G LAXMAMMA Vs. R ANJAIAH

JUDGEMENT

(1.) The petitioner herein is the defendant in O.S.No.1495 of 1987 on the file of the District Munsif, Suryapet. The present revision petition was filed by her aggrieved by the orderspassed by the District Munsif as well as the Subordinate Judge on an application filed by her in I. A.No.145 of 1993 seeking to set aside the ex parte judgment and decree given by the trial Court dated 9-02-1993.

(2.) The facts that led into filing of this revision petition are: the District Munsif posted O.S.No. 1495/87 pending on his file for recording the evidence of the plaintiff on 23-1-1993. After the chief-examination is over he adjourned the case to 4-2-1993 for cross-examination of P.W.I. But the petitioner's counsel in the trial Court was not present and no representation was made on that day. In those circumstances the District Munsif passed the following order: "No cross-examination-No representation - Arguments heard". On 9-2-1993 after giving notice the District Munsif decreed the suit. Immediately the petitioner filed I.A.No.145 of 1993 under Order 9 Rule 13 . C.P.C. to set aside the ex parte order.But the District Munsif kept the application pending for more than one year and by order dated 28-3-1994 dismissed the application by holding that if really the counsel for the petitioner fell sick he would have filed an affidavit to that extent or he would have filed a memo on the date of adjournment. As such a course was not adopted, it is difficult to believe the version of the petitioner. Firstly, the practice of the trial Court in keeping the applications pending for years together is highly deplorable and deprecated. Admittedly, this application was filed on 1-3-1993 and it is after 13 months the District Munsif could find time to dispose of the application. The officer concerned is severely warned not to repeat this sort of performance in future. Be that as it may, aggrieved by the said order, the petitioner filed C.M.A.No.6/94 under Order 43 Rule 1 (d) CPC, and the appellate Court while holding that there is sufficient cause for the petitioner's Counsel to be not present in the Court on the date of adjournment, he dismissed the appeal on the ground that no C.M.A can be preferred against the Judgmentand decree passed on merits. Evidently/ the Subordinate Judge did not notice the language of Or. 17 Rules 2 and 3 of new C.P.C while dismissing the C.M.A. Or. 17 Rules 2 and 3 speak inter alia: Rule 2: Procedure if parties fail to appear on any day fixed: "Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail 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. Explanation: Where the evidence or substantial portion of the evidence of any party has already been recorded 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/' Rule 3: Court may proceed notwithstanding either party fails to produce evidence,etc.. Where any party to a suit to whom time has been granted fails to produce his evidence, orto cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under Rule 2. From the above it is seen that where a party is absent the only course left to the Court is to follow the procedure prescribed under Order 17 Rule 3 (b) and as per the said rule the Court has to follow the procedure prescribed under Order 17 Rule 2. In fact the controversy raised in this petition is squarely covered by the decision in Prakash Chander Manchanda and another vs. Smt. Janki Manchanda wherein it was held that:

(3.) As the District Munsif proceeded with the case without giving any opportunity to the defendant, the same gives discretion to the Court to proceed only under Rule 3, and deliver judgment but that discretion is limited only in cases where a party is absent who has led some evidence or has examined substantial part of their evidence. But in this case the party that was absent did not open his case at all before the presiding officer disposed of the suit itself on merits. As the discretion vested in the Court was wrongly exercised in this case though the order is on merits, it has to be treated as an ex parte order and the petitioner is entitled to file an application under Order 9 Rule 13 C.P.C. seeking to set aside the ex parte order. In such an event, if the trial Court dismissed the application, only C.M.A.. will He under Order 43, Rule l(d) of C.P.C. and the party cannot be directed to file a regular first appeal as was held by the Subordinate Judge, in this case. The order of the Subordinate Judge, cannot be sustained in law as an application under Order 9 Rule 13 can be very much filed in this case in the light of the facts stated above.