CHIDAMBARAM Vs. KALIDAS

JUDGEMENT

(1.) THIS Civil Revision Petition is against the order of the learned Principal subordinate Judge, Pondicherry, dismissing the petition under O. 9, R. 13 c. P. C. , filed by the defendant in the suit to set aside a decree passed on 24-11975, which according to the revision petitioner, the defendant, is only an ex parte decree.

(2.) S. C. No. 115 of 1974 on the file of the Court Pondicherry was instituted by the respondents herein for recovery of a sum of Rs. 540/- due as arrears of rent. The suit was contested by the defendant. Subsequently, at the stage of the trial, the defendant was absent and the counsel for the defendant was also absent on 24-1-1975. Instead of setting the defendant ex parte and passing an ex parte decree, the learned Principal Subordinate Judge of Pondicherry purported to decree the suit as prayed for under O. 17, R. 3 C. P. C. , after P. W. 1 was examined and Ex. A-1 was marked. He did not even hold that the claim had been proved. Subsequently the petition for setting aside the ex parte decree was filed before the same learned Subordinate Judge. He refused to set aside the ex parte decree because he took the view that the suit has been decreed under O. 17, R. 3 C. P. C. , and that therefore the petition under O. 9, R. 13 C. P. C. , is not maintainable.

(3.) THIS view of the learned Subordinate Judge cannot be sustained. O. 17, R. 3 c. P. C. , applies only to cases where the parties are present. Where on the date of the trial the defendant is absent the court cannot proceed under O. 17, R. 3, but should proceed under. 17, R. 2 C. P. C. , by setting the defendant ex parte and decreeing the suit after recording the evidence if the claim of the plaintiff is proved. The decree passed by the learned Subordinate Judge is in fact an ex parte decree even though he purported to pass a decree under O. 17, R. 3 c. P. C.