Bombay High Court
M/S. Clinirx Research Private ... vs Bilcare Limited, Thr.Its ... on 14 November, 2017
Bench: Anuja Prabhudessai
AO (St) 8010-17.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST) NO. 8010 OF 2017
with
CIVIL APPLICATION (ST) NO. 9167 OF 2017
M/s. CliniRX Research Pvt. Ltd.
A Company incorporated under
the Company Act, 1956, having its
registered office 4th Floor,
Suit No.402, TQM Business Centre,
Sector 29, Gurgaon, Haryana 122001
And
4th floor, Link House, 3,
Bahdur Shah Zafar Marg,
New Delhi 110002 ..Appellant
(Org. Defefndant)
v/s.
1) Bicare Limited
A Company incorporated under
the Company Act, 1956 through its
Authorized representative
Mr. Suyog Bagul,
Finance Controller GCS SBU,
Bilcare Ltd.
Age Adult, Occupation Service
having its registered office at
1028, Shiroli, Rajgurunagar,
Pune 410505.
(Org. Plaintiff)
2) Mr. Rakesh Bansal,
Age 49 years, Occ: Professional
4th Floor, Link House 3,
Bahadur Shah Zafar Marg,
New Delhi 110002
(Org. Defendant No.2)
SALGAONKAR 1 of 30
::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 01:08:58 :::
AO (St) 8010-17.doc
3) Mr. Sujit Kumar Mukherjee
Director,
Age Adult, Occ: Service,
4th Floor, Link House, 3
Bahadur Shah Zafar Marg,
New Delhi 110002
(Org. Defendant No.3)
4) Mr.Pawan Kumar Rustagi
Director,
Age : Adult, Occ: Service,
B1, 1589, Vasant Kunj,
New Delhi 110070
(Org. Defendant No.4)
5) Bhawana Rustagi,
Secretary,
Age Adult, Occ: Service,
A-8, Jagat Puri, Gali No.1,
New Delhi 110051
(Org. Defendant No.5) ..Respondents
Mr. Vijay Thorat, Sr. Advocate a/w. Sandeep Gaur a/w. Mr. Deep
Narayan Mishra for the for the Appellant/Applicant.
Mr. Astad Randeria a/w. Mr. Harshad dedhia a/w. Bhoumick Vaidya
i/b. Kanga & Co. for the Respondent No.1.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
RESERVED FOR JUDGMENT ON : 11TH SEPTEMBER, 2017
JUDGMENT PRONOUNCED ON : 14th NOVEMBER, 2017.
JUDGMENT :
1. The appellant-original defendant, has challenged the Order
dated 6th March, 2017 whereby the learned Joint Civil Judge, Senior
Division, Rajguru Nagar, Khed, dismissed the application under Order
9 Rule 13 of CPC for setting aside the judgment and decree dated
SALGAONKAR 2 of 30
AO (St) 8010-17.doc
28th July, 2016 in Special Civil Suit No. 2 of 2016 (Old Spl. Civil Suit
No.22 of 2014).
2. The brief facts relevant to decide this appeal are as under:
The respondent was the plaintiff and the appellant was the defendant
in Spl. Civil Suit No.22 of 2014 filed in the court of Civil Judge,
Senior Division, Pune and shall be hereinafter referred to as the
plaintiff and the defendant respectively.
3. The plaintiff had filed a suit against the aforesaid defendant for
recovery of money. The defendants on being served with summons,
put in appearance through their Advocate and sought time to file the
written statement. The defendant did not file the written statement
despite opportunities given, hence on 23rd July, 2014, the trial Court
passed 'No written statement' order and adjourned the matter for
hearing.
4. The evidence of the plaintiff was recorded, arguments were
heard, and the suit was adjourned for judgment. While the suit was
pending for judgment, the defendant filed an application under
Section 8 of the Arbitration Act (Exhibit 246). The suit was thereafter
SALGAONKAR 3 of 30
AO (St) 8010-17.doc
transferred to the Court of Rajguru Nagar, Khed. The defendant was
directed to remain present before the Court at Rajguru Nagar on 8 th
January, 2016. The defendant did not appear before the said Court.
The learned Judge dismissed of the application under Section 8 of
the Arbitration Act on 1st February, 2016 and further by judgment
dated 28th July, 2016 decreed the suit and directed the defendant to
pay to the plaintiff a sum of Rs.1,28,75,943/- with 12% pendente lite
interest.
