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Whether decree passed by court without recording evidence of defendant is exparte decree?


Civil Revision Petition No. 115/1994

Decided On: 13.02.1997

Smt. Ansari Sakeenabi
Maligi Moideensab and others

Hon’ble Judges/Coram: Mohammad Anwar, J.

Citation: AIR 1997 Karat 339

1. This revision is directed against the order dated 6-1-1993 in I.A. No. 16/1991 of the court below passed dismissing the petitioner’s appeal and confirming the order of the learned Munsiff, Siruguppa dated 3-9-1991 which was passed by him dismissing the application filed under Order 9, Rule 13, C.P.C.

2. The relevant facts leading to this revision are as follows :

The suit in O.S. No. 143/1986 for recovery of possession of the suit house from petitioner’s late husband Ansari Usman Saheb (defendant) was filed by the respondent Malige Mohideen Sab (plaintiff) since deceased. That suit came to be decreed on 2-2-1989. Later the defendant died on 12-3-1989. Thereafter, the petitioner his wife, made the application under Order 9, Rule 13, CPC before the trial Court to set aside the said decree stating that it was an ex parte decree passed against her husband who for good reasons was unable to attend the court on few hearing dates preceding the date of said decree since he died of cancer while under treatment. Her said application was registered in Misc. Case No. 4/89 on the file of the trial court on plaintiff’s death he was represented by his legal representatives who contested her said application. During enquiry on the application petitioner deposed herself as PW 1 and produced the material documents Ex. P1 to P3. From respondents’ side, one of them was examined as RW 1 and Ex.R1. Certified copy of the order sheet in O.S. 143/86 was produced in the said Misc. Case No. 4/89.

3. Appreciating the relevant material, both the courts below look the view that the decree passed in the case was not an ex parte decree and therefore, application filed by the petitioner under Order 9, Rule 13, CPC was dismissed as not maintainable.

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4. Therefore, the decision in this revision rests on determination of a short point : Whether the decree in question is an ex parte decree in the circumstances in which it has come to be passed by the trial court.

5. Order 9, Rule 13, CPC governs setting aside of an ex parte decree passed against defendant.

Rules 2 and 3 of Order 17, CPC lay down the procedure to be followed by the trial Court in a suit if parties or any of them fail to appear on the adjourned date of hearing or when either party fails to produce evidence.

6. On consideration of the material provisions under Order 17, Rule 2 and Rule 3(b) read with Order 9, Rule 13, of C.P.C. I find that both the courts below have misconceived these relevant provisions and misdirected themselves in reaching the erroneous conclusion that the said decree is a decree passed on merits and not an ex parte decree attracting application of Order 9, Rule 13, CPC.

7. To correctly appreciate this legal aspect of the matter it is essential to make a combined reading of the aforesaid relevant provisions which are quoted below :

Order 17, Rule 2 :

“2. 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.”

Rule 3 :

“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 lime 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.”

The material portion of Order 9, Rule 13, C.P.C. is as extracted below :

“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 sail 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 …..”

8. No doubt, the plaintiff’s suit was contested by defendant at its earlier stages and till the plaintiff’s evidence was recorded, but he failed to appear on the subsequent dates of. hearing and remained absent, of course for valid reason, when the sail was set down for his evidence. Then the suit was decreed by the trial court on the basis of plaintiff’s evidence only. It is not the case that defendant remained absent in the suit after any portion of his evidence was recorded in which event alone the trial court could have disposed of the suit treating him as present as envisaged by Explanation to Rule 2 of Order 17, C.P.C. Read in the context of this Explanation, sub-clause (b) of Rule 3 of Order 17, C.P.C. makes the legal position clear that when a party to the suit remains absent without leading any evidence, the trial court is enjoined by Rule 2. Order 17 to proceed to dispose of the suit in one of the modes stipulated in Order 9, C.P.C. As a necessary legal corollary it follows that any decree passed by the trial Court disposing of the suit on the basis of plaintiff’s evidence only due to non-appearance of contesting defendant at subsequent stages in the suit and on his failure to lead his evidence, is an ex parte decree against him and not a decree on merits. In view of this emerging legal position the decree in the instant case has to be treated as an ex parte decree and not as decree passed on merits. Therefore, the application under Order 9, Rule 13, C.P.C. made by the petitioner before the trial court in Mis. Case No. 4/89 seeking to seaside the decree inquest ion was maintainable in law; and the trial court as well as the lower appellate court have clearly erred in taking the contrary view and passing the impugned orders dismissing the said application. As such, the revision is entitled to succeed.

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9. For the reasons aforesaid, the revision petition is allowed. The impugned order dated 3-9-1991 of the trial court passed in Misc. Case No. 4/ 89 and the impugned judgment of the lower appellate court in Misc. Appeal No. 17/81 dated 6-1-1993 are set aside. The trial court is directed to restore to its file the said Misc. Case No. 4/1989 and to dispose of the petitioner’s application filed under Order 9, Rule 13, C.P.C. on its own merits.

Parties to bear their own costs.

10. Petition allowed.

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