RAMINENI SURYANARAYANA Vs. STATE

JUDGEMENT

(1.) This revision is directed against the order of the District Munsif, Guntur, dismissing the petition for setting aside an ex parte decree. In a suit for the recovery of a sum of Rs. 2,740.00 said to be the price of the pesticides supplied to the defendant, the defendant had pleaded partial discharge and the only issue raised in the suit is whether the payment pleaded by the defendant is true. The burden of proving that issue was placed rightly on the defendant. In spite of several adjournments no evidence was adduced by the defendant when it was posted for trial. On 3-7-1978 the defendant did not produce any witnesses or any evidence and as noted by the learned Munsif

(2.) In this revision petition it is contended by Mr. B. V. Subbaiah, the learned counsel for the petitioner, that the proceedings taken on 3-7-1978 and the judgment and decree rendered on 4-7-1978 must be treated as an ex parte decree inasmuch as the defendant was not present in person and his counsel has asked for an adjournment and the same having been refused did not further participate in the proceedings. It is true that the defendant was not present in person, but admittedly his counsel was present and sought an adjournment. Presence of the counsel on behalf of the defendant constitutes the presence of the defendant. If, as admitted by the petitioner, his counsel has sought an adjournment of the hearing he effectively represented the defendant on the date when the evidence of P. W. 1 was recorded and the judgment was pronounced. There is nothing on record to show that after the adjournment was refused, the counsel withdrew from the case or resorted no instructions. On the contrary both on that day and even on the next date when the judgment was pronounced, he was present. Order , R. 1 enables the party to enter appearance, file any application or perform any act in person or by his recognised agent or by a pleader except where it is otherwise expressly provided by any law for the time being in force. Hence presence of the partys counsel amounts to presence of party for purposes of Order 17, R. . The presence of the counsel constitutes the presence of the defendant and the proceedings taken in his presence on 3-7-1978 and the judgment rendered on 4-7-1978 cannot be treated as ex parte judgment and a such a petition under Order IX, Rule 13, C. P. C. was rightly held to be not maintainable.

(3.) Mr. Subbayya, the learned counsel for the petitioner, however relied upon certain decisions of this Court to contend that if a party is present through counsel he cannot be deemed to be present for the purpose of proceeding under Order 17, Rule 3, C. P. C. and if the party is not present in person but is only present through counsel he must be deemed to be absent and any proceeding taken in such a situation must be deemed to be ex parte proceeding entitling such party to file an application under Order 9, Rule 13, C. P. C. He first referred to the Full Bench decision of this Court in M. Agiah v. Mohd. Abdul Kareem, AIR 1961 Andh Pra 201 (FB), in which it was held thus :-