R.P. Bros Through Its Proprietor ... vs Mr. Fakhruddin Siraj Topiwala
2017 Latest Caselaw 3690 Bom

                                                WRIT PETITION 17138 OF 2017.docx




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION
                   WRIT PETITION (L) NO. 17138 OF 2017



R. P. Bros through its Proprietor
Mr. Rashmikant Chanulal Kuvadia                            ..Petitioner
             Vs.
Mr. Fakhruddin Siraj Topiwala                              ..Respondent


Mr. Sanjay Jain a/w Mr. R. B. Singhvi, Mr. Amar Datta, Ms.
Rachna Loonia i/b LEX Services, for the Petitioner.
Ms.Yasmin E. Tavaria i/b Mr. D. A. Barot, for the Respondent.


                             CORAM :- B. P. COLABAWALLA, J.

DATE :- JUNE 28, 2017.

ORAL JUDGMENT: [ Per B. P. COLABAWALLA, J. ]

1. Rule. Respondent waives service. By consent, rule

made returnable forthwith and heard finally.

2. This Writ Petition has been filed under Article 227 of

the Constitution of India seeking to quash and set aside the

eviction order dated 2nd May, 2015 passed in R. A. E. Suit No.1202

/1942 of 2011 as well as the order passed in M. A. R. J. I. No.8 of

Aswale 1/35

WRIT PETITION 17138 OF 2017.docx

2016 dated 12th August, 2016 as well as the Appellate Court's

order dated 29th April, 2017 (wrongly mentioned as 29th April,

2016 in the prayer clause). For the sake of convenience we shall

refer to the parties as they were arrayed in Trial Court.

3. The Plaintiff (the Respondent herein) had filed R. A. E.

Suit No.1202/1942 of 2011 against the Defendant (the Petitioner

herein) for recovery of possession of a Godown on the Ground

Floor of Fakhri Manzil at 84, Sarang Street, Mumbai-400 003

(hereinafter referred to as the "suit premises").

4. After the service of the summons, the Defendant

appeared in the Suit and also filed his Written Statement.

Thereafter, an application was made for depositing arrears of rent

in Court by the Defendant, which was allowed by the Trial Court on

2nd February, 2013. Pursuant to this order, the Defendant

deposited the rent up to March, 2013. From the Roznama it

appears that thereafter the matter was adjourned quite a few

times on the ground of settlement. On many occasions, the

advocate for the Defendant as well as the Defendant were present

before the Court when the matter was adjourned. In any event to

explore settlement, the parties were referred to mediation on 1st

Aswale 2/35

WRIT PETITION 17138 OF 2017.docx

April, 2014. However, the mediation failed and a report to that

effect was filed before the Trial Court on 10th April, 2014. The

report states that the Defendant remained absent during the

mediation.

5. Be that as it may, according to the Defendant, on 16th

October, 2014 a settlement was arrived at between the Plaintiff

and the Defendant for an amount of Rs.95,220/-, on the payment

of which, according to the Defendant, the Plaintiff agreed to

withdraw the Suit. This amount of Rs.95,220/- has been received

by the Plaintiff and which is not in dispute even before me. It is in

these circumstances that thereafter it is the case of the Defendant

that he instructed his advocate not to appear in the matter as the

same was already settled.

6. Despite these instructions, from the Roznama it

appears that the Defendant's advocate appeared in the matter on

18th October, 2014; 20th January, 2015 and 21st February, 2015.

Thereafter, the Defendant and his advocate were both absent on

20th March, 2015 and all the dates thereafter, till the passing of

the decree. According to the Defendant, despite the settlement, the

Aswale 3/35

WRIT PETITION 17138 OF 2017.docx

Plaintiff did not withdraw the Suit and proceeded with the same.

The Roznama indicates that the Plaintiff filed his affidavit of

evidence before Trial Court on 2nd September, 2014. Thereafter,

on 6th December, 2014 the documents produced by the Plaintiff

were marked as exhibits and the matter was adjourned to 20th

January, 2015 for cross- examination of the Plaintiff. On 20th

January, 2015 the holding advocate for the Defendant was

present before the Trial Court and requested for time for cross

examination of PW-1. The matter was therefore stood over to 21st

February, 2015. On 21st February, 2015 also the Defendant's

advocate was present when by consent of both advocates, the

matter was further adjourned for cross examination on 20th

March, 2015. Thereafter, on the next date, namely 20th March,

2015 the Plaintiff was present even though the Defendant and his

advocate were absent. Accordingly, the Court passed a "no cross"

order against the Defendant. The evidence of the Plaintiff was

accordingly closed. It was thereafter adjourned for the Defendant's

evidence on 27th March, 2015. On the said date also none

appeared for the Defendant. Accordingly, the Court ordered the

Defendant's evidence also as closed and posted the matter for

arguments on 10th April, 2015. Thereafter, the matter was argued

Aswale 4/35

WRIT PETITION 17138 OF 2017.docx

when the Defendant did not remain present and ultimately a

judgment and decree dated 2nd May, 2015 came to be passed by

the Trial Court. This judgment and decree evicted the Defendant

from the Suit premises on the ground of permanent additions and

alterations, namely, construction of a bathroom inside the

premises. All the other grounds on which the Suit was filed were

answered against the Plaintiff.

