Gujarat High Court
Yogini Shaileshbhai Bhuta vs Rrahulraj Realtor Pvt Ltd And Director ... on 31 January, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1241 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/FIRST APPEAL NO. 1241 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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YOGINI SHAILESHBHAI BHUTA
Versus
RRAHULRAJ REALTOR PVT LTD AND DIRECTOR NARENDRA KANTILAL
SHAH
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Appearance:
MR RISHABH D PARIKH(10587) for the Appellant(s) No. 1
MR. HJ KARATHIYA(7012) for the Appellant(s) No. 1
MR MJ MEHTA(5797) for the Defendant(s) No. 1,2,6,7
MR NANDISH H SHAH(11330) for the Defendant(s) No. 1,2
MR NIRAD D BUCH(4000) for the Defendant(s) No. 1,2,6,7
MR RASESH H PARIKH(3862) for the Defendant(s) No. 3,4,5
MR SAURABH J MEHTA(2170) for the Defendant(s) No. 1,2,6,7
MR.HEMANG H PARIKH(2628) for the Defendant(s) No. 3,4,5
MRS. BHAVINI N. BUCH(5403) for the Defendant(s) No. 1,2,6,7
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Page 1 of 40
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Date : 31/01/2024
CAV JUDGMENT
1. Heard learned senior counsel Mr.Devan Parikh
with learned advocate Mr.H.J.Karathiya for the appellant,
learned senior counsel Mr.Devang Nanavati with learned
advocate Mr.Saurabh Mehta for respondent Nos.1,2,6 & 7
and learned advocate Mr.Rasesh Parikh for respondent
Nos.3,4 & 5.
2. By way of the present First Appeal filed under
Section 96 of the Code of Civil Procedure Code, 1908, the
appellant has challenged the judgment and decree dated
31.01.2020 passed by the learned 6th Additional Senior
Civil Judge, Surat in Special Civil Suit No.203 of 2017
below Exhibits 1, 50 and 51, whereby the learned Judge
has dismissed the suit.
3. The brief facts, leading to the present First
Appeal, are as under:-
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3.1 The appellant - original plaintiff filed suit
seeking possession, specific performance, as well as
perpetual injunction, which came to be dismissed on
31.01.2020 for want of leading evidence on behalf of
plaintiff.
3.2 While dismissing Exhibit 5 application, learned
trial Court directed to produce documents within 3 months
from the date of order. The said order came to be
challenged by way of Appeal From Order being No.41 of
2019 before this Court. This Court did not grant stay of
proceedings. Thereafter, the appellant made an application
at Exhibit 50 to direct defendants to demarcate vacant
area and submit the map. The said application came to be
dismissed by the learned trial Court on 31.01.2020 and
also dismissed the suit on the same day. Hence, the
present appellant before this Court.
4. The preliminary objection raised by the learned
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Senior Advocate Mr.Devang Nanavati for respondent No.1,
2, 6 and 7 and learned advocate Mr.Rasheh Parikh for
respondent Nos. 3, 4 and 5 that appeal would not be
maintainable against the order dated 30.01.2020 since the
order is not a decree.
5. Hence, this Court is only considering the
question about the maintainability of the present appeal
and dealing with the question whether order dated
30.01.2020 amount to decree or not. Since the issue at
present is in a narrow compass this Court is not going into
the merits and demerits of the facts involved in the suit.
Submissions of learned Senior Counsel for the appellant.
6. Learned senior counsel Mr.Devan Parikh for the
appellant submits that the dismissal of the suit amounts to
the decree and thus, the appeal would lie under Section
96 of the Code of Civil Procedure. Learned senior counsel
for the petitioner has relied upon the following provisions
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in support of his submissions:-
Section 2(2) of the Code of Civil Procedure, 1908
which is reproduced hereinunder:-
2.Definitions.- In this Act, unless there is anything
repugnant in the subject of context-
(2) "decree" means the formal expression of an
adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of
the parties with regard to all or any of the matters
in controversy in the suit and may be either
preliminary or final. It shall be deemed to include
the rejection of a plaint and the determination of
any question within [***] section 144, but shall not
include-
(a) any adjudication from which an appeal lies as
an appeal from an order, or
(b) any order of dismissal for default.
