1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 44 OF 2010 Deogir s/o Madhav Giri ...Appellant Versus Marathwada Gramin Bank Limited and others ...Respondents ..... Mr. S.S. Halkude, advocate for the appellant Mr. M.M. Patil Beedkar, advocate for respondent No.1. ..... CORAM: S. S. SHINDE, J. DATE OF RESERVATION OF JUDGMENT : 08 .09.2010 DATE OF PRONOUNCEMENT OF JUDGMENT : 15.09.2010 PER COURT:- 1 This appeal From Order is filed challenging the judgment and order dated 21.7.2005 below Exh.23 in M.A. No. 195 of 2004 by the learned C.J.S.D. Latur in Special Civil Suit No. 85 of 2000. 2 The appellant herein is the original defendant, against whom the respondent Bank has filed suit for recovery of an amount of Rs.2,10,914/- which was borrowed for purchase a tempo. The respondent Nos. 2 and 3 herein are the guarantors to the said loan 2 transaction. According to the respondent Bank, loan of Rs.1,00,000/- was sanctioned to the appellant on 23.3.1989, The said amount was disbursed on 27.3.1989. The appellant herein failed to repay the amount with interest. Hence, the Bank issued notice through advocate on 12.8.1999. Even after considerable period, the appellant did not make the payment. Hence, the bank has filed Special Civil Suit No. 85 of 2000 on 7.6.2000 in the court of learned C.J.S.D. Latur for recovery of Rs.2,10,914/- with interest @ Rs.17% p.a. with quarterly rests. 3 The appellant herein filed written statement in the said suit on 8.2.2001. The trial court framed necessary issues on 20.8.2001. The case was posted for hearing on 25.1.2002 for submission of list of witnesses by the plaintiff. On 26.6.2003, the matter was posted for hearing. On that date, neither the defendant nor his advocate remained present. The matter was adjourned to 10.7.2003. On the said date, the evidence of the plaintiff came to be recorded. On 17.7.2003, pursis for completion of evidence came to be filed on behalf of the plaintiff. On 4.8.2003, the date was fixed for recording of evidence of defendant. However, neither defendant nor his advocate remained present and therefore, the Court passed an order of no evidence by the defendant and the matter was posted for final hearing and arguments. On 4.11.2003, the Court pronounced the judgment. According to the petitioner, the said decree was exparte decree. 3 On 13.9.2004, the appellant herein filed M.A. No. 195 of 2004 for setting aside the exparte decree. The said application was filed under Order IX Rule 13 of C.P.C. On 21.7.2005, the said application for setting aside exparte decree came to be rejected. Aggrieved by the said order, the appellant had filed writ petition No. 8378 of 2005. The said writ petition was allowed to be withdrawn with liberty to file Appeal From Order. The appeal from order was accordingly filed accompanied with an application for condonation of delay. The said application for condonation of delay was allowed. Hence, this Appeal from Order. 4 Learned counsel appearing for the appellant submitted that the application filed for setting aside the exparte decree has been rejected by the trial court on the ground that said application is not maintainable. Learned counsel submitted that the trial court has committed error in holding that application under Order IX Rule 13 is not maintainable as the decree passed by the trial court is not exparte decree and the said decree came to be passed after recording evidence of plaintiff and after filing written statement on behalf of the defendant i.e. present appellant. According to the counsel for the appellant, sufficient cause was disclosed before the trial Court for not attending the proceeding in Civil Suit, still the trial court without looking 4 into the merits of the application, which was filed for setting aside the exparte decree, has rejected the said application holding that it is not maintainable Under Order IX Rule 13 of C.P.C. Learned counsel further submitted that the trial court has not considered the view expressed by the Hon’ble Supreme Court in the case of Prakash Chander Manchanda and Anr. Vs. Smt. Janki Manchanda, reported in AIR 1987 SC 42. Learned counsel for the appellant has also placed reliance on the following judicial pronouncements and submitted that the decree passed by the trial Court in Special Suit is an exparte decree and application under Order IX Rule 13 was maintainable. i) Balu @ Madhavrao Shankarrao Ghorpade since deceased by his LRs, Ajay Madhavrao Ghorpade and others. Vs. Radhakkabai Panditrao Ghorpade and others, reported in 2004(1) Mh.L.J. 323 ii) Trimurthy Packing Paper Vs. Corporation Bank and others, reported in [2008(3) Civil L.J. 777], iii) Mahesh Yadav and another Vs. Rajeshwar Singh and others, reported in (2009) 2 SCC 205, 5 On the other hand, learned counsel appearing of respondent Bank submitted that once the written statement filed by the defendant 5 and after recording of evidence of the plaintiff, on proper application of mind, decree is passed by the trial court in the suit, in that case, it cannot be said that the said decree is exparte decree. Learned counsel relied on the reasons recorded by the trial court while rejecting the application for setting aside the decree. Learned counsel in support of his contention placed reliance on the reported judgment of this Court in the case of Himachal Pradesh Co-operative Marketing and Development Federation Ltd. Vs. M/s. Mafco Limited, Pune, reported in 2000 (2) Mh.L.J. 317 and in the case of Ramchandra s/o Ramgopal (M/s.) through Jugalkishore s/o Navalkishore Kothari Vs. Kamalkishore s/o Onkarmal Rungta and others, reported in 2005 (2) Mh.L.J. 623. Learned counsel further submitted that the decree was passed by the trail court on 4.11.2003 and the proceeding for execution of the said decree is filed in the year 2005. The decreetal amount is Rs.2,10,914/-. Learned counsel would submit that at least the appellant should be directed to deposit the decreetal amount with interest if at all this court favourably considers the appeal filed by the appellant. Counsel further submitted that since it is a money decree, this Court may not interfere in the impugned order. 