7. Thereafter, an Execution Application was filed on

behalf of the Plaintiff which was served on the Defendant on 7th

December, 2015. It is the case of the Defendant that it is for the

first time on 7th December, 2015 that they came to know of the ex-

parte decree being passed against them. They, therefore, obtained

certified copies of the record and on 12th January, 2016 filed an

application under Order IX Rule 13 of the Code of Civil Procedure,

1908 (for short the "C.P.C.") to set aside the ex-parte decree.

8. This application was heard by the Trial Court, and by

its order dated 12th August, 2016 the Trial Court rejected the

application. This application was rejected primarily on two

grounds. Firstly, the Trial Court held that the judgment and

Aswale 5/35

WRIT PETITION 17138 OF 2017.docx

decree passed by it on 2nd May, 2015 was not under Order IX of

the C.P.C. but was a judgment on merits, and therefore, no

application under Order IX Rule 13 could lie for setting aside the

decree. The Trial Court therefore held that it cannot be said that

the decree was ex-parte. Over and above this, the Trial Court held

that no sufficient cause was made out for condoning the delay.

The reasoning of the Trial Court with reference to condonation of

delay is set out in paragraph 11 of its order.

9. Being aggrieved by this order, the Defendant

approached the Appellate Bench of the Small Causes Court. The

Appellate Bench also, after hearing the Defendant and the

Plaintiff, confirmed the order passed by the Trial Court and

dismissed the Appeal. It is in these circumstances that the

Defendant is before me in my writ jurisdiction assailing the orders

passed by the Courts below.

10. In this factual backdrop Mr. Jain, learned counsel

appearing on behalf of the Defendant (Petitioner herein),

submitted that the Trial Court as well as the Appeal Court had

gone completely wrong in dismissing the application filed by the

Aswale 6/35

WRIT PETITION 17138 OF 2017.docx

Defendant under Order IX Rule 13. Firstly, he submitted that on

the ground of maintainability of the application under Order IX

Rule 13, the Courts below were completely incorrect in coming to a

conclusion that because the Defendant had appeared and filed a

Written Statement and the issues were framed, it could not be said

that the decision of the Suit was ex-parte. To substantiate this

contention, the Appellate Court had relied upon the judgment of

this Court in the case of Himachal Pradesh Co-operative Marketing

and Development Federation Ltd v/s M/s MAFCO Ltd, Pune.1 He

submitted that this understanding of the law by the Courts below

was totally misconceived and contrary to a catena of decisions not

only of the Supreme Court but also of this Court. In support of this

proposition, Mr. Jain relied upon the following decisions:-

(i) Prakash Chander Manchanda and Another v/s Janki Manchanda;2

(ii) B. Janakiramaiah Chetty v/s A. K. Parthasarthi and Others;3

(iii) Trimurthy Packing Paper and Another v/s Corporation Bank and Others;4

(iv) M/s Videocon International Ltd v/s M/s Video

1 2000 (2) Mh. L. J. 317 2 (1986) 4 SCC 699.

3 (2003) 5 SCC 641 4 Appeal From Order No.75 of 2007 decided on 7th August, 2007 : 2007 (6) Mh LJ 537

Aswale 7/35

WRIT PETITION 17138 OF 2017.docx

Links and Others.5

11. In fact, relying upon the last decision in the case of

M/s Videocon International Ltd, Mr. Jain submitted that this

Court has considered the decision of this Court in Himachal

Pradesh Co-operative Marketing and Development Federation Ltd.1

and thereafter come to a categorical finding that in view of the

earlier Supreme Court decisions, the decision of this Court in

Himachal Pradesh Co-operative Marketing and Development

Federation Ltd.1 is not good law. He, therefore, submitted that the

Courts below had completely gone wrong in law in coming to a

conclusion that the Defendant's application under Order IX Rule

13 was not maintainable as the decree was passed on merits.

12. In this regard, Mr. Jain also brought to my attention

the provisions of Order XVII Rule 2 which provides for a

procedure to be followed if the parties or any of them fail to appear

on the date fixed. He submitted that Order XVII Rule 2 stipulates

that where on any date to which hearing of the Suit is adjourned,

the parties or any of them fail to appear, the Court may proceed to

dispose of the Suit in one of the modes directed in that behalf by

5 2006 (5) Mh.L. J. 425 1 2000 (2) Mh. L. J. 317

Aswale 8/35

WRIT PETITION 17138 OF 2017.docx

Order IX, or make such other order as it thinks fit. The

Explanation to Rule 2 states that where the evidence or

substantial portion of the evidence of any party has 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. He submitted that in the

facts of the present case, admittedly the Defendant did not appear

on the date when the hearing of the Suit was adjourned. Another

factor was that the Defendant had not led any evidence. This

being the case, Mr. Jain submitted that as per Order XVII Rule 2,

the Suit could have been disposed of and in fact was disposed of in

one of the modes directed in that behalf by Order IX. If that be the

case, then, the application of the Defendant to set aside the ex-

parte decree under Order IX Rule 13 was maintainable.