6.1 The definition of decree is divided in two parts,
first part refers to an adjudication determining the rights
of the parties and second portion include "the rejection of
a plaint". Therefore, if plaint is rejected by
pronouncement of a lower Court, it can be construed to be
a decree, even if there is no conclusive determination of
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the rights of the parties by adjudication.
6.2 The appellant's case is that the pronouncement
of the Court falls under the first portion as well as the
second portion of the definition of the term decree. By
pronouncement of the lower Court, the plaint stands
rejected. The only issue to be determined is whether the
pronouncement amounts to an order of "dismissal for
default."
6.3 Learned senior advocate has referred Order IX
Rule 6(1)(a) of the Civil Procedure Code, 1908 which is
reproduced hereinunder:-
"6(1)(a) When summons duly served- if it is proved
that the summons was duly served, the Court may
make an order that the suit shall be heard ex-
parte."
6.4 Order-IX itself is concerned with the presence or
absence of the parties at the first hearing. The entire
Order IX deals with the presence and absence of the
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parties or failure to do acts at the first hearing. Order-IX
Rule-6(1)(a), provides that the Court can only make an
order to hear the suit ex-parte against the defendant, if he
does not appear.
6.5 Learned senior counsel Mr.Parikh has also
referred to Order IX Rule-8 of the Code of Civil Procedure,
1908 which is reproduced hereinunder:-
"8. Procedure where defendant only appears-
Where the defendant appears and the plaintiff does
not appear when the suit is called on for hearing,
the Court shall make an order that the suit be
dismissed, unless the defendant admits the claim, on
part thereof, in which case the Court shall pass a
decree against the defendant upon such admission,
and, where part only of the claim has been
admitted, shall dismiss the suit so far as it relates to
the remainder."
6.6 The said Rule provides for an eventuality where
the defendant appears and the plaintiff does not appear. In
such circumstances, unless the defendant admits the claim,
the Court shall dismiss the suit.
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6.7 Order IX Rule 9 provides that the plaintiff then
cannot bring a fresh suit, but he can apply for restoration
of the suit. The reliance is placed on Order IX Rule-13 of
the Code of Civil Procedure, 1908 which is reproduced
hereinunder:-
"13. Setting aside decree ex parte against
defendant.- In any case in which a decree is passed
ex parte against a defendant, he may apply to the
Court by which the decree was passed for an order
to set it aside; and if he satisfies the Court that the
summons was not duly served, or that he was
prevented by any sufficient cause from appearing
when the suit was called on for hearing, the Court
shall make an order setting aside the decree as
against him upon such terms as to costs, payment
into Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature
that it cannot be set aside as against such
defendant only it may be set aside as against all or
any of the other defendants also:
[Provided further than no Court shall set aside a
decree passed ex parte merely on the ground that
there has been an irregularity in the service of
summons, if it is satisfied that the defendant had
notice of the date of hearing and had sufficient
time to appear and answer the plaintiff's claim]
[Explanation- Where there has been an appeal
against a decree passed ex parte under this rule,
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and the appeal has been disposed of an any ground
other than the ground that the appellant has
withdrawn the appeal, no application shall lie
under this rule for setting aside that ex parte
decree.]
6.8 The said Rule 13 provides a right to the
defendant for setting aside a decree passed ex parte
against defendant.
6.9 Learned Senior advocate Mr.Parikh has placed
reliance on Order-XV Rule-4, which is reproduced
hereinunder:-
"4.Failure to produce evidence- Where the
summons has been issued for the final disposal of
the suit and either party fails without sufficient
cause to produce the evidence on which he relies,
the Court may at once pronounce judgment, or
may, if it thinks fit, after framing and recording
issues, adjourn the suit for the production of such
evidence as may be necessary for its decision upon
such issues.
6.10 The said Rule 4 provides for disposal of the suit
at the first hearing. If either party fails to produce
evidence, the Court may at once pronounce judgment or
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may frame issues and adjudicate the suit. This is not a
dismissal of the suit, but empowerment of the Court to
pronounce the judgment. In the course of pronouncing the
judgment, the Court may either allow the suit or even
dismiss the suit, but in either case it is pronouncing a
judgment. It would be impossible to suggest that if the
Court does so under Rule-4, such a pronouncement is not
a "decree."