5. The defendant filed an application dated 21 st October, 2016
under Order 9 Rule 13 of CPC for setting aside the judgment and
decree dated 28thJuly, 2016. The plaintiff also filed an application
under Section 39 r/w. Order 21 Rule 5 of CPC for transfer of the
decree to New Delhi, which was allowed by Order dated 2 nd January,
2016. The defendant challenged the said order as well as the order
of dismissal of the application under Section 8 of the Arbitration Act.
The petition challenging dismissal of application under section 8 was
later withdrawn. The petition arising from order dated 2 nd January,
2016 was disposed of by this court by Order dated 20th February,
2017 by directing the trial Court to decide the application under
Order 9 Rule 13 within two weeks from the date of the order. The
SALGAONKAR 4 of 30
AO (St) 8010-17.doc
plaintiff was also directed not to initiate execution proceeding for a
period of four weeks starting from 23rd February, 2017.
6. Pursuant to the said order, the trial court heard the parties on
the application under Order 9 Rule 13 of CPC and by the impugned
Order dated 6th March, 2017 dismissed the application mainly on the
ground that the judgment and decree was passed under Order 8 Rule
5 of CPC and the judgment and decree not being ex-parte, the
application under Order 9 Rule 13 was not maintainable. Being
aggrieved by the said order, the defendants have filed this appeal.
7. Mr. V.N.Thorat, learned Senior Counsel for the defendant has
submitted that though the defendant had not filed the written
statement, the learned Judge had not passed the decree under Order
8 Rule 5 of CPC and had in fact called upon the plaintiff to adduce
evidence. He, therefore, contends that the judgment was not under
Order 8 Rule 5 of CPC. He submits that Order 17 Rule 3 applies when
party to whom time was given fails to adduce and or take further
steps. This provision is not applicable in the present case. Moreover,
the defendant was not present on the date of the hearing. Hence the
Court could not have passed a decree on merits by exercising powers
SALGAONKAR 5 of 30
AO (St) 8010-17.doc
under Order 17 Rule 3 CPC and that the only course available was to
proceed under Order 17 Rule 2 of CPC. The learned Sr. Counsel for
the defendant submits the learned Trial Judge had proceeded under
Order 17 Rule 2 of CPC and passed the judgment under Order 9
Rule 6 of CPC. This being the case, the only remedy available to the
defendant was to file an application under Order 9 Rule 13 CPC. In
support of his contention, he has relied upon the decision of this
court in
(1) Badrinarayan Raghunath Sharma vs. Suresh Nathamal 2002 (4)
Mh.L.J. 522;
(2) Union of India, Principal Collector of Customs v. Board of
Trustees of the Port of Bombay; 2008 (1) BCR 494;
(3) Lachhiram Chudiwala v. Bank of Rajasthan 2006 (6) All MR 431;
(4) Ashok Kundalrai Mohekar v. National Textile Corporation Ltd.
2015(4) Bom.C.R. 494;
(5) The Steamship Mutual Underwriting Association (Bermuda)
Ltd. & Ors. v. Thakur Shipping Company Ltd. & Ors. 2001(3) ALL MR
159;
(6) Chandrakant Babulal Panchal & Anr. v. Ashwinibhai Mancharam
Patel & Anr. 2003(1) Bom. C.R 37;
(7) Anjirabai Chandrabhan Moon v. Sukhdeo Kashinath Thool &
SALGAONKAR 6 of 30
AO (St) 8010-17.doc
Ors. 2002 (4) Bom C.R. 572.
(8) Prakash Chander Manchanda v. Janaki Manchanda (1986) 4
SCC 699.
8. Per contra Mr. Randeria, the learned counsel for the plaintiff
has submitted that a plain perusal of the roznama reveals that the
defendant had sought time to file the written statement. The
defendant had not filed the written statement despite the opportunity
given, and as such the court had passed 'no written statement' order
and had called upon the plaintiff to adduce evidence. He submits
that the decree does not cease to be a decree under Order 8 Rule 5 of
CPC merely because the plaintiff was called upon to adduce evidence.
He submits that since the decree under Order 8 Rule 5 of CPC is not
an ex-parte decree, as rightly held by the trial Judge, the application
under Order 9 Rule 13 of CPC is not maintainable. The learned
Counsel Shri Randeria has relied upon the decision of the Apex Court
in Maya Devi v. Lalta Prasad (2015) 5 SCC 588 and the decision of
this Court in Menomal Kushaldas Sindhi v. Gangadhar Pannalal Rai
1982 Mh.L.J.188.
9. Before adverting to the facts of the case, it would be
SALGAONKAR 7 of 30
AO (St) 8010-17.doc
advantageous to refer to the provisions of Rule 5 of Order 8 of CPC
which reads thus:
" 5. Specific denial :- (1) Every allegation of fact in the
plaint, if not denied specifically or by necessary
implication, or stated to be noted admitted in the
pleading of the defendant, shall be taken to be admitted
except as against a person under disability;
Provided that the Court may in its discretion require any
fact so admitted to be proved otherwise than by such
admission,
(2) Where the defendant has not filed a pleading, it
shall be lawful for the court to pronounce judgment on
the basis of the facts contained in the plaint, except as
against a person under a disability, but the court may, in
its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to
sub-rule (1) or under sub-rule (2), the court shall have
due regard to the fact whether the defendant could have,
or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this
rule, a decree shall be drawn up in accordance with such
judgment and such decree shall bear the date on which
the judgment was pronounced.