13. He also placed reliance on Order XVII Rule 3 which

stipulates that 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 for further

progress of the Suit, for which time has been allowed, the Court

may notwithstanding such default (a) if the parties are present,

Aswale 9/35

WRIT PETITION 17138 OF 2017.docx

proceed to decide the suit forthwith; or (b) if the parties are, or

any of them is, absent, proceed under rule 2. He submitted that on

a conjoint reading of Order XVII Rules 2 and 3 what is clear is that

where the Defendant does not appear and has not led any evidence

then the suit can be disposed of only in one of the modes as

directed by Order IX. If this be the case, then, the Defendant's

application under Order IX Rule 13 for setting aside the decree

was certainly maintainable, was the submission of Mr. Jain. He,

therefore, submitted that the lower Courts were totally in error in

coming to a finding that the application filed by the Defendant

under Order IX Rule 13 was not maintainable as it was a judgment

on merits.

14. As far as sufficient cause and condonation of delay is

concerned, Mr. Jain submitted that the ex-parte decree came to be

passed on 2nd May, 2015. However, the Defendant became aware

of this ex-parte decree only on 7th December, 2015 when he was

served with the Execution Application. Thereafter, the Defendant

obtained certified copies of the record and immediately on 12th

January, 2016 filed an application for setting aside the ex-parte

decree. He submitted that it is nobody's case that the Defendant

Aswale 10/35

WRIT PETITION 17138 OF 2017.docx

was aware of the passing of the ex-parte decree until the

Execution Application was served on the Defendant. If this be the

case, then the delay in filing the application under Order IX Rule

13 was adequately explained, was the submission. Mr. Jain

submitted that the Courts below have proceeded on the basis that

the explanation given by the Defendant that there was a

settlement arrived at between the Plaintiff and Defendant on 16th

October, 2014, was unbelievable and therefore came to the finding

that no sufficient cause was shown in the present case. He

submitted that as far as the settlement is concerned, that was the

ground for him not appearing before the Trial Court before the

decree was passed. In the facts of the present case, the Defendant

had to explain the delay that took place after the decree was

passed. According to Mr. Jain, this delay has been satisfactorily

explained in view of the fact that the Defendant became aware of

the decree only on 7th December, 2015 when he was served with

the Execution Application. It was therefore the submission of Mr.

Jain that undue importance was put on the explanation given by

the Defendant (and which was disbelieved) for not appearing

before the Trial Court before the decree was passed. In the facts

of the present case, Defendant had to explain the delay that took

Aswale 11/35

WRIT PETITION 17138 OF 2017.docx

place after the decree was passed. According to Mr. Jain, this

delay has been satisfactorily explained in view of the fact that the

Defendant became aware of the decree only on 7th December, 2015

when he was served with the Execution Application. For all these

reasons, Mr. Jain submitted that the Writ Petition be allowed and

the impugned order be set aside and the matter be remanded back

to the Trial Court from the stage where the Defendant be allowed

to cross-examine the witness of the Plaintiff.

15. On the other hand, Ms. Tavaria, the learned counsel

appearing on behalf of the Plaintiff, submitted that absolutely no

interference is called for in the impugned orders. As far as the

proposition of law as put forth by Mr. Jain is concerned, Ms.

Tavaria conceded that Mr. Jain is correct in his submission and

the impugned orders cannot be sustained to the extent they hold

that the application of the Defendant under Order IX Rule 13 was

not maintainable. She, however, was at pains to point out that

even if this be the case, no interference is required with the

impugned orders because the Courts below have come to a

conclusion that the Defendant has not sufficiently explained the

delay in filing the application under Order IX Rule 13. Ms. Taveria

Aswale 12/35

WRIT PETITION 17138 OF 2017.docx

submitted that the decree was passed as far back as on 2nd May,

2015 and the application to set aside the same was filed almost

nine months later on 12th January, 2016. She submitted that the

Courts below have correctly disbelieved the explanation given by

the Defendant for not appearing before the Trial Court before

passing of the decree. She submitted that there was no

settlement ever arrived at between the Plaintiff and the

Defendant. The Plaintiff has not given any undertaking to the

Defendant that he will be withdrawing the suit. The amount of Rs.

95,220/- that was paid by the Defendant to the Plaintiff was

actually towards the arrears of rent and not towards any full and

final settlement as was sought to be contended by the Defendant.

She, therefore, submitted that the Courts below correctly

disbelieved this story and thereafter proceeded to dismiss the

application filed by the Defendant under Order IX Rule 13. For all

the aforesaid reasons, Ms Tavaria submitted that no interference

is called for in the impugned orders and this Writ Petition be

dismissed.

