GHOTU Vs. KHEM CHAND

JUDGEMENT

(1.) THIS petition is directed against the order of the Additional District Judge, Gurgaon dated 12th January, 1979, whereby order of the trial Court dismissing the application under Order 9 Rule 13 as not maintainable was affirmed. The relevant facts which are not in dispute are as under.

(2.) THE plaintiff Khem Chand filed a suit for possession on 16th October, 1971. After the plaintiff closed his evidence on 3rd September, 1975, the case was fixed for defendant's evidence for 17th October, 1975. On that date, the witnesses of the defendant were not present and the case was adjourned to 4th December, 1975, subject to payment of costs of Rs. 15. On 4th December, 1975, the following order was passed by the Court :-

(3.) LEARNED counsel for the petitioner contended that since the counsel for the defendant pleaded on instructions and the defendant himself was never present, the order passed on 16th December, 1975, would be deemed to have been passed under Order 17 Rule 2 and not under Order 17 Rule 3, Civil Procedure Code, and that being so the application under Order 9 Rule 13, Civil Procedure Code, was maintainable. In support of this contention, he referred to M. Aqualah v. Mohd. Abdul Kareem, A.I.R. 1975 A.P. 201, Rama Rao v. Shantibai, A.I.R. 1977 M.P. 222 and Thammala Suryamma v. The Andhra Pradesh State Electricity Board, A.I.R. 1975 A.P. 90. It has further contended that if the default is covered by both the Rules, i.e. Rules 2 and 3 of Order 17 then it shall be Rule 2 which governs the case. In support of this contention he referred to P. Govinda Menon v. Visalakshi Amna, A.I.R. 1964 Kerala 99, Rashid Shurji Chenai v. The Controller Land Acquisition, A.I.R. 1974 A.P. 273 and MS. Khalsa v. Charanjit Lal, A.I.R. 1976 All. 290.