RAGHUBIR Vs. DEVENDRA KUMAR ARORA

JUDGEMENT

(1.) THIS is a defendant's revision under section 115, CPC against the judgment and order dated 17- 12-75 passed by the Second Additional District Judge, Gorakhpur.

(2.) BRIEFLY stated the facts giving rise to this revision application are that the plaintiff opposite party filed a suit in the court of the Munsif, Gorakhpur for ejectment of the defendant-revisionist from the premises in suit and for the recovery of arrears of rent. During the pendency of the suit the U. P. Civil Laws (Amendment) Act, 1972, came into force and the suit was transferred to the Small Cause Court on 27-2-1973. On 7-4-1973 the parties appeared before that Court and 16-5-1973 was fixed for final hearing. Under the amended Order 15, Rule 5, CPC the defendant was required to deposit the entire arrears of rent and damages admitted by him by the first hearing after the said amendment. The defendant failed to do so, and on 9-8-73 the plaintiff moved an application, 30 -C, for striking off his defence. 25-8-73 was fixed for its disposal. Ultimately it was taken up on 2-11-1973 when the written statement was struck off under Order 15 Rule 5 CPC and 18- 12-73 and thereafter 29-1-74 were fixed for hearing of the case. On the latter date the defendant applied for time to deposit rent. He was allowed to do so by 9-2-1974. Again he failed to deposit the rent and moved an application 32(C) for further extension of time. It was rejected on 9-2-74 and 21-3-74 was fixed for hearing. On 21-3-74 and 29-3-74 there was no Presiding Officer of the Court and the suit was taken up on 2-5-74 for ex- parte hearing. On this date the defendant remained absent. The plaintiff examined one witness and the suit was decreed ex-parte. On 6-5-1974 the defendant moved an application purporting to be under Order IX Rule 13, CPC for setting aside the ex-parte decree (38-C)' on the ground that when the case was called out he went to call his learned counsel but by the time he returned the suit was decreed exparte. He filed an affidavit also to support his contention. The plaintiff opposed it (vide 48-C) alleging that the defendant had not turned up on that date. The trial court dismissed it by the following order :-

(3.) THE first point for consideration is whether the application under Order IX rule 13 CPC was maintainable. For this purpose it is necessary to enquire whether the decree passed by the trial court on 2-5-74 was under rule 2 or rule 3 of Order 17 CPC. It is needless to say that after amendment of these rules by this Court they have become mutually exclusive and if a case falls under rule 2 it will not be open to the court to proceed under rule 3, Munna Lal v. Jai Prakash, 1968 AWR 860. THE learned counsel for the opposite party has relied on the following explanation to amended rule 2 : "No party shall be deemed to have failed to appear if he is either present or represented in court by agent or pleader though engaged only for the purposes of making an application." It is argued that according to the defendant himself he had come to court and had also engaged a counsel. THErefore, he should be deemed not to have failed to appear. THEre is no force in this contention because the circumstances in which the order was passed will have to be examined and the order passed will have to be interpreted to find out whether the order in law and substance is one under Or. 17 rule 3 or under Or. 17 rule 2 read with Order 9. In the instant case the suit was adjourned on 21-3-1974 and 29-3-74 as there was no Presiding Officer of the Court and 2-5-1974 was fixed for final hearing. On this date the defendant did not put in his appearance in court as will be evident from the order sheet. He appears to have remained outside the court room and gone away to call his counsel when the case was called. By the time he returned the suit was decided. His learned counsel did not appear before the Court at all. He did not even do any thing to represent the defendant. In these circumstances the suit was rightly decided exparte. This view finds support from the case of Rattan Chand v. Brij Bhushan, 1968 AWR 658 and the Full Bench decision in M. S. Khalsa v. Chiranji Lal, 1976 AWC 23. THE application was clearly maintainable under Or. IX rule 13 CPC.