16. In the alternative, Ms Tavaria submitted that looking

to the facts of the present case, if I was inclined to give one more

Aswale 13/35

WRIT PETITION 17138 OF 2017.docx

opportunity to the Defendant, then, the same should be done on

certain terms and conditions, the first being that exemplary costs

be awarded against the Defendant and secondly, the Defendant be

ordered to deposit the rent along with certain other charges from

October 2014 to June 2017 which admittedly have not been paid

by the Defendant.

17. I have heard the learned counsel for the parties at

length and have perused the papers and proceedings in this Writ

Petition. On the first issue, namely, whether the application of the

Defendant was maintainable under Order IX Rule 13 is concerned,

I find considerable force in the arguments canvassed by Mr. Jain.

Order XVII Rule 2 clearly stipulates that where, on any day to

which the hearing of the suit is adjourned, the parties or any of

them fail to appear, the Court may proceed to dispose of the suit in

one of the modes directed in that behalf by Order IX or make such

other order as it thinks fit. Explanation to the said Rule stipulates

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

Aswale 14/35

WRIT PETITION 17138 OF 2017.docx

party were present. Order XVII Rule 3 provides for 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 for further progress of the suit,

in such an event, the Court may, notwithstanding such default: (a)

if the parties are present, proceed to decide the suit forthwith; or

(b) if the parties are, or any of them is, absent, proceed under rule

2 of Order XVII.

18. In the facts of the present case, it is not in dispute that

the Defendant did not appear before the Court on the date the

hearing of the suit was adjourned. It is also not in dispute that the

Defendant did not lead any evidence and in fact did not enter the

witness box. The Defendant had only filed its Written Statement.

This being the case, under Order XVII Rule 2 read with Rule 3(b)

of the C.P.C., the suit could have been disposed of in any one of the

modes as directed in that behalf by Order IX. Consequently to set

aside any such a decree, an application under Order IX Rule 13

was certainly maintainable. In this view that I have taken I am

supported by several decisions, not only of the Supreme Court but

also of our Court. The first decision on this issue is the decision of

Aswale 15/35

WRIT PETITION 17138 OF 2017.docx

the Supreme Court in the case of Prakash Chander Manchanda and

Another v/s Janki Manchanda.2 In this case, a suit was filed

against the Appellant in the Court of Sub-Judge-First Class, Delhi.

When the matter was fixed for evidence of the Defendant as the

Plaintiff's evidence was over, the order-sheet showed that the

Defendant's witness was not present and at the request of the

counsel for the Defendant the case was adjourned to 7th May,

1985. Thereafter, it was further adjourned to 30th October, 1985

for the evidence of the Defendant. On that date, the counsel for

the Plaintiff was present but no one was present for the Defendant.

Since none was present for the Defendant, the Court passed an

order that the evidence of the Defendant was closed and posted

the matter for arguments. On the date when the arguments were

to be heard, once again none appeared on behalf of the Defendant.

Therefore a decree came to be passed against the Defendant. It is

only after the decree was passed that the Defendant claimed that

they came to know about the decree and thereafter filed the

application under Order IX Rule 13 for setting the ex-parte decree.

This was dismissed by the Trial Court holding that the case was

not disposed of in accordance with Order XVII Rule 2 but in

accordance with Order XVII Rule 3, and therefore, the application

2 (1986) 4 SCC 699.

Aswale 16/35

WRIT PETITION 17138 OF 2017.docx

under Order IX Rule 13 was not maintainable. It is in this factual

matrix that the Supreme Court examined the relevant provisions

and held as under:-

"6. In some decisions, the High Courts have gone to the extent of saying that even if the trial court disposes of the matter as if it was disposing it on merits under Order 17 Rule 3 still if the party against whom the decision was pronounced was absent it could not be treated to be a disposal in accordance with Order 17 Rule 3 and provisions of Order 9 will be available to such a party either for restoration or for setting aside an ex parte decree. Learned counsel placed before us a number of decisions of various High Courts on this aspect of the matter. But in our opinion in view of the amendment to these two rules which have been made by 1976 amendment of the Code of Civil Procedure it is not disputed that to the facts of this case, Code of Civil Procedure as amended will be applicable and therefore it is not necessary for us to go into that question. Order 17 Rule 2 and Rule 3 as they now stand reads:

"Order 17, Rule 2. Procedure if parties fail to appear on day fixed.--Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail 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. Explanation.--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.

Order 17 Rule 3. Court may proceed notwithstanding either party fails to produce evidence, etc.--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, the Court may, notwithstanding such default,--

(a) if the parties are present, proceed to decide the suit forthwith, or

Aswale 17/35

WRIT PETITION 17138 OF 2017.docx

(b) if the parties are, or any of them is, absent proceed under Rule 2."

