PUNIA Vs. KALU

JUDGEMENT

(1.) This is the plaintiffs application in revision against an appellate order of the learned Additional Commissioner Jaipur, dated 11.8.56, whereby he ordered the set -ting aside of the ex parte decree given against the defendant -respondents in a suit for restoration of possession of agricultural land which was decreed ex parte by the trial court who on the application of the defendants refused to set aside the ex parte decree by his order dated 27.7.55.

(2.) We have heard the learned counsel appearing for the parties and have examined the record of the case. The facts of the case in brief are that the appellant filed a suit against the respondents under sec. 135 of the Jaipur State Grants Lands Tenures Act, read with sec. 90(2) of the Jaipur Tenancy Act for ejectment of the defendant -respondents and restoration of possession on the land in dispute to the plaintiffs. The trial court, after having framed the necessary issues, directed the plaintiffs to produce their evidence which was duly recorded by the court. On 20.4.54, the plaintiffs finished their evidence and the court directed the defendants to produce their evidence and if they so wanted to have the witnesses summoned through the court On 21 -5 54 which was the next date fixed for hearing summonses of the witnesses did not return duly served and the case was adjourned for hearing to 8.6.54. On this date the parties were present and only Ramsukha, one of the witnesses of the defendants was present, but the evidence was not recorded as the presiding officer was out on tour. The next date for bearing of the case was fixed on 24 6 -54. On this date the parties and their counsels were present. Neither the summonses were returned duly served nor any of the witnesses of the defendants was present. On 27.7.54, the case was not taken up as presiding officer was again on tour. On 24.8.54, the plaintiff with their counsel were present but the defendants were absent and Munshi Abid Ali, the counsel for the defendants who was present stated that he had no instructions from his clients. On this date none of the witnesses of the defendants was present. The learned trial court thereupon ordered that the case be put up on the next day for judgment. The decision in the case was, however not announced upto 30.8.54 for certain reasons On this date the court ordered that the suit be decreed with costs against the defendant. Being aggrieved from this decree, on 20.9.54, Kalya, one of the defendants filed an application before the trial court for setting aside the ex parte decree on the ground that on 24.8.54, when the case was fixed for the evidence of the defendants, he fell ill and could not either appear in person or instruct his lawyer to proceed with the case. In support of this, he filed an affidavit also. It is significant to point out here that this application by one of the defendants Kalya, was made on behalf of himself as well as the remaining defendants. This application was contested by the plaintiffs Their main contention was that the decree was not ex -parte but it was given on merits; and further that there was no sufficient cause for default of the respondents. The trial court framed issues and after recording the evidence of the parties held that the suit was decreed on merits under Order 17, Rule 3, C.P.C. read with Rule 41 of the rules framed under sec. 8 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act Accordingly, the application for setting aside the decree was rejected. Against this order the defendants went in appeal before the learned Additional Commissioner, Jaipur. The learned Additional Commissioner observed that from the nature of the proceedings and the orders given from time to time by the trial court, it was clear that on 24 8 -54, the trial court decreed the suit because the defendants neither appeared in person nor produced any evidence nor was their counsel duly instructed by them to proceed with the case. The learned appellate court also observed that the decree given by the trial court was not on merits within the meaning of Order. 17, Rule 3, C.P.C. read with Rule 41 of the rules framed under sec. 8 of the Act, but it was an ex parte decree under O. 17, R. 2 C.P.C. read with Rule 21 (3) and 35 of the rules framed under the Rajasthan Reve - nue Courts (Procedure and Jurisdiction) Act. As for the setting aside of the ex parte decree, the learned lower appellate court held that there was sufficient cause for the absence of the defendants. Accordingly, he vacated the order of lower court and directed that the ex parte decree be set aside and the defendants be allowed to adduce their evidence and then a fresh decision be given in accordance with the provisions of law.

(3.) The plaintiffs have now come in revision before us. The main contention raised before us is that the suit was decreed on merits under Order 17, Rule 3 C.P.C. and not decreed ex parte under Order 17, Rule 2 C .P. C. The contention of the opposite party is that on the date fixed for hearing of the case , the defendants neither appeared nor produced any evidence as directed by the court and therefore, a decree on merits was given which the trial court was competent to pass. The first point for decision before us is whether the decree was ex parte or on merits. Both the learned counsels produced several rulings of the various High Courts to support their version. of the matter. We have looked into them and the principle which we deduce from them is that Order 17, Rule 3, G. P. C. should not be applied unless the facts admit of the application of some other provisions of C.P.C. If the facts of the case make provi sions of Order 17, Rule 2 applicable the court should act under that rule instead of under Order 17, Rule 3. In AIR 1919 Sindh, this principle was further amplified by observing that when both the conditions laid down in Order 17, Rules 3 and 2 coincide, Order 17, Rule 2 should have preference for the consequences of non -appearance have a natural precedence over the merits. In AIR 1943, Bombay, page 321, the scope of these two rules was examine in detail. It was observed that the scope of Rule 2 is quite distinct from that Rule 3, Rule 3 contemplates a case in which the court has materials before it to proceed to give a decision of the suit. The mere fact of a party making default in the performance of what he was directed to do would not lead to the dismissal of the plaintiffs suit, if he was the party in default or the decreeing of the claim against the defendant if the defendant was the person, who made the default; the words notwithstanding such default in Rule 3 clearly imply that the court is to proceed with the disposal of the suit in spite of the default upon such materials as are before it. Order 17, Rule 2, on the other hand, speaks of the disposal of the suit and includes cases in which there might not be any material before the court to enable it to pronounce a decision on the merits. It is clear, however that the contingency contemplated in Rule 2 may happen in a case which falls within the letter of Rule 3. It may well happen for instance that a plaintiff to whom time has been granted to produce evidence, not only fails to do so, but also fails to appear. In such a case if there are no materials on the record, the appropriate procedure to follow would be that laid down in Rule 2, but if there are materials on the record the court ought to proceed under Rule 3. Even in a case where a special adjournment is granted and the defendants fails to appear in person and his pleader withdraws for want of instructions, it would be a case of double default, and so far as there is default of appearance, the case would fall under order 17 Rule 2. In AIR 1936, Madras, page 625, it was also held that where a case is adjourned and neither defendants nor their vakil having no instructions beyond applying for an adjournment appears on their behalf and a decree is passed, the decree is ex parte as the code contemplates only a pleader duly instructed and able to answer all material questions. In I. L. R. 1953, Rajasthan page 768,* a Division Bench of High Court of Rajasthan, held that even in cases where the court has adjourned the hearing of its own accord, Order 17, Rule 2 empowers the court to proceed under one of the modes prescribed by Order 9, when the party fails to appear on such an adjourned hearing. In I. L. R. 1953, Rajasthan page 1038,** it was also held that Rule 3 contemplates a grant of time on application of parties whether oral or written but if the court itself adjourned the case under O.15, R. 3 (2), C. P. G. for the production of the evidence and if on such adjourned hearing the party is absent, the proper procedure for the court to adopt is to proceed under Order 17, Rule 2 C.P.C.