10. A plain reading of this provision clearly indicates that the
failure to file a written statement does not necessarily entail passing
of a judgment and decree. Order 8 Rule 5 of the CPC does not
mandate such recourse. This provision gives discretion to the court
either to pronounce the judgment on the basis of the uncontroverted
SALGAONKAR 8 of 30
AO (St) 8010-17.doc
facts contained in the plaint or to call upon the plaintiff to prove such
facts.
11. It may be mentioned that a judgment pronounced in exercise of
discretion under Order 8 Rule 5 for failure of the defendant to file
written statement has to be followed by a decree. In the case of
Dhanwantrai R. Joshi vs. Satish J. Dave 1999(1) Bom.C.R. 97, the
question which was referred to the Division Bench was "whether the
decree passed in the absence of the defendant and his counsel is a
decree passed under Order 9 Rule 6 or is it a decree passed under
Order 8 Rule 5 if the same is also passed on the ground that written
statement has not been filed". The Division Bench of this Court after
considering the relevant provisions under Order 8, 9 and 17 as well
as the principles laid down by the Apex Court in Sangramsingh v.
Election Tribunal. Kotah AIR 1955 SC 425 held thus:
"12. In our view, considering the scheme of Order VIII,
Rule 5 or Rule 10, as well as Order IX, it is apparent that
both operate in different fields Order VIII, Rule 5,
specifically provides that if defendant fails to file Written
Statement as contemplated therein, the Court may
pronounce judgment on the basis of the facts contained in
the plaint, except as against a person under a disability, or
the Court may in its discretion, require any such fact to be
proved. If the judgment is pronounced on the basis of the
facts contained in the plaint, decree is to be drawn in
SALGAONKAR 9 of 30
AO (St) 8010-17.doc
accordance with Order VIII, Rule 5(4). Similarly, if a
party from whom written statement is required under
Order VIII, Rule 10, fails to present the same within the
time permitted or fixed by the Court, the Court is entitled
to pronounce judgment against such party, or make such
order in relation to the suit as it thinks fit. If the judgment
is pronounced, the decree is required to be drawn up. Such
decree pronounced on non filing of written statement
cannot be considered to be an exparte decree as
contemplated under Order IX, Rule 6. These types of
decrees are passed because of failure to file written
statement. Further, in a case where Written Statement is
not filed and at the time of hearing, even if the defendant
is present, the Court is entitled to pronounce the judgment
and pass decree. If the defendant is absent and the Written
Statement as required is not filed, the Court is also
entitled to pronounce judgment on the basis of the
averments made in the plaint.
13. As against this, under Order IX, the Court is required
to follow different procedure. Order IX, Rule 1 provides that
on the day fixed in the summons for the defendant to
appear and answer, the parties shall be in attendance at the
Court house and suit shall then be heard unless the hearing
is adjourned to a future day fixed by the Court. This means
that suit is fixed for hearing and on the date of hearing if
neither parties appears then the suit may be dismissed as
provided under Order IX, Rule 3. If the defendant fails to
appear on the date of hearing, the Court is required to pass
an order that the suit be heard exparte and to proceed
further with the hearing of the suit. This requires recording
of evidence and to proceed with the matter. After recording
evidence ex parte, the Court can pronounce judgment on the
basis of the evidence which is brought by the plaintiff. In
such cases, the suit is not disposed of as provided under
Order VIII, Rule 5 or Rule 10 on the basis of the averments
made in the plaint.
14. Further, under Order IX, Rule 13, the defendant is
entitled to file application for setting aside exparte decree
on two grounds, namely (i) that the summons was not duly
SALGAONKAR 10 of 30
AO (St) 8010-17.doc
served and (ii) that he was prevented by any sufficient
cause from appearing when the suit was called on for
hearing. This also indicates that the suit is required to be
fixed for hearing and on the date of hearing the defendant
is absent.