It is clear that in cases where a party is absent the only course as mentioned in Order 17 Rule 3(b) is to proceed under Rule 2. It is therefore clear that in absence of the defendant, the court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as it now stands also clearly lays down that if any one of the parties fails to appear, the court has to proceed to dispose of the suit in one of the modes directed under Order 9. The explanation to Rule 2 gives a discretion to the court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure. It is therefore clear that after this amendment in Order 17 Rules 2 and 3 of the Code of Civil Procedure there remains no doubt and therefore there is no possibility of any controversy. In this view of the matter it is clear that when in the present case on October 30, 1985 the case was called nobody was present for the defendant. It is also clear that till that date the plaintiff's evidence has been recorded but no evidence for defendant was recorded. The defendant was only to begin on this date or an earlier date when the case was adjourned. It is therefore clear that up to the date i.e. October 30, 1985 when the trial court closed the case of defendant there was no evidence on record on behalf of the defendant. In this view of the matter therefore the explanation to Order 17 Rule 2 was not applicable at all. Apparently when the defendant was absent Order 17 Rule 2 only permitted the court to proceed to dispose of the matter in any one of the modes provided under Order 9.

7. It is also clear that Order 17 Rule 3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of defendant was closed nobody appeared for the defendant. In this view of the matter it could not be disputed that the court when proceeded to dispose of the suit on merits had committed an error. Unfortunately even on the review application, the learned trial court went on in the controversy

Aswale 18/35

WRIT PETITION 17138 OF 2017.docx

about Order 17 Rules 2 and 3 which existed before the amendment and rejected the review application and on appeal, the High Court also unfortunately dismissed the appeal in limine by one word.

8. The learned counsel for the respondent attempted to contend that in this view of law as it now stands an application under Order 9 Rule 13 will be maintainable. However it was suggested that there was also an objection of limitation about the acceptance of that application. It is apparent that the learned trial court has not considered the application on merits but has only rejected it as not maintainable and that order has been maintained. This objection of the learned counsel for the respondent is not necessary for us to go into at this stage as in view of the law discussed above, the order rejecting the application as not maintainable, has to be set aside and it will be open to the learned trial court to consider the application under Order 9 Rule 13 and dispose it of in accordance with that law and while so doing, it may even examine the objections that may be raised by the respondent."

(emphasis supplied)

19. What can be seen from the aforesaid decision is that if

on the date fixed, one of the parties remains absent and for that

party, no evidence has been examined up to that date, the Court

has no option but to proceed to dispose of the matter in accordance

with Order XVII Rule 2 in any one of the modes prescribed under

Order IX of the CPC. If that be the case, then, to set aside the

decree passed, an application under Order IX Rule 13 would

certainly be maintainable, was the finding of the Supreme Court.

Aswale 19/35

WRIT PETITION 17138 OF 2017.docx

20. A similar view has been again taken by the Supreme

Court in the case of B. Janakiramaiah Chetty v/s A. K. Parthasarthi

and Others.3 Paragraphs 6 to 10 of this decision are relevant for

our purposes and read thus:-

"6. Since the controversy revolves round Order 17 Rule 2 including its Explanation, the same is quoted below, along with Rule 3 thereof, since it has relevance:

"2. Procedure if parties fail to appear on day fixed.-- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.

Explanation.--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.

3. Court may proceed notwithstanding either party fails to produce evidence, etc.--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, the court may, notwithstanding such default,--

(a) if the parties are present, proceed to decide the suit forthwith; or

(b) if the parties are, or any of them is, absent, proceed under Rule 2."

7. In order to determine whether the remedy under Order 9 is lost or not what is necessary to be seen is whether in the first instance the Court had resorted to the Explanation of Rule 2.

8. The Explanation permits the court in its discretion to proceed with a case where substantial portion of evidence of any party

3 (2003) 5 SCC 641

Aswale 20/35

WRIT PETITION 17138 OF 2017.docx

has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned. As the provision itself shows, discretionary power given to the court is to be exercised in a given circumstance. For application of the provision, the court has to satisfy itself that: (a) substantial portion of the evidence of any party has been already recorded;

(b) such party has failed to appear on any day; and (c) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the court to adopt any of the modes provided in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The Explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the court to act under the specified circumstance i.e. where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the court may in its discretion deem as if such party was present. Under Order 9 Rule 3 the court may make an order directing that the suit be dismissed when neither party appears when the suit is called on for hearing. There are other provisions for dismissal of the suit contained in Rules 2, 6 and 8. We are primarily concerned with a situation covered by Rule 6. The crucial words in the Explanation are "proceed with the case". Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the court or not.

9. In Rule 2, the expression used is "make such order as it thinks fit", as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to the court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the court to

Aswale 21/35

WRIT PETITION 17138 OF 2017.docx

decide the suit forthwith. The basic distinction between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present.

10. The crucial expression in the Explanation is "where the evidence or a substantial portion of the evidence of a party". There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The court while acting under the Explanation may proceed with the case if that prima facie is the position. The court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision."

21. Over and above these two decisions of the Supreme

Court, there are two decisions of our Court as well taking the same

view. The first decision is in the case of Trimurthy Packing Paper

and Another v/s Corporation Bank and Others.4 In this case also

original Defendant Nos. 1 and 2 filed M. A. R. J. I. No.158 of 1994

for setting aside the ex-parte decree passed by the Civil Judge,

4 Appeal From Order No.75 of 2007 decided on 7th August, 2007 : 2007 (6) Mh LJ 537

Aswale 22/35

WRIT PETITION 17138 OF 2017.docx

Senior Division, Aurangabad. It was the case of the Defendant

that the suit was posted for evidence on 8th November, 1993 but

on account of the fact that their advocate was not well, an

adjournment application was filed. The Court after obtaining reply

of the other side, rejected the said application of the Defendant.

