ELLAMMAL Vs. ARKARUPPAN CHETTI

JUDGEMENT

(1.) The short question is, which is the provision that applies to the facts - Rule 2, or Rule 3 of Order 17, Civil Procedure Code? The lower Court has held that the suit could not be deemed to have been decided ex parte, that the provision applicable therefore is Rule 3 and that the petitioners remedy, if any, would be by way of preferring an appeal against the decree passed. Consequently the application under Order 9, Rule 13, filed upon the footing that the decree was passed ex parte, was rejected. We are clear that the lower Court's order cannot be sustained.

(2.) On the 14 July, the first witness for the defence was examined and at the defendants request the case was adjourned to the 30 July. On that day, two further witnesses on their behalf were examined and the case was again at their request adjourned to the 6 August. On the adjourned date, neither the defendants nor their vakil was present; another Advocate appearing on their vakil's behalf applied for an adjournment on the ground that some witness had not come and that the vakil on the record was ill. The Court refused the adjournment and passed a decree. The question is as already stated, is the decree passed in these circumstances an ex parte decree or not?

(3.) To define the line of division between Rule 2 and Rule 3 of Order 17, may in some cases be difficult, but in this case, the facts do not seem to present much difficulty. The learned Judge's order is not particularly lucid, but the ground of his decision apparently is, that as the adjournment of the 30 July, was granted for the specific purpose of enabling the defendants to examine a certain witness, the provision that applies is Rule 3, No doubt that rule provides that where time has been granted for the performance of an act, such as, causing the attendance of a witness and the party fails to perform that act, in such a case the Court may, notwithstanding such default, proceed to decide the suit on the merits; but that does not mean that where the parties themselves fail to appear, the operation of the more specific provision contained in Rule 2 is excluded. In other words, the proper way of construing Rule 3 would be, that where no default occurring under Rule 2, default occurs under Rule 3, the Court should proceed under the latter provision and dispose of the case on the merits; but if the default consists in non-appearance, it is Rule 2 which deals with such a case specifically, that in terms applies. It is unnecessary to cite authority beyond referring to Pichamma v. Sreeramulu (1917) 34 M.L.J. 24 : I.L.R. 41 Mad. 286 (F.B.).