 of the present Code before 1976 amendment) with failure to do what was ordered. A contrary view, however, was expressed by another Bench of the Court in Naganada Iyer v. Krishnamurthi Iyer , (1911) I. L. R. 34 Mad. 97, where it was held that absence of a party on the date of the adjourned hearing did not preclude the court from dealing with the case under Sec. 158 of the old Code. The matter thus came on reference by a learned single Judge of the Court before a Full Bench in the case of Pichamma v. Sreeramulu , 34 M. L. J. 24: A. I. R. 1918 Mad. 143 (2 ). This was a reference in suit instituted first in the Court of the District Munsif of Kowur and afterwards transferred to that of the Additional district Munsif , In the latter Court, the plaintiff examined most of his witnesses and on the application of the defendants, the suit was adjourned to 7th of February,1916. On that date, neither the defendants' guardian nor the vakils were present. The District Munsif closed the case and delivered judgment in favour of the plaintiff on 8th february, 1916. When it was placed before a learned single Judge Abdur Rahim , J. , he noticed as follows: There is, in my opinion, a conflict of rulings in this court as to whether Rule 2 or Rule 3, 0. 17, applies to facts like these. In Naganad a Iyer v. Krishnamurthi Aiyar , (1910)I. L. R. 34 Mad. 97, which was a judgment ofManro. J. and myself, it was held that Sec. 158 of the old Code empowers the Court in circumstances such as those in their case to decide the suit on the merits, whether the party at whose instance the adjournment was granted was present or not at the date fixed for hearing.

(2.) IF the parties or any of them fail to appear on the fixed date, it is Open to the court to proceed either under Sec. 157 or Sec. 158. It there are no materials before the court on which to come to a proper decision on the merits, it would ordinarily deal with the case under Rule 2, otherwise under Rule

(3.) S o long as Rules 2 and 3 stand as they are, defectively though, (1) Rule 3 cannot be resorted to where the parties or any of them is absent even though on the previous date the hearing of the suit was adjourned for granting to both or to any one of them time to produce evidence or witnesses or perform any other act necessary to the further progress of the suit. Such a case would squarely be covered by Rule 2, the parties or any one of them having failed to appear. (2) Rule 3 can only be resorted to when the party, to whom time was given to produce evidence or to cause attendance of the witnesses or to perform any other act necessary for further progress of the suit, is actually present on the adjourned date of hearing but fails to do any of the acts for which the time was granted For this purpose the fictional presence envisaged by the Explanation to Rule 2 is not to be taken into consideration. It is only the factual presence which is to be taken into account. The Full Bench would recommend that the courts below in their anxiety to dispose of the suit should not readily proceed to decide the suit on the merits under Rule 3 for they have the discretion not to proceed to decide the suit forthwith under that rule. It is only in exceptional cases that this be done in order to penalis e a really negligent or cantankerous party. I would leave the matter at that. The author of the majority judgment in his detailed judgment, however, answered the question referred to the Full Bench. Whether a case in which the defendant obtains an adjournment on the date of final hearing of the suit and fails to appear on the adjourned date would be covered by Rule 2 of O. 17 of the Code of Civil Procedure and whether the court has jurisdiction to pass an order under Rule 3 of O. 17 of the Code of Civil Procedure, saying as follows: "the answer to the question. . . . is that the mentioned case is covered by Rule 2 of 0. 17 and an application under 0. 9, Rule 13, will lie even if the Court professes to act under Rule3. Rule 3 applies only when a party is present or is deemed to be present and has defaulted in doing the acts mentioned in Rule 3". The court gave this answer in a case in which a Civil judge had held that on a date fixed for final hearing, when defendants moved an application for adjournment on ground of illness and the prayer was allowed, but on the adjourned date again another application was moved, which was rejected by the Court, and the counsel for defendants stated that he had no further instructions and was therefore withdrawing from the case. The majority judgment of the Allahaba d High Court has opined in 1976 what has squarely been stated by a Full Bench of our court in a judgment reported in 1918 that, Rule 2 applies to all cases of absence of parties and rule 3 in cases of failure to-do what was ordered and, the correct rule is to treat Rule 3 as applying only to cases where the parties are present and have not satisfied the court as to the existence of any adequate reason for their not having done what they were directed to do. The consistent view, however, of the Madhya Pradesh High Court is expressed in a Full Bench consisting of five judges in the case of Ram a Ra o v. Shantiba i A. I. R. 1977 M. P. 222, which is not different from the view expressed by this Court in its judgment of the year 1918. It has said as follows: "the plain and unambiguous language of the two provisions'the deliberate departure made in the phraseology of the two Rules' the undisputed need to construe Rule 3 strictly'the consequences which necessarily follow as a result of the construction made and the heading of the two Rules, are factors which lead us without any hesitation to the conclusion that Rule 2applies to all cases of default in appearance of all or any of the parties with the result that Rule 3 does not apply to any of those cases. This conclusion also enables the defaulting party to have the order made under 0. 9 , C. P. C. set aside in the manner provided for that purpose in the code by showing that there was valid reason for default appearance on the date fixed. This is done in the manner prescribed by the code. We also think that the expression, 'such other order as it thinks fit'used in Rule 2 permits disposal of the suit and not a decision thereof on merits contemplated by Rule 3 in a mode other than that provided in 6. 