The suit was thereafter posted on 10th January, 1994 for

arguments when again the Defendant did not appear. The suit was

accordingly decreed ex-parte and the Defendant came to know of

the same only subsequently when they met their advocate and it

was thereafter that they filed the application for setting aside the

ex-parte decree. In these facts, this Court, after examining Order

XVII Rules 2 and 3 and relying upon the decision of the Supreme

Court in the case of Prakash Chander Manchanda and Another v/s

Janki Manchanda,2 held as follows:-

"12. I have given my anxious consideration to the rival contentions. In the instant case, it is to be borne in mind that though the written statement was filed on behalf of the appellants/defendants on account of the fact that they had remained absent, no evidence was adduced on their behalf as also no arguments were advanced. The case is, therefore, squarely covered by the judgment of the Apex Court cited supra.

The Apex Court has in terms held that in such case the Court can dispose of the suit by resorting to any of the modes prescribed in Order 9 of the Civil Procedure Code by taking recourse to Order 17(2) of the Civil Procedure Code. If the said suit is disposed of under any of the modes prescribed under Order 9, the Apex Court in the said circumstance has held that an application under

2 (1986) 4 SCC 699.

Aswale 23/35

WRIT PETITION 17138 OF 2017.docx

Order 9, Rule 13 of the Civil Procedure Code would be maintainable for setting aside the said ex parte decree. In the teeth of the judgment of the Apex Court, in my view, the order of the trial Court rejecting the said application cannot be sustained. The trial Court has proceeded on a basis that the appellants/defendants were not diligent in their approach. The trial Court came to a conclusion that the said decree was not an ex parte decree only on account of the fact that a written statement was filed on behalf of the appellants/defendants. The fact that the suit has been disposed of by resorting to the modes prescribed under Order 9 of the Civil Procedure Code has not been considered by the trial Court.

13. Insofar as the two judgments of the learned Single Judges of this Court cited supra on behalf of the respondent No. 1 bank are concerned, it appears that in the judgment reported in 2000 (2) Mh. L.J. 317, the judgment of the Apex Court was not cited before the learned Single Judge. In the said circumstances, the learned Single Judge probably came to a conclusion that since written statement was filed on behalf of the applicant therein, the decree could not be said to be an ex parte decree. The said judgment with respect cannot be relied upon in view of the Apex Court judgment cited supra."

(emphasis supplied)

22. What is important to note is that this Court has

considered the judgment of this Court in the case of Himachal

Pradesh Co-operative Marketing and Development Federation Ltd.1

and thereafter come to a conclusion that the learned Single Judge

in that matter probably came to the conclusion that she did,

because the judgment of the Apex Court in the case of Prakash

1 2000 (2) Mh. L. J. 317

Aswale 24/35

WRIT PETITION 17138 OF 2017.docx

Chander Manchanda and Another v/s Janki Manchanda2 was not

brought to her notice.

23. In fact another Single Judge of this Court (Khanwilkar

J as he then was) in the case of M/s Videocon International Ltd v/s

M/s Video Links and Others.5 has categorically held that the

decision of this Court in Himachal Pradesh Co-operative Marketing

and Development Federation Ltd.1, is not good law. The Relevant

portion of this decision reads thus:-

"9. Advocate Soni, appearing for the Applicant, however, submits that the fact situation in the present case is similar to one in the case of Himachal Pradesh Marketing and Development Federation Ltd. (supra). In the present case also, it is contended that, the respondents-defendants had filed written statement whereafter issues were framed and that the respondents also instituted counterclaim. However, in my opinion, this will make no difference to the legal proposition expounded in the two Apex Court decisions which are pressed into service by the respondents. Mr. Soni had placed emphasis on observation in para 10 of this reported case. In my opinion, having regard to the legal position expounded in the abovenoted two Supreme Court decisions, the view taken by the learned single Judge in the case of Himachal Pradesh Co-operative (supra) is not a good law. It is noticed that the decision of the Apex Court in the case of Prakash Chander (supra) was not brought to the notice of the learned Judge. In fact no decision was relied before the learned Judge.

10. Be that as it may, I have no hesitation in upholding the view taken by the lower Appellate Court that the decree passed by the

2 (1986) 4 SCC 699.

5 2006 (5) Mh.L. J. 425
1 2000 (2) Mh. L. J. 317

Aswale                                       25/35





                                                   WRIT PETITION 17138 OF 2017.docx

Trial Court in this case is referable to the provisions of Order 17, Rule 2, against such decree remedy under Order 9, Rule 13 is and was available to the defendants. It may be noted that there is no challenge to the finding reached by the lower Appellate Court on the factum of sufficient cause made out by the respondents for setting aside the ex-parte decree.