6.11 Learned senior advocate has referred further
Order XVII Rule 2 and 3 which is reproduced
hereinunder:-
"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 failed 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.]
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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].
6.12 Order XVII Rule 2 and 3 of the Code prescribes
as to the procedure to be adopted by the Courts. If on the
date the suit is adjourned, any of the parties fails to
appear, the Court may proceed to "dispose of the suit" in
one of the modes provided in Order-IX. The modes
contemplated under Order-IX would be that if the plaintiff
is absent, the suit can be dismissed for default and if the
defendant is absent, the Court may proceed to ex-parte
decide the suit. The explanation to Rule (3) provides that
once the Court arrives at a substantial finding that the
party who is absent has led substantial evidence is enough
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to dispose of the suit, it may decide the suit either way by
allowing the plaint or rejecting it. Such a disposal would
be a decree though passed in default for absence or
presence of either party.
6.13 Order-XVII Rule 3 of the Code states that if
time is granted to the parties to produce evidence and the
parties failed to produce evidence, then there are two
options. As per clause (a), if the party is present, the
Court can proceed to decide the suit forthwith or (b) if the
party or any of them is absent, the Court will proceed
under Rule 2. In case of eventuality of clause (b), the
Court can even pass an order under Order-IX for default.
6.14 Order-IX of the Code provides that if the
defendant remains absent, the Court can only direct that
the suit is to be decided ex parte and then to actually
decide the suit ex parte. The suit can never be decreed by
a default judgment. Secondly, as per Order-XV, if
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summons are issued for final disposal and if either party
fails to produce evidence, the Court may at once
pronounce judgment. Therefore, this is not a summarily
dismissal of the suit for default. Order-XVII Rule-2 states
that if the parties do not appear on the date when the suit
is adjourned then, it is open to the Court to dispose of the
suit in the manner provided in Order-IX. Under the
explanation, however, if the Court believes that sufficient
evidence is led by the defaulting party, then the Court is
granted a discretion to proceed with the suit as if such
party was present. In such circumstances also, the Court
will then not pass a default dismissal of the suit, but will
decide the suit either for the plaintiff or against him. This
again, therefore, is not a summary dismissal of the suit for
default. Order-IX Rule-3, if the party who is required to
produce evidence by an order of the Court fails to produce
that evidence, then the Court has only two options. Under
clause (a), if the parties are present, the Court has to
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proceed to decide the suit forthwith. However, if the
parties or any of them are absent, then the Court can
under Clause (b) take recourse to the same action that it
can take under Rule-2.
6.15 Order-XVII Rule 3 of the Code can apply even
in cases where both the parties are present. Therefore, one
thing is certain that if both the parties are present, then
Order-XVII Rule-2 can never apply. The consistent view is
that if the situation is of Order-XVII Rule-3(a), then an
appeal will lie. If the situation is of Order-XVII Rule-3(b),
then Order-IX application will lie. Similarly, if the case
false under Order-XVII Rule-2, then an application under
Order-IX would lie for restoration.
6.16 Upon perusal of the impugned judgment would
show that both the parties were present and were
represented by respective Advocates. The parties were
directed to remain present with evidence. Despite that, no
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evidence is produced. It is submitted that the case directly
falls under Order-XVII Rule-3 inasmuch as both the parties
were represented by lawyer who were present on that
date. The Court had directed that evidence be produced,
but the plaintiff has not produced evidence. The final
order is also that as the plaintiff has not produced any
evidence, the suit is rejected.
6.17 When there is an order of the Court requiring
parties to produce evidence and evidence is not produced,
the Court only has powers under Order-XVII Rule-3 (a) to
proceed to decide the suit forthwith. Once it is clear that
this is the only power which existed in the Court, then it
must be presumed that what the Court has done is to
decide the suit and such a pronouncement is, therefore,
rejection of a plaint, but not a dismissal for default as
contemplated under Section 2(2) of the C.P.C. and,
therefore, a decree.
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6.18 When no evidence is produced, then all
averments in the plaint would automatically fall even a
single line judgment which says that in the absence of any
evidence, the suit is rejected is sufficient consideration
even on merits.
6.19 Once issues are framed and the matter is
proceeded for trial, if the parties are present, the Court
only had powers to decide on merits and cannot pass a
default dismissal of the suit. There is no power under the
Civil Procedure Code when the parties are present to pass
default dismissal once trial commences.