15. In this view of the matter, in our view, application
under Order IX, Rule 13 is not maintainable when the
Court has passed a decree under Order VIII, Rule 5 or Rule
10 of the C.P.C. There is no provision in Order VIII for
setting aside a decree passed under Rule 5 or 10 thereof for
non-filing of Written Statement. The only remedy open in
such cases is to file an appeal against such decree. Decree
under Order VIII, Rule 5 or Rule 10 is passed because of the
specific provisions under Order VIII that every allegation of
fact in the plaint, if not denied specifically or by necessary
implication or stated to be not admitted in the pleading of
the defendant, then it shall be taken to be admitted except
against a person under disability, and thereafter there is a
provision that the Court has discretion to pronounce
judgment on the basis of the facts contained in the plaint.
This scheme is totally different from the scheme of passing
ex parte decree under Order IX."
12. The principles laid down by the Division Bench in Dhanwantrai
(supra) have been followed and reiterated in all subsequent
judgments relied upon by the learned Sr. Counsel Shri Thorat. Hence
it is not necessary to make a separate reference to these judgments.
The aforesaid judgments lay down a clear proposition that the decree
passed in exercise of discretion under Order 8 Rule 5 is not an ex-
parte decree and is not amenable to the remedy under Order 9 Rule
13 of CPC and the only remedy available is to file an appeal against
SALGAONKAR 11 of 30
AO (St) 8010-17.doc
such decree.
13. It may also be noted here that when the court proceeds to
call upon the plaintiff to prove the facts contained in the plaint, the
failure of the defendant to file the written statement does not
preclude him from participating in further proceedings, cross-
examining the plaintiff and his witnesses and impeaching their
credibility and from advancing the arguments and demonstrating
that the plaintiff on his own case is not entitled for the reliefs
claimed. The only consequence of not filing the written statement
would be that the defendant would not be entitled to set up his
defence or lead his own evidence. Nevertheless all further
proceedings are required to be conducted in accordance with normal
rules prescribed by the Code of Civil Procedure in the conduct of the
suit. As it has been held by the Apex in Balraj Taneja versus Sunil
Moden 1999 (8) SCC 396 :
...."Whether it is the case which is contested by the
defendants by filing a written statement, or a case which
proceeds ex-parte and is ultimately decided as an ex-
parte case, or is a case in which the written statement is
not filed and the case is decided under Order 8 Rule 10,
the Court has to write a judgment which must be in
conformity with the provisons of the Code or at least set
out the reasoning by which the controversy is resolved."
SALGAONKAR 12 of 30
AO (St) 8010-17.doc
14. Needless to state that the when the defendant fails to file the
written statement and the court requires the facts to be proved and
ultimately pronounces the judgment based on the evidence adduced
by the plaintiff, such judgment cannot be treated as one under
provisions of Rules 5 or 10 of Order 8 of CPC.
15. In the instant case the records reveal the defendant had put in
their appearance through their Advocate on 4 th March,2014. By
application at Exhibit 16 the defendant had sought time to file the
written statement. Though the defendant had not filed the written
statement, the learned Judge had not exercised the discretion to
pronounce the judgment on the basis of uncontroverted facts in the
plaint but had called upon the Plaintiff to prove the said facts. The
judgment and decree was therefore not passed under Order 8 Rule 5
of CPC. In view of this factual position, the application under Order 9
Rule 13 could not have been dismissed on the premise that the
judgment was pronounced under Order 8 Rule 5 of the CPC.
16. It is to be noted that the defendant herein has sought to
set aside the decree by invoking provisions of Order 9 Rule 13 of the
CPC. There is no dispute that the decree passed under Order 9 Rule6
SALGAONKAR 13 of 30
AO (St) 8010-17.doc
of CPC can be set aside under by exercising powers under Order 9
Rule 13 CPC. However, the question for consideration is whether the
decree, which is sought to be set aside, is an ex-parte decree.
17. The term "ex-parte" connotes absence of the other party. The
provisions under Order 9 and 17 relate to such eventuality. The
provisions relevant to decide the present controversy are under Order
9 Rule 6 and Order 17 Rule 2 and 3 and the same read as under:
"6. Procedure when only plaintiff appears.- (1)
Where the plaintiff appears and the defendant does not
appear when the suit is called on for hearing, then
(a) When summons duly served--lf it Is proved that
the summons was duly served, the court may make an
Order that the suit be heard ex parte;
(b) When summons not duly served--if it is not
proved that the summons was duly served, the court
shall direct a second summons to be issued and served
on the defendant;
(c) When summons served but not in due time--if it
is proved that the summons was served on the
defendant, but not insufficient time to enable him to
appear and answer on the day fixed in the summons, the
court shall postpone the hearing of the Suit to a future
day to be fixed by the court, and shall direct notice of
such day to be given to the defendant.
