T KALYANASUNDARAM Vs. M S ARUMUGANAYAKAR

JUDGEMENT

(1.) THIS appeal was admitted on 24. 6. 2005. Having regard to the controversy involved in the appeal we wanted to find out from Mr. T. P. Manoharan, learned counsel, who had entered caveat for the respondent, as to whether we can dispose of the appeal itself on merits after calling for the records. Mr. T. P. Manoharan, learned counsel appearing for the respondent, readily agreed. Therefore, we directed the office to call for the records on 24. 6. 2005 itself when the appeal was admitted. Heard the learned counsel on either side.

(2.) THE defendant in O. S. No. 44 of 2002 on the file of additional Sub Judge, Pondicherry is the appellant in this appeal. In that suit he filed I. A. No. 341 of 2003 under order IX Rule 13 to have the decree dated 13. 10. 2003, which according to him had been passed ex parte, set aside. THE learned Trial Judge dismissed that application on the ground that as the suit stands disposed of on merits, the application under Order IX Rule 13 of the Code of Civil Procedure is misconceived. Mr. R. Subramanian, learned counsel appearing for the appellant would submit that though the judgment of the Trial Court in the suit indicates that it is a decree on merits, yet, in Law, it cannot be so treated. Learned counsel would then submit that it is true that the Trial Court had the evidence in chief of P. Ws. 1 to 5 and they are yet to be cross examined. Learned counsel would then add that the defendant had neither let in any oral evidence nor documentary evidence though he was given an opportunity. THErefore according to him, on a reading of Order XVII Rules 2 and 3 together, the Court has no other option except, on the facts available in this case as noted above, to decree the suit ex parte only and it has no option to decree the suit on merits. If that is accepted, then, the application filed under Order IX Rule 13 is maintainable. Learned counsel also relied upon a judgment of the Supreme Court reported in (2003)2 M. L. J 186 (S. C.) (JANAKIRAMAIAH CHETTY v. PARTHASARATHI)wherein the scope of Order XVII Rules 2 and 3 came up for consideration and analysis. On the contra, learned counsel appearing for the respondent would submit that if the explanation to Rule 2 of Order XVII is taken into account, then on the evidence in chief of P. Ws. 1 to 5 available on record, the Court has a discretion to dispose of the suit as contemplated under Order XVII Rule 3 (a)of the Code of Civil Procedure.

(3.) LET us now examine Rule 3 on the established facts in this case. The plaintiff had examined P. Ws. 1 to 5 in chief. Therefore it is clear that the defendant is given time to cross examine those witnesses already examined on the side of the plaintiff. Since he did not do that the plaintiff's side was closed and the suit stood adjourned to a future date for defence. The defendant neither took steps to recall P. Ws. 1 to 5 to cross examine them nor let in any evidence. Therefore it could be taken to mean that the defendant is called upon to perform an act necessary to the further progress of the suit. Admittedly, in this case, the defendant did not perform such act namely, the act of cross examining P. Ws. 1 to 5 or letting in his evidence. Therefore on the above noted position, namely, when the defendant did not perform the act of cross examining the witnesses examined on the side of the plaintiff on the date fixed and did not let in any evidence at all on his side, what should the court do, is set out, as already noted, in sub clauses (a) and (b ). Under sub clause (a) of Rule 3, if the parties are present meaning thereby the plaintiff and the defendant, then the Court is at liberty to proceed to decide the suit forthwith or under sub-clause (b) if the parties are, or any of them is absent, then it shall proceed only under Rule 2. In this case, admittedly, the defendant was absent on 13. 10. 2003. Sub clause (a) of Rule 3 would not get attracted to the case on hand because if the sub clause has to apply, the parties to the suit must be present. Since one of the parties to the suit (i. e) the defendant is absent in this case, the Court has no other option except to proceed to dispose of the suit under Rule 2 of Order XVII. As we already noted, but for the explanation added by Amending Act 104 of 1976, the Court under Rule 2 normally proceeds to dispose of the suit by following the modes directed in that behalf by order IX, which means, an ex parte decree. But after the insertion of explanation, the Court's power stands enlarged. Under the Explanation, if 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. . . . . . . . . . . . . the Court may at its discretion proceed with the case as if such party were present. This only means that when the suit is covered under Rule 3 of Order XVII and even if one of the parties, who had already let in evidence or substantial portion thereof, is absent, even then he is deemed to be present for the purpose of rule 3 (a) and the Court can proceed to decide the suit forthwith. The expressions "any party"; "such party" and "such party" appearing in various portions of the Explanation to Rule 2 refer only to one party namely, a party, whose evidence or a substantial portion of the evidence had already been recorded and such party failing to appear. In this case, the plaintiff had examined all his witnesses in chief. As the defendant did not cross examine them, the plaintiff's side was closed and the defendant was called upon to produce his evidence, which he failed. If the explanation to Rule 2 of Order XVII gets attracted, then, the Court may exercise its power under Order XVII Rule 3 (a) of the Code of Civil Procedure. Therefore the absence of a party, which has let in his evidence or a substantial portion of his evidence alone is a relevant factor to be taken into account in resorting to the Explanation to Rule 2 of Order XVII of the Code of civil Procedure. In this case, the defendant was absent and no evidence at all is on record on his behalf. Therefore the Explanation to Rule 2 does not get attract to the case on hand. If that is so, then on a reading of Order XVII rule 3 (b) and Rule 2 of Order XVII alone without the aid of Explanation to Rule 2, the Court can dispose of the suit in one of the modes directed in that behalf by Order IX.