6.20 The Appellants have already applied to the
lower Court to get a decree drawn and the lower Court
has refused the same by an order.
Submissions of learned Senior Counsel of Respondent
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7. Learned senior counsel for respondent Nos.1, 2,
6 and 7 submits that the present appellant has challenged
the order dated 31.01.2020, which is not a decree as
defined under Section 2(2) of the Code of Civil Procedure,
and hence, First Appeal filed by the appellant under
Section 96 of the Code of Civil Procedure is not
maintainable and is required to be dismissed.
7.1 Pursuant to the order dated 31.01.2020, the
captioned suit is disposed off on the ground of non -
production of evidence. Pursuant to the order dated
16.01.2019 below Exhibit - 5 in Special Civil Suit No.
203/2017, the learned 6th Additional Senior Civil Judge,
Surat dismissed the application below Exhibit - 5 and
directed the parties to produce whole evidence within
three months from the date of the order and in failure to
do so, adverse inference was to be drawn against the
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defaulting person. The appellant preferred an Appeal from
Order being Appeal from Order No. 41 of 2019, whereby
this Hon'ble Court passed an order dated 14.02.2019
admitting the said Appeal from Order.
7.2 Learned trial Court asked the parties to produce
evidence on multiple occasions to proceed with the suit.
However, the appellant on several occasions for one or
other reasons requested the learned trial Court for
adjournments and did not produce evidence. The learned
Trial Court has framed issues on 16.01.2019.
7.3 It is further submitted that the matter was listed
on the dates which are as under:-
6th ADDL. SR. CIVIL 30-09- 21-10- PLAINTIFF
203/2017
JUDGE & A.C.J.M. 2019 2019 EVIDENCE
6th ADDL. SR. CIVIL 21-10- 15-11- PLAINTIFF
203/2017
JUDGE & A.C.J.M. 2019 2019 EVIDENCE
203/2017 3rd ADDL. SR. CIVIL 15-11- 03-12- PLAINTIFF
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JUDGE & A.C.J.M. 2019 2019 EVIDENCE
3rd ADDL. SR. CIVIL 03-12- 30-12- PLAINTIFF
203/2017
JUDGE & A.C.J.M. 2019 2019 EVIDENCE
3rd ADDL. SR. CIVIL 30-12- 10-01- PLAINTIFF
203/2017
JUDGE & A.C.J.M. 2019 2020 EVIDENCE
3rd ADDL. SR. CIVIL 10-01- 21-01- PLAINTIFF
203/2017
JUDGE & A.C.J.M. 2020 2020 EVIDENCE
3rd ADDL. SR. CIVIL 21-01- 30-01- PLAINTIFF
203/2017
JUDGE & A.C.J.M. 2020 2020 EVIDENCE
3rd ADDL. SR. CIVIL 30-01- 31-01- PLAINTIFF
203/2017
JUDGE & A.C.J.M. 2020 2020 EVIDENCE
3rd ADDL. SR. CIVIL 31-01-
203/2017 Disposed
JUDGE & A.C.J.M. 2020
7.4 Thus, the matter was listed on nine occasions
for production of evidence. However, the appellant instead
of producing the evidence adopted all the techniques to
prolong the matter.
7.5 Instead of producing evidence, the appellant
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filed an application below Exhibit 50 seeking direction
against the Original Defendant demarcating vacate area
and submit a map showing the same before the learned
trial Court in accordance with the direction passed by this
Hon'ble Court in Appeal from Order. There was no
specific direction passed in Appeal from Order hence, the
said application was rejected.
7.6 After rejection of the said application below
Exhibit 50, the appellant with an intention to prolong the
matter sought adjournment for challenging the order
passed by the learned trial Court rejecting application
below Exhibit 50; however, the learned trial Court asked
the appellant to produce evidence. The appellant failed to
furnish sufficient cause for non - production of evidence
even after a year. Therefore, the learned trial Court drew
an adverse inference for non - production of documents.
