LALIT CHANDRA DAS Vs. SUSHIL CHANDRA GUHA

JUDGEMENT

(1.) Title Suit No. 97 of 1972 was instituted by the plaintiffs-opposite parties. On the 11th December, 1974, three P. Ws. were examined. On that date, the defendant-petitioners filed an application for local inspection. It was allowed. Subsequently, that application for local inspection was rejected by the learned Munsif. Then the date was fixed for hearing of the suit. On the date fixed, the defendant made an application for adjournment. The prayer was allowed as last chance and the suit fixed on 25th July, 1975, for peremptory hearing. On that date, the plaintiff-opposite parties were present. But the defendants failed to appear. Then the learned Munsif proceeded to deliver the judgment. The suit was decreed and then, the defendant-petitioners put in an application for restoration of the suit according to the provisions of Order 9 Rule 13 of the Code of Civil Procedure. The plaintiff-opposite party raised an objection as to maintainability of the petition under Order 9 Rule 13 of the Code of Civil Procedure. The learned Munsif held that that application was not maintainable. An appeal was preferred. The appellate court took the same view and dismissed the appeal. Hence this revisional application by the defendants.

(2.) Mr. S. P. Roy Chowdhury has raised some important points of law. He has contended that the provisions of Rules 2 and 3 of Order 17 of the Civil Procedure Code have been amended in 1976. It is clear from Section 97 of the amending Act that such amendment is retrospective in operation. Rule 3 of Order 17 shows that if on the date fixed any party is absent or has failed to take necessary steps, then in spite of such default the Court may, (a) proceed to decide the suit forthwith, if the parties are present, and (b) if the parties are or any party is absent, proceed under Rule 2. Rule 2 has also been amended and the explanation added thereto in 1976 shows that when the evidence or a substantial portion of the evidence of any party has been recorded and he has failed to appear on the date fixed, the Court may proceed with the suit as if such party was present. It has, thus, been contended that in any view of the matter, the court should hold that the amendment made to Rules 2 and 3 of Order 17 of the Code is retrospective in operation. Consequently, the provisions of Order 9 Rule 13 of the Code apply. Reference has been made to the Full Bench decisions in show that the words "or make such other order as it thinks fit", appearing in Rule 2 of Order 17, do not empower the Court to dispose of the suit on the merits, but only to grant a further adjournment and if the Court does not propose to adjourn the suit, it should proceed under Order 9 of the Civil Procedure Code and dismiss the suit under Order 9 Rule 8 C. P. C., if the plaintiff does not appear and pass an ex parte decree under Order 9 Rule 6, if the defendant does not appear. It has been further contended that filing of an appeal would be useless formality and the proper remedy was to file an application for restoration, according to the provisions of Order 9 Rule 13, or to invoke the inherent power of the Court envisaged by the provisions of Section 151 of the Code of Civil Procedure. It has, thus, been urged that this Court should hold that the application for restoration filed under Order 9 Rule 13 of the Code of Civil Procedure is maintainable.

(3.) Mr. M. N. Ghosh, appearing on behalf of the opposite party, has joined issue and stated that even after the amendment made in 1976, the view taken by this Court should prevail. Since the defendant-petitioner failed to appear in the Court on the 25th July, 1975, and the evidence of some P. Ws. was already recorded, the Court rightly proceeded to decide the suit on the merits. So, this Court should uphold the decision of the courts below and find that the application under Order 9 Rule 13 is not tenable in law.