ANJUMAN E TAHARI Vs. SHAH NAWAZ BEGUM

JUDGEMENT

(1.) This revision is directed against the order in LA. No. 447/87 in O.S. No.71/84 in the Court of the Principal Subordinate Judge, R.R. District, Saroornagar, Hyderabad. The Petitioner herein filed as suit O.S. No. 749/72 in the court of the 5th Addl. Judge, City Civil Court, Hyderabad against the defendants. In that suit evidence on behalf of both the parties was adduced and when the arguments were partly heard the suit was transferred to the Court of the Subordinate Judge, R.R. District on the formation of the separate District Court and renumbered as O.S. 71/84. On 25-4-84 the learned Subordinate Judge decreed the suit. The defendants filed application under Or. 9 Rule 13 C.P.C. to set aside the ex parte decree contending that after the suit was transferred to the Prl. Subordinate Judge's Court of Rangareddy district, they did not have notice of the date of the hearing because the counsel who was appearing for the defendant in the City Civil Court endorsed on the notice that notice should be taken to the parties but notice was not actually taken to them. The learned Subordinate Judge accepted that contention and set aside the decree treating it as ex parte decree. This revision is filed against the said order.

(2.) The contention of the learned counsel for the petitioner is that the decree passed by the learned Principal Subordinate Judge cannot be treated as ex parte decree in view of the explanation added to Order 17 Rule 2 C.P.C. and the trial Court having chosen to follow that procedure and having granted decree, it is no longer open to the trial court to treat it as an ex parte decree.

(3.) Order 17 Rule 2 C.P.C. provides that where on any day to which the hearing of the suit is adjourned, the parties or any of them fails to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. The explanation which is added by the amendment in 1976 reads that where the evidence or substantial portion of the evidence of any party has already been reduced 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. There is also another explanation added in Andhra Pradesh on 27-4-1961 which reads as follows:- "The mere presence in Court of party or his counsel not duly instructed shall not be considered to be an appearance of the party within the meaning of this rule". Therefore, it is contended that as the court has exercised its discretion to proceed as per the explanation, it cannot be treated to be an ex parte decree.