9, example by an order of adjournment. A contrary conclusion would result in several needless difficulties. In the first place, that would permit an order of the type contemplated by Rule 3 even in the case of a default in appearance of any of the parties which is a construction not acceptable to us for the reasons already given. That apart, it would permit the making of an order contemplated by Rule 3 within the ambit of Rule 2 itself so that such a construction would render Rule 3 superfluous. It is settled that unless it is unavoidable, a construction which renders a provision superfluous must be rejected. All these reasons impel us to take the view that the expression 'o r make such other order as it thinks fi t' used in Rule 2 does not include within its ambit a decision falling within the ambit of Rule 3. As for Rule 3, it follows hat this Rule presupposes the presence of all parties and then the failure of the party at whose instance and for whose benefit the hearing was adjourned on the previous date to perform the act necessary to the further progress of the suit. It is only to this class of cases that Rule 3 applies and it has no application to cases falling within the ambit of Rule 2. In our opinion, whenever, such a question arises, it has first to be seen whether Rule 2 applies to the facts of a case since on Rule 2 being attracted, the operation of Rule 3 would be automatically excluded. It is only when there is no default in appearance of all any of the parties that the question of applying Rule 3 would arise to the facts of a case, provided the requirements laid down in Rule 3 are fulfilled". The Allahabad Judgment, however, had the advantage of the Allahabad High Court's amendment to the Rules. The Madhya Pradesh Judgment, above cited, has considered the amended rule. We have the advantage of the 1976 Amendment to the two Rules. Before we proceed further we may extract the amended Rule in full' Rule 2: Procedure if parties fail to appear on day fixed where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit on one of the modes directed in that behalf by 0. 9 or make such other orders as it thinks fit. Explanation: Where the evidence or a substantial portion of the evidence of any party has already been recorded 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. Rule 3: Court may proceed notwithstanding either party fails to produce evidenee ,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 witnesses, or to perform any other act 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 (b) if the parties are, or any of them is, absent, proceed under Rule 2". The clear words,'if the parties are, or any of them is absent proceed under Rule 2", thus leave no manner of doubt that in all cases of the absence of the party, the order has to be passed under Rule 2 and not under Rule 3. The words in Rule 2, 'or make such other order as it thinks fit' do not mean that the court may proceed to dispose of the suit in the absence of a party under Rule 3. Rule 3 is not attracted at all in the case of the absence of a party and thus 'or make such other order as it thinks fit' must mean an order other than to proceed to dispose of the suit in one of the modes directed in that behalf by 0. 9 of the Code but surely not to dispose of the suit on merits. 'Such other order' may be a further adjournment to enable the party, which is absent to appear or to regulate the proceedings in some other manner. There is some scope to take a view as taken by the Full Bench of the Allahabad High court in the case of M. S. Khalsa v. Chiranji La l , A. I. R. 1976 All. 290, for the reason of the language in the Explanation to Rule 2, that there is a discretion to dispose of a suit in the absence of a party on merits, which although will be an order under Rule 2, will not be different from the disposal under Rule 3. We, however, have no reason to think that the Courts shall not exercise constraint, respect the judicial verdicts in this behalf and in this court all the binding precedents shall not be followed, inasmuch as the Allahabad Full Bench in M. S. Khalsa v. Chiranji Lal , A. I. R. 1976 All. 290, has said. "the courts below in their anxiety to dispose of the suit should not readily proceed to decide the suit on the merits under Rule 3 for they have the discretion not to proceed to decide the suit forthwith under that rule. It is only in exceptional cases 'that this be done in order to penalise a really negligentor cantenkerous one party"It is also relevant to take notice of the language in the explanation that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear, that is, ifa part y's evidence isalready on the record or substantial portion of the evidence of that party has already been taken and only a negligible part of the evidence is left out and such party has failed to appear, the court may proceed with the case as if that party were present. If evidence of a party has not been taken at all and if some evidence has been taken, but substantial portion of the evidence of that party is yet to be taken and that party is absent, the Explanation shall not enable the Court to proceed with the case, in the absence of that party, but to proceed to dispose of the suit in one of the modes directed in that behalf by 0. 9 or to make such other order, that is to say, adjourn again for another date or take such steps as would ensure the appearance of the parties and their evidence. In the instant case, since we have not intended to make a digest of the case law in our judgment, we have not referred to many judgments, including a judgment of a Bench of this Court in Dakshinamoorth i v. Ponnuswami , A. I. R. 1949 Mad. 78 ,a judgment of a learned single Judge of this Court in C. P. Corers v. Government of Pondicherry , (1975)1 M. L. J. 155'a judgment of a learned single Judge of the High Court of Andhra Pradesh in the case of In re. Ramineni Suryanaray-ana ,a. I. R. 1980 A. P. 129 and a decision of a Full Bench of the High Court of Bombay in the case of Basalingappa v. Shidramappa ,a. I. R. 1943 Bo m. 321, which appear to take a contrary view'but the views expressed in these judgments obviously stand in conflict with the express language of the 1976 Amendment and consistent view of this court on the subject, right from the Full Bench judgment in the case of Pichamma v. Sreeramul u , A. I. R. 1918 Mad 143 (2 ). When we come to the facts of this case, we have no hesitation in holding that the learned single judge has committed clear error of law in holding that the application under 0. 9, Rule 13 of the Code to set aside the decree in the suit passed in the absence of the party as well as its counsel is not maintainable. We held that the impugned judgment, for the said reason, has to be set aside'and the application for setting aside the decree restored for hearing and disposal in accordance with law. It is obvious that any finding that no sufficient reasons were forthcoming and that absence was deliberate and wilfu l , has to come after such enquiry, as has been envisaged for the purpose under 0. 9, Rule 13 of the Code of Civil Procedure and not without that, the observations in the impugned judgment in this behalf are obviously not correct.