HARAMANI MOHAPATRA Vs. ANNAPURNA SAHOO

JUDGEMENT

(1.) PETITIONERS call in question legality of or Jar passed by learned Subordinate Judge, Puri, refusing to accept petitioners' prayer to set aside ex parte decree passed in O.S. No. 25 of 1988 and order passed by learned District Judge, Puri, in Misc. Appeal No. 153 of 1993 affirming the aforesaid order.

(2.) A brief reference to the factual position, which is almost undisputed, is necessary for disposal of this application. Opposite party filed the suit in question for specific performance of contract. Petitioners were impleaded as defendants. A joint written statement was filed by them. On 19 -1 -1990 issues were settled and suit was posted to 28 -3 1990 for fixing date of hearing. Thereafter the matter was adjourned from time to. time and was finally posted for hearing to 20 -4 -1992. On that day, memorandum of appearance was the plaintiff -oppsite party who was present with witnesses. They were examined and certain documents were marked as exhibits. Advocate for the petitioners was present, PW 1 was cross -examined, but thereafter there was no cross -examination of PWs 2 and 3. Learned Subordinate Judge treated the same to have been declined as petitioners' Advocate though present did not participate. It was also concluded that defendant - petitioners did not intend to adduce any evidence. The matter was accordingly closed and on 28 -4 -1992 judgment was delivered showing that the suit was disposed of on contest. On 8 -5 -1992 petitioners filed MJC No. 102 of 1992 purporteldy under Order 9, Rule. 13 of the Code of Civil Procedure, 1908 (in short 'Code') to set aside the judgment and decree dated 28 -4 -1992. The opposite party contested the prayer and challenged maintainability of the case. Learned Subordinate Judge held that the matter is covered under Order 17, Rule 2, of the Code, and therefore, application to set aside the decree in - terms of Order 9, Rule 13 of the Code was not maintainable, The conclusion was affirmed by learned District Judge, Puri.

(3.) AT this juncture it is relevant to refer to various Rules of Orders 9 and 17. Rule 1 of Order 17. deals with power of the Court -to grant time and adjourn hearing. Rule 2 deals with procedure in a case where parties fail to appear on a day fixed. It provides that on a day to which the hearing of the suit is adjourned, if the parties or any one 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 9 or make such other order as it thinks fit. Rule 3 of Order 9 deals with the situation when neither party appears. It is provided therein that when neither party appears when the suit is called on for hearing the Court may order that the suit be dismissed. Rule 6 of Order 9 deals with procedure when only plaintiff appears and Rule 8 thereof deals with the procedure when only defendant appears. Explanation to Rule 2 of Order 17 provides that where the evidence or a 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. According to learned counsel for the petitioner, the expression 'any party'' appearing in the Explanation covers both the plaintiff and defendant and, therefore, the Court was obliged to proceed with the case as if the defendants (the present petitioners) were present. The submission is without any basis. Use of the expression 'such party' in the Explanation makes it abundantly clear that it has application where evidence of either the plaintiff of the defendant has already been recorded, and 'such party' meaning th3 party whose evidence has been recorded fails to appear on the day to which the suit is adjourned Courts below have proceeded on the basis that the case at hand is. covered ay Rule 3 of Order 17. This provision has application where any party to a suit to whom time has been granted fails to produce his evidence, or to 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 in such a case the Court may, notwithstanding such default, if the parties are present, proceed to decide the suit forthwith, or if the parties are, or any of them is absent proceed under Rule 2 The case at hand does not fall to that category.