(2) Where it is owning to the plaintiff's default that the
summons was not duly served or was not served in
sufficient time, the court shall Order the plaintiff to pay
the costs occasioned by the postponement.
SALGAONKAR 14 of 30
AO (St) 8010-17.doc
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 IX or
make such other orders 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."
" 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
(b) if the parties are, or any of them is, absent, proceed
under Rule 2.
18. These provisions, in particular Order 9 Rule 6 (1) (a) envisages
a situation when the plaintiff appears and the defendant does not
appear on the first hearing despite due service of summons. This
provision enables the Court to make an order to hear the suit ex-
parte. Whereas, Order 17 Rule 2 and 3 would apply when the parties
or any one of them fail to appear on the adjourned date of hearing.
SALGAONKAR 15 of 30
AO (St) 8010-17.doc
In such a situation, Rule 2 of Order 17 provides two alternative
courses. It enables the Court to take recourse to one of the modes
under Order 9, i.e. to dismiss the suit for default under Order 9 Rule
8 if the plaintiff is absent or to hear the suit ex-parte by taking
recourse to Order 9 Rule 6 of CPC if the defendant is absent at the
adjourned date of hearing. The second limb of Order 17 Rule 2
empowers the Court to make such other order as it thinks fit.
Explanation to this Rule carves out an exception to the Rule and gives
discretion to the court to proceed with the case in the absence of the
party if such party has already adduced substantial evidence.
19. Whereas Rule 3 of Order 17 applies when the party to whom
time was granted fails to produce evidence or to take steps necessary
for progress of the suit. Rule 3 contemplates two contingencies- i.e.
when the parties are present in the court, in which case
notwithstanding the default, the court is to proceed with further
hearing of the suit. The judgment in such case would be on merits
and the same would not be open to remedy under Order 9 Rule 13
CPC. Secondly, when the parties or any one of them is absent, the
court has to take recourse to Rule 2.
SALGAONKAR 16 of 30
AO (St) 8010-17.doc
20. In B. JANAKIRAMAIAH CHETTY versus A.K. PARTHASARTHI
AND ORS. (2003) 5 SCC 641, the Apex Court while considering the
scope and ambit of Explanation to Rule 2 has held thus:
The Explanation permits, the Court in its discretion to pro-
ceed with a case where substantial portion of 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 ad-
journed. As the provision itself shows, discretionary power
given to the Court to be exercised in a given circumstances.
For application of the provision, the Court has to satisfy it-
self 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 provid-
ed in Order IX 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 un-
der the Rule, conferring discretion on the Court to act under
the specified circumstance i.e. where evidence or a substan-
tial 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 IX 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 Expla-
nation was applied by the Court or not.
In Rule 2, the expression used is "make such order as it
deems fit", as an alternative to adopting one of the modes
SALGAONKAR 17 of 30
AO (St) 8010-17.doc
directed in that behalf by Order IX. Under Order XVII Rule
3(b), only course open to the Court is to proceed under Rule
2, when a party is absent. Explanation thereto gives a dis-
cretion 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 op-
tion but to proceed as provided in Rule 2. Rules 2 and 3 op-
erate 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 em-
powers the Court to decide the suit forthwith. The basic dis-
tinction between the two Rules. However, is that in the for-
mer, 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 permis-
sive 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.
The crucial expression in the Explanation is "where the evi-
dence 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 Explana-
tion may proceed with the case if that prima facie is the po-
sition. 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 or 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.
SALGAONKAR 18 of 30
AO (St) 8010-17.doc
21. It therefore follows that when the Defendant fails to appear on
the adjourned hearing, the court is vested with the discretion either
to take recourse to Order 9 Rule 6 or to make any order deem fit and
if the case is covered by the explanation, to proceed with the case as
if the defendant were present.
22. It may be mentioned that the Apex Court in the case of
Sangram Singh and Arjun Singh has explained the consequences of
making an ex-parte order under Order 9 Rule 6. The Apex Court has
held that the right to proceed 'ex-parte' is a right which accrues from
day to day. It is not a mortgaging of the future but only applies to
the particular hearing at which a party is afforded the chance to
appear and did not avail himself of it. Therefore, if a party does
appear on 'the day to which the hearing of the suit is adjourned', he
cannot be stopped from participating in the proceedings simply
because he did not appear on the first or some other hearing. It is
further held that the defendant against whom the suit is ordered to
proceed ex-parte has a right to appear at an adjourned hearing.