7.7 The reliance is placed on Sections 2(2), 2(9),
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2(14) and Section 96(1), Order 20 Rule 5, 6 and 6A of the
Code of Civil Procedure, 1908 which are reproduced
hereinunder:-
"2(2) "decree" means the formal expression of an
adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of
the parties with regard to all or any of the matters
in controversy in the suit and may be either
preliminary or final. It shall be deemed to include
the rejection of a plaint and the determination of
any question within [***] section 144, but shall not
include-
(a) any adjudication from which an appeal lies
as an appeal from order, or
(b)any order of dismissal for default..."
Section 2(9) of the Code of Civil Procedure, which
defines, "Judgment" as under:
Section 2(9) of the Code of Civil Procedure,
which defines, "Judgment" as under:
(9) "judgment" means the statement given by the
Judge on the grounds of a decree or order;
Section 2(14) of the Code of Civil Procedure,
which defines "Order" as under:
"...(14) "order" means the formal expression of
any decision of a Civil Court which is not a
decree..."
"Section ...96. Appeal from original decree, -
(1) Save where otherwise expressly provided in
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the body of this Code or by any other law for
the time being in force, an appeal shall lie from
every decree passed by any Court exercising
original jurisdiction to the Court authorized to
hear appeals from the decisions of such Court.
5. Court to state its decision on each issue.- In
Suits in which issues have been framed, the
court shall state its finding or decision, with the
reasons there for, upon each separate issues,
unless the finding upon any one or more of the
issues is sufficient for the decision of the Suit.
"...6. Contents of decree - (1) The decree shall
agree with the judgment; it shall contain the
number of the suit, the names and descriptions
of the parties, their registered addresses, and
particulars of the claim, and shall specify
clearly the relief granted or other determination
of the suit.
6 - A. Preparation of decree - (1) Every
endeavour shall be made to ensure that the
decree is drawn up as expeditiously as possible
and, in any case, within fifteen days from the
date on which the judgment is pronounced.
(2) An appeal may be preferred against the
decree without filing a copy of the decree and
in such a case the copy made available to the
party by the Court shall for the purposes of rule
1 of Order XLI be treated as decree. But as
soon as the decree is drawn, the judgment shall
cease to have the effect of a decree for the
purposes of execution or for any other
purpose..."
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7.8 The impugned order passed by the trial Court
is an order dismissing the suit for default of the appellant
for not producing any evidence. Upon perusal of Section
2(2) of the Code of Civil Procedure, the legislature has
clearly provided that any order passed for dismiss for
default, does not fall under the ambit of the definition of
decree, and therefore, also considering the fact that under
Section 96(1) of the Code of Civil Procedure, an appeal
will lie only against a decree passed by any court
exercising original jurisdiction.
7.9 The respondents raised a preliminary objection
qua non - maintainability of the present Appeal as the
Appeal is not filed challenging the original decree. After
hearing the parties, this Hon'ble Court vide order dated
28.06.2023, granted time to the appellant to place on
record the decree passed by the Learned Court below
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while rejecting the suit.
7.10 The appellant preferred an application under
Order 17 Rule 3 before the learned 3 rd Additional Senior
Civil Judge, Surat being Civil Misc. Application No. 171 of
2023, requesting the learned Court to draw a decree. The
learned Court below vide its order dated 21.10.2023
rejected the application filed by the appellant under Order
17 Rule 3, by observing that any suit disposed off for
default of plaintiff need not draw decree, as the matter is
not disposed off on merits.
7.11 Learned senior counsel has placed reliance upon
the decision in the case of S. Satnam Singh versus Surender
Kaur; 2009 (2) SCC 562 and in the case of Nazir Ahmeda
Geni and Anrs. Vs. Mohama Geni and Ors. decided by the
Hon'ble Jammu and Kashmir High Court has laid down
the test on when an order passed by a court is a decree.
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7.12 Learned senior counsel for the respondents
submits that in absence of decree, First Appeal under
Section 96 of Code of Civil Procedure, is not maintainable,
and the present First Appeal, may be dismissed on the
very ground.
Submissions of learned advocate for Respondent Nos. 3, 4 and 5.
8. Learned advocate for respondent Nos.3, 4 and 5
submits that the First Appeal below Exhibits 1, 50 and 51,
is not a decree within the meaning of Section 2(2) of the
Code of Civil Procedure, 1908 and therefore, the present
appeal under Section 96 of the Code, is not maintainable.