(emphasis supplied)

24. Looking to the law as laid down by the Supreme Court

and thereafter followed by our Court, what becomes clear is that

where the Defendant has filed his Written Statement but remains

absent on the date when the suit is called out for hearing and

where the Defendant has not led any evidence, the suit can be

disposed of (as per Order XVII Rule 2) only in any of the modes as

prescribed under Order IX. Once the suit is disposed of under

Order IX and the Defendant had not appeared at the hearing of the

suit and a decree is passed in his absence, then, an application to

set aside that decree is certainly maintainable under Order IX

Rule 13. This being the clear enunciation of the law, I find that the

Courts below were totally in error in coming to the conclusion that

merely because the Defendant was served with the writ of

summons and filed his Written Statement and thereafter did not

appear, the decree passed could not be said to be one as being ex-

parte.

Aswale 26/35

WRIT PETITION 17138 OF 2017.docx

25. This now leaves me to deal with the question as to

whether sufficient cause has been made out for condoning the

delay in setting aside the ex-parte decree. On this aspect, it was

the Defendant's case that he learnt of the passing of the ex-parte

decree only on 7th December, 2015 when he was served with the

Execution Application. Thereafter, he filed the Application under

Order IX Rule 13 immediately on 12th January, 2016 and

therefore, the delay in filing the aforesaid application was

sufficiently and adequately explained. As far as not remaining

present before the Trial Court on the day when the suit was set

down hearing is concerned, it was the case of the Defendant that

since he was of the belief that the suit was settled, he instructed

his advocate not to appear in the matter. On the aspect of

settlement, prima facie I find that this story is not believable. This

is for the simple reason that even after 16th October, 2014 (the

date on which the alleged settlement was arrived at) the advocate

for the Defendant appeared in the matter and asked for time to

cross examine PW-1. If in fact a settlement was arrived at, it would

have certainly been brought to the notice of the Trial Court. This

was admittedly never done. Therefore, this story of a settlement

Aswale 27/35

WRIT PETITION 17138 OF 2017.docx

being arrived at between the Plaintiff and the Defendant, at least

prima facie, does not appear to be believable. However, having

said that, this was the explanation given by the Defendant for not

remaining present on the date when the suit was called out for

hearing. The events of this matter clearly show that the

Defendant through his advocate appeared before the Trial Court

as late as on 21st February, 2015 when the matter was adjourned

by consent of parties to 20th March, 2015. It was adjourned for

the purposes of cross examination of PW-1. On the next date,

namely, 20th March, 2015 the Defendant and his advocate were

absent and therefore "no cross" order against the Defendant was

passed and the Plaintiff's evidence was closed. It was thereafter

adjourned to 27th March, 2015 for the purposes of Defendant's

evidence. On this date also the Defendant and his advocate were

absent and therefore the Court ordered the Defendant's evidence

also as closed and posted the matter for arguments. What these

sequence of events show is that the Defendant's advocate did not

remain present on 2 dates before the suit was set down for

arguments. I find that the courts below have given a lot of

importance to this aspect whilst rejecting the application of the

Defendant under Order IX Rule 13 to set aside the ex-parte decree.

Aswale 28/35

WRIT PETITION 17138 OF 2017.docx

In the peculiar facts of this case, and considering that the decree

evicts the Defendant and has serious consequences, the courts

below could have taken a more liberal approach and saddled the

Defendant with costs to compensate the inconvenience caused to

the Plaintiff. The passing of an eviction decree has serious

consequences and the courts should endeavor that it should be

passed on merits rather than in the absence of either party.

However, this does not mean that where the party is deliberately

staying away and not appearing to protract the litigation, the

courts should continue to show indulgence indefinitely. This would

depend on the facts and circumstances of each case and no

straight-jacket formula can be prescribed for this purpose. In the

peculiar facts of the present case, I find that the Defendant had not

appeared only on 2 dates before the suit was set down for

arguments. This being the case, and considering that the decree

passed had serious consequences of evicting the Defendant from

the suit premises without being heard, the courts below ought to

have set aside the ex-parte decree by compensating the Plaintiff

with heavy costs.

26. As far as the delay is concerned, i.e. from the date of

Aswale 29/35

WRIT PETITION 17138 OF 2017.docx

passing of the ex-parte decree (2nd May, 2015) till the application

for setting aside the same under Order IX 9 Rule 13 (12th January,

2016), it is the Defendant's case and which is really

uncontroverted that the Defendant was unaware of the decree

being passed until he was served with the Execution Application

on 7th December, 2015. Ms. Tavaria was unable to show me

anything on record to even remotely indicate that before the

Execution Application was served upon the Defendant he was

aware of the decree being passed. I find the moment the

Defendant became aware of the decree, he acted promptly and

filed the application for setting aside the ex-parte decree.

