RINOO ZINGAR MESHRAM Vs. PRABHAKAR VISHNU VYAWAHARE

JUDGEMENT

(1.) THE short question that arises for consideration in this revision application is whether the decree passed by the civil Judge, Senior Division, Bhandara on 15 -11 -1972 was an ex -parte decree within the meaning of Order 9, Rule 6 of the Code of Civil Procedure, 1908.

(2.) THE non -applicant filed the said suit against the revision applicant for possession of the suit land. The suit was stayed on a reference made to the Tenancy Court and after the issue referred to the Tenancy Court was finally decided by this Court, the suit was taken on file on 15 -6 -72 and was fixed for evidence on 3 -7 -1972. On that date, on an application made by the non -applicant (original plaintiff), the suit was adjourned to 10 -7 -1972 for evidence of parties. On 10 -7 -1972 the revision applicant remained absent. The non -applicant examined himself and closed his case on that date. The judgment, however, was passed on 15 -11 -1972 after several adjournments for that purpose. Thereafter on 7 -12 -1972 the revision applicant filed Regular Miscellaneous Judicial Case No. 54 of 1972 under Order 9, Rule 13 of the Civil Procedure Code for setting aside the decree on the ground that it was passed ex parte because of his inability to attend the Court on account of illness. The Trial Judge disbelieved the evidence led by the revision applicant to show that illness prevented him from attending the Court on the date on which the suit was fixed for hearing. Consequently he dismissed the petition with costs. Being aggrieved, the revision applicant filed Misc. Civil Appeal No. 14 of 1974 in the District Court, Bhandara. The Assistant Judge, Bhandara, who heard the appeal observed that the decree was passed on merits under Order 17, Rule 2 and hence was not an ex parte decree. He, therefore, held that the only remedy the revision applicant had was to prefer an appeal against the decree and the application filed by him under Order 9, Rule 13 was not maintainable. In view of the discrepancies pointed out by the learned Trial Judge in the oral evidence led by the revision applicant, the learned Assistant Judge did not see any reason to differ from the appreciation of evidence made by the Trial Judge. The Assistant Judge, therefore, confirmed the order and dismissed the appeal with costs. It is an admitted position that no evidence was recorded on 3 -7 -1972, the date on which the suit, was first fixed for hearing after the tenancy reference was finally decided by this Court. As mentioned above, on 3 -7 -1972 the non -applicant applied for an adjournment and the suit was fixed for recording evidence on 10 -7 -1972. On that date the revision applicant remained absent and the learned Trial Judge without passing any formal ex parte order, proceeded to record the evidence led by the non -applicant and passed the decree solely on the basis of the evidence recorded after revision applicant's default in appearance. The lower appellate Court, therefore, was wrong in holding that the decree was one under the second part of Rule 2 of Order 17, which as it stood before the amendment, read as follows:

(3.) The scope of this Rule was considered by Their Lordships of the Supreme Court in the case Sangram Singh v. Election Tribunal, Kotah and another : A I R 1955 S C 425. The relevant portion of the Head Note 'o', which relates to the scope of Order 17, Rule 2 reads as follows :