It is submitted that unless Court decides rights and the
controversy between the parties by considering evidence,
impugned order cannot be termed as decree.
9. I have heard learned advocates for the
respective parties and gone through the materials available
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on record. The learned 6th Additional Senior Civil Judge,
Surat while dismissing the Special Suit No.203 of 2017 has
observed that though the sufficient opportunity is given to
the appellant-original plaintiff, the plaintiff did not
produce any evidence and sought adjournments after
adjournments.
10. At this stage, whether the Order impugned is a
decree or not can be answered by referring certain
provisions of Code of Civil Procedure. The definition of
decree has been defined in Section 2 of Sub-section 2 of
the Code of Civil Procedure, 1908 which clearly suggests
that there has to be an adjudication of the dispute and
there has to be a conclusive determination of the rights of
the parties with regard to the controversy in the suit. The
decree may be preliminary or final however, an order of
dismissal of default shall not be termed as a decree.
11. The judgment is defined in Section 2(a) of the
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Code of Civil Procedure, 1908. A statement given by the
Judge on the ground of the decree or order is a
Judgment. Order means formal expression of any decision
which is not a decree, is defined in Section 2(14) of the
Code of Civil Procedure, 1908.
12. Order IX refers the appearance of parties and
consequences of non-appearance. The reliance which has
been placed by the learned senior counsel for the
appellant that under order IX Rule 6(1)(a) gives a power
to the Court that when the plaintiff appears and defendant
does not appear when the suit is called on hearing then,
when the summons is duly served, the Court may make an
order to hear the suit ex parte.
13. Order IX Rule 8 refers to the situation where
the defendant appears and plaintiff does not appear. In
such eventuality, the Court has two options, first, the
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Court shall dismiss the suit unless the defendant admits
the claim and the Court shall pass a decree against the
defendant upon such admission and shall dismiss the suit
so far as reminder of the non-admitted claim by the
defendant.
14. Thus, the Court has power under Order IX Rule
8 to dismiss the suit if the plaintiff does not appear when
the suit is called on hearing in absence of any admission
by the defendant. When the Court has exercised power
under Order IX Rule 8, the remedy available to the
plaintiff is laid down under under Order IX Rule 9. Order
IX Rule 9 is reproduced hereinunder:-
'9. Decree against plaintiff by default bars fresh
suit.-
(1) Where a suit is wholly or partly dismissed
under rule 8, the plaintiff shall be precluded from
bringing a fresh suit in respect of the same cause
of action. But he may apply for an order to set
the dismissal aside, and if he satisfies the Court
that there was sufficient cause for his non-
appearance when the suit was called on for
hearing, the Court shall make an order setting
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aside the dismissal upon such terms as to costs or
otherwise as it thinks fit, and shall appoint a day
for proceeding with the suit.
(2) No order shall be made under this rule unless
notice of the application has been served on the
opposite party.
15. Thus, the restriction is cast upon the plaintiff
from filing a fresh suit in respect of the same cause of
action but at the same time, the remedy is also prescribed
to such plaintiff, to apply for an order to set the dismissal
aside upon satisfaction of a sufficient cause/s for non-
appearance when the suit is called on for hearing, the
Court has discretion to restore the suit upon such terms as
the Court things fit.
16. The procedure of the trial of the suit can also
be gathered from referring Order XVII Rule 2 and 3 of the
Code of Civil Procedure. Rule 2 of Order XVII lays down
the procedure when on the adjourned date parties or any
of them fails to appear, the Court has power to proceed to
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dispose of the suit as mandated under Order IX or make
such other order as things fit. However, the explanation to
the above Rule is that if the evidence or substantial
portion of the evidence of any party has been recorded
and such party fails to appear on the day of hearing, the
Court has a discretionary power to proceed with the case
presuming that the party were present.
17 Rule 3 of Order XVII prescribes a procedure
regarding a party, who has been granted time to produce
evidence and fails to produce such evidence or fails to
perform any other act necessary for the progress of the
suit. In such eventuality, the Court has two options, first
if the parties are present, the Court proceeds to decide the
suit forthwith or if the parties or any of them is absent to
proceed under Rule 2.