However, he has no right to set back the hands of the clock unless he
can show good cause for his non-appearance and the court in
SALGAONKAR 19 of 30
AO (St) 8010-17.doc
exercise of powers under Order 9 Rule 7 directs that he be heard in
answer to the suit. The remedy under Order 9 Rule 7 is available as
long as the suit is adjourned for 'hearing'. Once this stage is crossed
i.e. when the hearing is completed, then the remedy would not be
under Order 9 Rule 7 but under Order 9 Rule 13 CPC.
23. It is thus well settled that the fact that the case is ordered to
proceed ex-parte would not preclude the defendant from
participating in further proceedings from the stage at which he comes
in. He has a right to appear at the adjourned hearing and participate
in the proceeding from that stage. The only embargo is that he
cannot be relegated back to the stage as on the date he had absented
himself on the date fixed for hearing, unless he appears at or before
the adjourned hearing and assigns good cause for his previous non-
appearance and the court in exercise of powers under Order 9 Rule 7
sets aside the exparte order and directs he be heard in the suit.
24. The issue raised in this appeal needs to be considered keeping
in mind the above provisions and the principles of law. First and
foremost, a brief reference to some of the relevant dates and the
sequence of events in the suit:- Upon being served with summons,
SALGAONKAR 20 of 30
AO (St) 8010-17.doc
the defendant put in appearance on 4 th March, 2014 and sought time
to file written statement. Time was granted and the suit was
adjourned to 2nd April, 2014 and again to 23rd April, 2014. On both
these dates the defendant did not file written statement despite being
represented by an advocate. The case was adjourned to 23 rd July,
2014 on which date neither the defendant nor his advocate was
present. The court passed "No written statement" order and fixed the
matter for hearing on 6th August, 2014, on which date, the
examination-in-chief of the plaintiff was recorded in presence of the
advocate for the defendant.
25. It is to be noted that though the defendant had appeared on 6th
August, 2014, he did not file an application under Order 9 Rule 7 for
setting aside the ex-parte order and permitting him to file the written
statement, but filed an application (Exhibit 35) to stay the suit. The
plaintiff filed his reply to the said application on 17 th September,
2014. On 27th October, 2014 the advocate for the defendant was
present but the case was adjourned at the request of the plaintiff. On
the next two hearings the defendant and his advocate did not appear.
The learned judge adjourned the hearing to 16 th December, 2014, on
which date the defendant once again remained absent and the case
SALGAONKAR 21 of 30
AO (St) 8010-17.doc
was adjourned to 21st January, 2015 for orders on application
(Exhibit 35). The defendant appeared on 21st January, 2015 through
his advocate and the Court ordered to "file the said application" and
posted the matter for further chief.
26. On 24th March, 2015, examination in chief of the plaintiff was
concluded in the presence of the advocate for the defendant. On the
same day the defendant filed an application to allow him to advance
arguments on application at Exhibit 35. The said application was
allowed, arguments on (Exhibit 35) were heard on 4 th August, 2015
and the same was disposed of on the same day and the suit was
adjourned to 7th September, 2015 for cross examination of PW1.
27. On 7th September, 2015 neither the defendant, nor his
advocate were present and hence the suit was adjourned to 16 th
September, 2015 for cross examination of PW1. The defendant and
his advocate failed to remain present on the said date, the cross-
examination of PW1 was closed and the case was adjourned for
further evidence of the plaintiff on 21 st September, 2015. The
plaintiff did not adduce further evidence and hence the case was
posted for final arguments on 6th October, 2015.
SALGAONKAR 22 of 30
AO (St) 8010-17.doc
28. The records reveal that on 6th October, 2015 the defendant was
represented by his advocate despite which he did not file any
application under Order 9 Rule 7 and did not seek leave to cross
examine the plaintiff. The advocate for the defendant had not
advanced any arguments though he was present when the suit was
finally heard and posted for judgment.
29. As stated earlier the term ex-parte presupposes that the case
had proceeded in the absence of the defendant and the absence of the
defendant was due to non-service of summons or for any other
sufficient cause. The records reveal that the defendant had appeared
on being served with summons. He had also appeared after the case
was ordered to proceed without the written statement but had not
sought leave to file the written statement. The defendant had
therefore forfeited its right to file the written statement and
consequently to set up its defence and lead evidence.
30. It is also to be noted that the evidence of the plaintiff was
recorded in presence of the advocate for the defendant. True that the
Learned Judge, taking recourse to Rule 2 of Order 17, had closed the
SALGAONKAR 23 of 30
AO (St) 8010-17.doc
cross of the plaintiff in view of the absence of the defendant and his
advocate. Nevertheless, the advocate for the defendant was present
on the subsequent date when the case was adjourned for final
hearing but he had not sought to set aside the said ex parte order.
