HASNA ARA BEGUM Vs. KAUSHIK RANJAN DAS

JUDGEMENT

(1.) Heard Mr. NK Kalita, learned counsel for the petitioner and Mr. P Roy, learned counsel for the opposite party.

(2.) The present petitioner was the defendant in Money Suit No. 140/2006 which was instituted by the sole respondent herein. Plaintiff's suit was for realisation of Rs. 2,60,000/- from the petitioner defendant. Defendant appeared and submitted written statement whereafter the learned Court below framed issues and put the parties to prove their respective cases. Plaintiff adduced evidence by examining witnesses and also producing documents. Defendants stopped appearing w.e.f. 02.02.2009 i.e. the date when plaintiff was adducing his evidence and no witness of the plaintiff was cross-examined by the defendant. After closure of the plaintiff's evidence, learned Court fixed the case for evidence by defendant side. But since 02.02.2009 defendant stopped appearing in the case evidence on her part. At this stage the learned Trial court after perusal of the evidence led by the plaintiff alone, passed his judgment on 07.08.2009 decreeing the suit for Rs. 2,60,000/- along with interest @ 6% per annum from the date of institution of the suit till realisation. At this stage, the defendant appeared before the learned trial court and filed application under Order IX Rule 13 of the Code of Civil Procedure with prayer to set aside the decree dated 07.08.2009. The learned trial court by order dated 22.11.2010 considered the application along with the application for condoning delay of 359 days and thereupon dismissed the same holding that the impugned judgment and decree being an inter party one did not come within the sweep of Order IX Rule 13 of the Code of Civil Procedure. The learned court did not consider the application for condonation of delay rather closed the proceeding on the point of applicability of Order IX Rule 13 of the Code of Civil Procedure. Aggrieved, defendant approached this court by Civil Revision Petition being No. 37/2011 and this Court by order dated 02.02.2011 rejected the same holding that revision petition is not maintainable and appeal under Order XLIII Rule 1 (d) of the Code of Civil Procedure would be the appropriate remedy. It is thereafter the defendant preferred an appeal under Order XLIII Rule 1 (d) of the Code of Civil Procedure before the learned Additional District Judge (FTC) No. 3, Kamrup, Guwahati. The appeal was numbered as Misc. Appeal No. 08/2013. After hearing the parties, the learned first appellate court passed judgment on 04.01.2014 holding that the defendant appeared in the case by filing written statement and subsequently defaulted to appear and so for all intents and purposes, it was an inter party judgment and so Order IX Rule 13 of the Code of Civil Procedure does not have any application in this case. The learned Appellate court, further, held that as the application under Order IX Rule 13 of the Code of Civil Procedure itself was not maintainable, there was no question of allowing the application under Section 5 of the Limitation Act. This judgment and order dated 04.01.2014 has been challenged in this present revision petition by the defendant.

(3.) Mr. NK Kalita, learned counsel for the petitioner submits that defendant initially appeared in the case, filed written statement and contested the suit but he subsequently defaulted in appearing in the court for all intents and purposes for the proceeding conducted against him. Even when the plaintiff's witnesses were examined defendant remained absent and did not cross examine the witnesses. Drawing attention of this court to the provision of Order XVII Rule 2 of the Code of Civil Procedure, the learned counsel for the petitioner would argue that a case would be construed to be decided inter party at absence of any party if the absentee party is deemed present by operation of explanation to Order XVII Rule 2 of the Code of Civil Procedure. Mr. NK Kalita has placed reliance on a judgment of this court in the case of Ramusa Khatoon Mustt. and ors v. Durga Kakati and ors, 2007 1 GauLT 886. In that case also defendant approached this Court challenging a decision given by the first appellate court holding that the proceeding was an inter party one as defendant should be deemed to have been present when the evidence of the plaintiff was recorded. This court while deciding the case considered the provision of Order XVII Rule 2 and its explanation and found that this provision spoke of an absentee party whose evidence was recorded fully or in part. This court found that if after a party leads his evidence substantially and thereafter defaults in appearing in the Court and court decides the case in his absence, in that event such absentee party should be deemed to have been present and in that event it would be an interparty proceeding. But if in case, a party did not lead any evidence at all, in that event mischief of the explanation under Rule 2 of Order XVII would not come into play and so any order or judgment or decree passed by the court under Order IX of the Code of Civil Procedure read with provision of Order XVII Rule 2 thereof would really be an ex-parte judgment. Once it is found that a particular judgment and decree was an ex-parte one, it would be possible to hold that the provision of Order IX Rule 13 would not be applicable thereto.