18. In the second eventuality, the Court has to rely
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upon the provisions of Rule 2 of Order XVII, wherein the
Court has to consider whether evidence or substantial
portion of the evidence of the parties have been recorded
or not, or in event of substantial evidence being recorded,
shall proceed with the case. But if the Court finds that
there is no evidence though the party was granted time to
produce the evidence and has failed to lead either
documents or oral evidence, the Court has a discretion to
adopt the modes directed under Order IX of the Code of
Civil Procedure, 1908.
19. In the present case, it is an admitted position
on record that the plaintiff was given number of
opportunity to produce the evidence and number of
adjournments to permit the plaintiff to proceed with the
trial of the suit; however the plaintiff neither produced
documents nor led any oral evidence to substantiate the
case put forth in the plaint. Thus, again the position is
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clear that there is no evidence available for the learned
trial Court whereby the Court can exercise the discretion
by applying the explanation to Rule 2 of Order XVII. The
learned trial Court, therefore, adopted the mode prescribed
in Order XVII Rule 3(b) and thereby resorted to the
provisions of Order IX Rule 8 of the Code of Civil
Procedure and dismissed the suit.
20. For adjudicating the issue/s, the parties must
adduce oral as well as documentary evidences and have to
prove the documents as per the provisions contained in
the Indian Evidence Act, mere averments made in the
plaint or Written Statement is no proof. And on mere
averments made in the plaint, Court could not opine on
merits.
21. In the Code wherever the word absence of a
party, is used, the intention of the legislature is not only
mere physical presence of the party in the Court without
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any participation in the proceedings. Even if a party is
represented by an Advocate, does not constitute
appearance of a party. The party said to have failed to
appear, even if physically present in the Court and does
not lead any evidence and seeks adjournments after
adjournments and tries to stall the proceedings. It would
amount to absence of such party. In such eventuality, the
Court is not powerless and cannot just adjourn the trial
simplicitor. The Court has every power to dismiss the suit
of the plaintiff by resorting to Order XVII Rule 3(b) of the
Code of Civil Procedure and the Court shall proceed under
Rule 2 of Order XVII of the Code of Civil Procedure. And
eventually dismiss the suit under the provisions under
Order IX Rule 8 of the Code of Civil Procedure.
Whenever, the Court exercises its power under Order-IX
Rule 8 of the Code of Civil Procedure, the plaintiff has a
remedy by resorting the provisions contained under Order-
IX Rule 9 of the Code.
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22. The proper adjudication of dispute can only be
said when the Court has taken into consideration not only
the averments made in the plaint and Written Statement
but the documents and oral evidences.
23. Upon proper adjudication of the disputes, final
judgment is pronouncement by the Court and upon such
pronouncement of the judgment, decree is being drawn
which can be carried it into an appeal.
24. In the present case on hand, the Court had no
occasion to either deal with or to consider the
documentary evidence and the oral evidence of the parties
since there was no evidence on record.
25 In the present case, the explanation under Order
XVII Rule 2 of the Code, is not applicable since the
plaintiffs have not produced any evidence. There was no
evidence on record available whereby the Court can
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proceed with the case and decide the suit on merits.
26. Section 96(1) clearly points out that an appeal
shall lie from every decree passed by Court. So the
condition precedent is drawing of a decree in the case of
invoking provisions under Section 96(1) of the Code of
Civil Procedure.
27. Section 2(2) of the Code of Civil Procedure
defines decree and it clearly envisages that for a decree
there has to be a formal expression of an adjudication and
conclusiveness and determination of the rights of the
parties with regard to the matter in controversy. The
Order of dismissal of default does not mean to be a
decree. The judgment means a statement given by a Judge
upon the controversy existed between the parties. The
position in the present case is clear that there is no
adjudication or determination of the rights or of the
controversy of the parties. For pronouncement of judgment
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there has to be a finding of fact on all the issues.
28. The submission of automatic single line
judgment canvassed by the learned senior counsel for the
appellant has no force since if such an practice is adopted
by the Courts below it would lead to chaos and would
lead the provisions of Indian Evidence Act redundant. This
court has also taken into consideration that an application
to draw a decree under the provisions of Order XVII Rule
3 also came to be rejected by 3 rd Additional Senior Civil
Judge, Surat vide order dated 21.10.2023 by observing
that the suit was disposed of for default of plaintiff and
the suit has not disposed of on the merit hence, decree
cannot be drawn. Against such order, the present appellant
has preferred Special Civil Application before this Court,
which is pending for Admission as on today.