The defendant having failed to seek remedy under Order 9 Rule 7
CPC despite having appeared on subsequent dates, had no right to be
relegated to the earlier position. and had therefore lost the privilege
of cross-examining the plaintiff though he was entitled to participate
in further proceedings. The records reveal that the defendant was
permitted to participate in further proceedings. However, despite
being present in the Court on 6th October, 2015 the advocate for the
defendant had chosen not to advance the arguments. In such
circumstances, the defendants cannot claim that the suit was heard
ex-parte.
31. The record reveals that the judgment was not pronounced on
the schedule date and the case was adjourned repeatedly on the
ground that the learned Judge was busy with other urgent matters. It
is seen that on 1st December, 2015 while the matter was posted for
judgment, another advocate put in his appearance on behalf of the
defendant and filed an application for adjournment. The suit was
SALGAONKAR 24 of 30
AO (St) 8010-17.doc
posted for judgment on 28 th December, 2015 on which date the
defendant filed an application under Section 8 of Arbitration Act. On
the same date the suit was transferred to Rajguru Nagar, Khed, and
the parties were duly notified to appear before the said Court. The
defendants did not appear before the Court at Rajguru Nagar. The
learned judge heard the plaintiff and dismissed the application under
Section 8 of Arbitration Act. On the subsequent date of hearing the
plaintiff was heard and the judgment and decree was passed on 28 th
July, 2016. It is in this context that the judgment and decree is
projected to be an ex-parte decree.
32. The question, which arises, is whether failure of the defendant
to appear before the transferee court and whether pronouncement of
the judgment without hearing the defendant would render the decree
"ex-parte".
33. In this regard it would be relevant to refer to the provision
under Order 18 Rule 15, which reads thus;
Order 18 Rule 15 of the Code is as follows:
"15. Power to deal with evidence taken before another
Judge.- (1) Where a Judge is prevented by death,
transfer or other cause from concluding the trial of a
suit, his successor may deal with any evidence or
SALGAONKAR 25 of 30
AO (St) 8010-17.doc
memorandum taken down or made under the foregoing
rules as if such evidence or memorandum had been
taken down or made by him or under his direction
under the said rule and may proceed with the suit from
the stage at which his predecessor left it.
(2) The provisions of sub-rule (1) shall, so far as they
are applicable, be deemed to apply to evidence taken in
a suit transferred under section 24."
34. In Rasiklal Manickchand Dhariwal v. M.S.S.Food Products
(2012) 2 SCC 196 the Apex Court has observed as :
"25. The hearing of a suit begins on production of
evidence by the parties and suit gets culminated on
pronouncement of the judgment. Under Order XVIII Rule 1
of the Code, the plaintiff has a right to begin unless the
defendant admits the facts alleged by the plaintiff and
contends that either in point of law or on some additional
facts alleged by him the plaintiff is not entitled to any part
of the relief which he seeks, in which case the defendant
has the right to begin. On the day fixed for the hearing of
the suit or any other day to which the hearing is
adjourned, as per the provisions contained in Order XVIII
Rule 2, party having the right to begin is required to state
his case and produce his evidence in support of issues
which he is bound to prove. Under Order XVIII, Rule 2 sub-
rule (2), the other party shall then state his case and
produce his evidence. Under sub- rule (3A) of Rule 2 of
Order XVIII, the parties in suit may address oral
arguments in a case and may also avail opportunity of
filing written arguments before conclusion of oral
arguments. Rule 15 of Order XVIII provides for the
contingency where the Judge before whom the hearing of
the suit has begun is prevented by death, transfer or other
cause from concluding the trial of a suit. This provision
enables the successor Judge to proceed from the stage at
which his predecessor left the suit. The provision contained
in Rule 15 of Order XVIII of the Code is a special provision.
The idea behind this provision is to obviate re-recording of
SALGAONKAR 26 of 30
AO (St) 8010-17.doc
the evidence or re-hearing of the suit where a Judge is
prevented by death, transfer or other cause from
concluding the trial of a suit and to take the suit forward
from the stage the predecessor Judge left the matter. The
trial of a suit is a long drawn process and in the course of
trial, the Judge may get transferred; he may retire or in an
unfortunate event like death, he may not be in a position
to conclude the trial. The Code has taken care by this
provision that in such event the progress that has already
taken place in the hearing of the suit is not set at naught.