27. I must mention here that Ms. Tavaria, appearing for

the Plaintiff, submitted that the reason for the advocate for the

Defendant not appearing before the Trial Court when the suit was

set down for arguments, was not because any settlement was

arrived at between the parties but because the Defendant had not

paid his advocate's fees. According to Ms Tavaria, this was clear

from the letter dated 14th February, 2013 addressed by the

advocate for the Defendant to the Defendant. I have gone through

the aforesaid letter dated 14th February, 2013. This letter

Aswale 30/35

WRIT PETITION 17138 OF 2017.docx

addressed to the Defendant informs him that he has to deposit the

arrears of rent in the Small Causes Court as per the order passed

by it and also to pay the balance amount towards the advocate's

fees. This letter does not in any way reflect that if the fees of the

advocate are not paid, the advocate will not appear. In fact, as the

Roznama indicates, much after the writing of this letter the

advocate for the Defendant was appearing in the matter as late as

21st February, 2015. I, therefore, do not think that Ms Tavaria

would be correct in her submission to assert that the Defendant's

advocate did not appear because she was not paid her fees. In fact,

if that were the case, this itself would be a sufficient explanation

given by the Defendant for not being present when the suit was set

down for hearing. An advocate once engaged and appearing in

Court, has to follow a procedure of obtaining a discharge. He

cannot unilaterally decide not to represent his client in Court once

a Vakalatnama is filed. If he does so, it would be negligent and

unprofessional on his part, and for his negligence, the client would

not be penalized by the Court. Over and above this, the advocate

for the Defendant before the Trial Court, has filed an affidavit

dated 22nd March, 2016 wherein she has categorically stated in

paragraph 4 that she did not take a discharge from the suit due to

Aswale 31/35

WRIT PETITION 17138 OF 2017.docx

non payment of her professional fees and that she still has good

relations with the Defendant.

28. Looking to all these facts and considering that all along

the Defendant was appearing before the Trial Court (except on

20th March, 2015 and 27th March, 2015) before the suit was set

down for arguments, and considering that an eviction decree has

been passed which has serious consequences, I think it would be in

the fitness of the things if the impugned orders are set aside and

the Defendant is given one last opportunity to defend the case on

merits. However, this cannot be done unconditionally but on

certain terms and conditions as I find that the explanation given

by the Defendant regarding the settlement arrived at between the

Plaintiff and the Defendant as prima facie not believable. It is in

these circumstances that I pass the following order:-

(i) The orders dated 12th August, 2016 passed in

M. A. R. J. I. No.58 of 2016 and 29th April, 2017

passed in Appeal No.390 of 2016 are hereby

quashed and set aside. Consequently the

impugned judgment and decree dated 2nd May,

Aswale 32/35

WRIT PETITION 17138 OF 2017.docx

2015 is also quashed and set aside;

(ii) The matter is now restored back to the Trial

Court for a fresh hearing in R. A. E. Suit No.1202

/1942 of 2011 from the stage of cross

examination of PW-1. The Plaintiff shall be at

liberty to file additional evidence, if he so desires;

(iii) Mr. Jain appearing on behalf of the Defendant

has fairly stated that pursuant to an order dated

5th October, 2016 passed by the Appellate Bench

of the Small Causes Court, the Defendant has

deposited a sum of approximately Rs.5,00,000/-.

He stated that notwithstanding that the

impugned orders are set aside, this amount of

Rs.5,00,000/- can be credited to the suit account.

In view of this statement it is directed that the

amount deposited before the Appellate Bench of

the Small Causes Court shall be transferred to

the suit account in R. A. E. Suit No.1202 /1942 of

2011;

(iv) This order is passed subject to the fact that the

Aswale 33/35

WRIT PETITION 17138 OF 2017.docx

Defendant shall pay costs quantified at

Rs.3,00,000/- to the Plaintiff. Out of this,

Rs.1,50,000/- shall be paid by the Defendant out

of his own pocket within a period of eight weeks

from today. For the balance amount of

Rs.1,50,000/-, the Plaintiff will be entitled to

withdraw the same forthwith from the amount of

Rs.5,00,000/- already deposited with the

Appellate Bench of the Small Causes Court and

which is now ordered to be transferred to the

suit account in R.A.E. Suit No. 1202 /1942 of

2011. Needless to clarify that if the costs are not

paid as directed, this Writ Petition shall stand

dismissed and the impugned orders as well as

the decree dated 2nd May, 2015 shall stand

revived and the Plaintiff shall be entitled to

execute the decree in accordance with law;

(v) After withdrawing the amount of Rs.1,50,000/-

towards costs (from the amount of Rs.5,00,000),

the Plaintiff shall be at liberty to make an

application to the Trial Court for withdrawal of

Aswale 34/35

WRIT PETITION 17138 OF 2017.docx

the balance amount lying to the credit of the suit

account, which application shall be decided by

the Trial Court on its own merits and in

accordance with law and being uninfluenced by

any earlier orders passed by it;

(vi) The Trial Court is requested to dispose of the suit

as expeditiously as possible and in any event

within a period of six months from today.

29. Rule is made absolute in the aforesaid terms.

However, there shall be no order as to costs.

                                        (B. P. COLABAWALLA, J.)




Aswale                                      35/35