29. The decisions relied upon by the learned Senior
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Counsel for the appellant, are not applicable to the
peculiar facts of this case.
30. In the case of S.Satnam Singh (supra), relevant
paragraphs are reproduced hereinunder:
"...14. A 'decree' is defined in Sec. 2(2) of the
Code of Civil Procedure to mean the formal
expression of an adjudication which, so far as
regards, the Court expressing it, conclusively
determines the rights of the parties with regard
to all or any of the matters in controversy in the
suit. It may either be preliminary or final. It
may partly be preliminary and partly be final.
The court with a view to determine whether an
order passed by it is a decree or not must take
into consideration the pleadings of the parties
and the proceedings leading up to the passing of
an order. The circumstances under which an
order had been made would also be relevant.
15. For determining the question as to whether
an order passed by a court is a decree or not, it
must satisfy the following tests:
(i) There must be an adjudication;
(ii) Such adjudication must have been given in a
suit;
(iii) It must have determined the rights of the
parties with regard to all or any of the matters
in controversy in the suit;
(iv) Such determination must be of a conclusive
nature; and
(v) There must be a formal expression of such
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adjudication..."
31. In the case of Nazir Ahmad Ganie (supra), the
Hon'ble Jammu and Kashmir High Court, has held as
under:-
"...Section 96 (1) CPC provides that the person
aggrieved of the decree passed by the civil court
exercising original jurisdiction can file an appeal.
Section 96 (2) states that an appeal may lie from
an original decree passed ex-parte. Section 96 (3)
states that no appeal shall lie from a decree
passed by the court with the consent of parties.
Section 96 (4) speaks of the appeal against a
decree passed by the Courts of Small Causes lie
only when the amount or value of the subject
matter of the original suit does not exceed
Rs.10,000/-. All sub-sections of Section 96
embrace of word "decree" passed by court in
exercise of original jurisdiction.
5. Order 20 Rule 6 (A) CPC provides that an
appeal may be preferred against the decree
without filing a copy of the decree and in such a
case the copy made available to the party by the
court shall for the purposes of Rule 1 of Order
41 be treated as the decree. However, a caveat
is attached to this provision in sub-rule (2) of
Rule 6 (A) as the said clause.
clearly mentions that as soon as the decree is
drawn the judgment shall cease to have the
effect of a decree for the purposes of execution
or for any other purpose.
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6. It may be noted herein that prior to the year
2009 as obtained in the Civil Procedure Code
applicable to the State of Jammu and Kashmir
the words "Judgment" in Section 96 CPC was
conspicuous by its absence meaning thereby that
the decree sheet was required to be annexed
with the appeal.
7. The provisions stated above amply make out
that the appellant is required to challenge the
decree and not the judgment passed by the court
of original jurisdiction. The legislature has
purposely mentioned the word "decree" which is
required to be challenged in the appeal and not
the judgment. The appellant if waits for a long
seven years to challenge the decree by just filing
an application for amendment that cannot be
allowed. It would be an easy way to defeat the
provisions of law which are mandatory in
nature. Infact no appeal can be said to have
been filed without challenging the decree passed
by the court. It is not the case herein that the
decree was not prepared when the appeal was
preferred by the appellant before the appellate
court. The argument of the learned counsel for
the appellant that the first appellate court should
have pointed out the deficiency of the decree of
the trial court having been not challenged or
that the decree sheet having not been placed on
record is the argument which prima facie
requires outright rejection. It is not for the court
to advise the appellant to make necessary
incorporation in the appeal..."
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32. In the present case, it is not a rejection of
plaint but it is the dismissal of the suit by invoking the
provisions of Order-IX Rule 8 of Code of Civil Procedure,
1908.
33. The learned trial Court had no occasion to deal
with the evidence of the parties. Thus, the order
impugned is not a decree and hence, the appeal would not
lie. Thus, the present Appeal fails.
Order in Civil Application (For Stay) No.1 of 2020.
In view of the order passed in the main matter i.e.
First Appeal No.1241 of 2020, the present Civil Application
does not survive and stands disposed of accordingly.
(D. M. DESAI,J)
MANOJ