This provision comes into play in various situations such
as where part of the evidence of a party has been recorded
in a suit or where the evidence of the parties is closed and
the suit is ripe for oral arguments or where the evidence of
the parties has been recorded and the Judge has also heard
the oral arguments of the parties and fixed the matter for
pronouncement of judgment. The expression "from the
stage at which his predecessor left it" is wide and
comprehensive enough to take in its fold all situations and
stages of the suit. No category or exception deserves to be
carved out while giving full play to Rule 15 of Order XVIII
of the Code which amply empowers the successor Judge to
proceed with the suit from the stage at which his
predecessor left it.
...
31.. The expressions "state his case", "produce his
evidence" and "address the court generally on the whole
case" occurring in Order XVIII Rule 2, sub-rule (1) and
sub-rule (2) have different meaning and connotation. By
use of the expression "state his case", the party before
production of his evidence is accorded an opportunity to
give general outlines of the case and also indicate generally
the nature of evidence likely to be let in by him to prove
his case. The general outline by a party before letting in
evidence is intended to help the court in understanding the
evidence likely to be followed by a party in support of his
case. After case is stated by a party, the evidence is
produced by him to prove his case. After evidence has been
produced by all the parties, a right is given to the parties
SALGAONKAR 27 of 30
AO (St) 8010-17.doc
to make oral arguments and also submit written
submissions, if they so desire. The hearing of a suit does
not mean oral arguments alone but it comprehends both
production of evidence and arguments. The scheme of the
Code, as embodied, in Order XVIII Rule 2, particularly,
sub-rules (1), (2), (3) and (3A) and Order XVIII Rule 15
enables the successor Judge to deliver the judgment
without oral arguments where one party has already lost
his right of making oral arguments and the other party
does not insist on it.
...
35. Secondly, once the suit is closed for pronouncement of
judgment, there is no question of further proceedings in
the suit. Merely, because the defendants continued to make
application after application and the trial court heard
those applications, it cannot be said that such appearance
by the defendants is covered by the expression "appeared
on the day fixed for his appearance" occurring in Order IX
Rule 7 of the Code and thereby entitling them to address
the court on the merits of the case"
35. In the instant case, it is not in dispute that while the suit was
pending before the Pune Court, the hearing was concluded and the
suit was adjourned for judgment. Hence there was no question of
any further proceedings in the suit. The fact that the defendant had
filed an application under Section 8 of Arbitration Act, after the suit
was closed for judgment or that transferee Court had heard the said
application would not change or reverse this situation.
36. As stated earlier, the defendant had failed to avail the
SALGAONKAR 28 of 30
AO (St) 8010-17.doc
opportunity of arguing the case while the suit was pending before the
Court at Pune. The defendant had also failed to appear before the
Court at Rajguru Nagar, Khed. In such fact situation he cannot be
permitted to raise a grievance that the successor Judge, who
delivered the judgment, had not given him an opportunity to advance
final arguments. Furthermore, in terms of the provisions of Rule 15 of
Order 18 the transferee Court was not under obligation to hear the
defendant on merits. Hence the judgment pronounced without
hearing the defendant cannot be said to be an ex-parte judgment.
37. Even otherwise, Rule 2 of Order 17 gives wide discretion to the
Court to dispose of the suit in one of the modes directed in that
behalf by Order 9 or make such other order as it deems fit. Moreover,
the explanation to the Rule gives discretion to the Court to proceed in
the absence of the party, where substantial portion of the evidence of
such party has been recorded. In the instant case, the plaintiff had
already adduced the evidence that the defendant was present on the
subsequent date but he had not availed himself of the opportunity of
cross examining the plaintiff. The defendant had not filed the
written statement, hence there was no question of the defendant
adducing any evidence as required under the explanation. The
SALGAONKAR 29 of 30
AO (St) 8010-17.doc
defendant had also not advanced oral argument while the suit was
pending before Pune Court. The hearing of the suit was therefore
concluded in all aspects and neither the plaintiff nor the defendant
was required to take any further steps in the suit. In view of the
above facts, the successor Judge was perfectly within his powers to
consider the evidence on record and to pass a judgment on merits,
without taking recourse to the provisions of Order 9 CPC, Hence,
looking at the matter from all angles, the judgment and decree
cannot be said to be an ex-parte decree. Consequently, the
application under Section 9 Rule 13 of CPC is not maintainable and
the only remedy open is to file an appeal against such decree.
38. Under the circumstances and in view of discussion supra, the
appeal is dismissed.
. Civil application (St) No. 9167 of 2017 does not survive in view
of disposal of the Appeal from Order, and the same is accordingly
disposed of.
(ANUJA PRABHUDESSAI, J.)
SALGAONKAR 30 of 30