6 I have given due consideration to the rival submissions advanced on behalf of the parties. I have also carefully perused the provisions of Order IX Rule 13 of C.P.C. In case of Prakash Chander 6 Manchandan and another (supra), it is held that if on a date fixed, one of the parties to the suit remain absent and for that party no evidence has been examined upto that date, the Court has no option but to proceed to dispose of the matter in accordance with Order XVII Rule 2 in any one of the modes prescribed under Order IX of C.P.C. After the Amendment by Act 104 of 1976 to Order XVII Rr. 2 and 3 in cases where a party is absent only course is as mentioned in Order XVII Rule 3(b) to proceed under Rule 2. Therefore, in absence of the defendant, the Court had no option but proceed under R. 2. Similarly, the language of Rule 2 as now stands also clearly lays down that if any one of the parties fails to appear, the court has to proceed to dispose of the suit in one of the modes directed under O. 9. The explanation to Rule 2 gives a discretion to the court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. In para 7 and 8 it is further held that in such a case, the Court cannot proceed to dispose of the suit on merits and after it proceeds to dispose of the suit in any one of the modes provided under Order IX in the present case to pass ex-parte decree, the defendant can subsequently file an application under Order IX Rule 13 for setting aside ex parte decree (emphasis supplied). 7 7 Taking into consideration the aforesaid judgment of the Hon’ble Supreme Court in the case of Prakash Chander Manchanda and Anr. (supra), this Court in the case of Trimurthy Packing Paper (supra), in para 8 held that since the suit in that case has been disposed of by resorting to any of the modes prescribed in Order IX of C.P.C. In the light of the Apex Court judgment in the case of Prakash Chander Manchanda and Anr. (supra), application under Order IX Rule 13 of C.P.C. would be maintainable for setting aside the exparte decree. Yet in another reported judgment of this Court in the case of Balu @ Madhavrao Shankarrao Ghorpade since deceased by his LRs, Ajay Madhavrao Ghorpade and others. Vs. Radhakkabai Panditrao Ghorpade and others, reported in 2004(1) Mh.L.J. 323 held that the application for setting aside exparte decree under Order IX Rule 13 is maintainable if the defendant did not appear on the date of hearing and no evidence was led on behalf of the defendant. The judgment and decree passed by the court on uncontroverted evidence of the plaintiff would be exparte and not an order on merits. In that case also written statement was filed by the defendant in the suit. The Hon’ble Supreme Court in the case of Mahesh Yadav and 8 another Vs. Rajeshwar Singh and others, reported in (2009) 2 SCC 205, held that the application for setting aside exparte decree is maintainable under Order IX Rule 13 of C.P.C. In that case also, the original defendant who was petitioner before the Hon’ble Supreme Court, did file written statement. 8 Therefore, from perusal of the judgments of the Apex Court and this Court, it follows that if the defendant did not appear on the date of hearing and no evidence was led on behalf of the defendant, the judgment and decree passed by the court on uncontroverted evidence of plaintiff would be exparte and not an order on merits. Though the written statement was filed by the present appellant in the suit, however, it is undisputed position that the date which was fixed for recording of evidence of the defendant, i.e. appellant herein, neither defendant nor the advocate for the defendant were present before the court. It is an undisputed position that after filing written statement in the main suit neither the defendant nor advocate for the defendant remained present or participated on subsequent dates fixed for recording of evidence or for hearing of the suits. Therefore, the trial court was not correct in holding that the decree which came to be passed on 4.8.2003 in Special Civil suit No. 85 of 2000 was not exparte decree, therefore, in the light of the judgment of the Hon’ble Supreme Court in the case of Prakash Chander Manchanda and 9 another (supra) the case of the appellant is required to be accepted. 9 Though the learned counsel appearing for the respondent has placed reliance on the judgment of this Court in the case of Himachal Pradesh Co-operative Marketing and Development Federation Ltd. (supra), however, on perusal of the said judgment, it appears that this Court has not noticed the judgment of the Hon’ble Supreme court in the case of Prakash Chander Manchanda and Anr. (supra) and another judgment in the case of Ramchandra Ramgopal (M/s.) through Jugalkishore s/o Navalkishore Kothari (supra). In the light of the authoritative pronouncements by the Hon’ble Supreme court on the issue involved in the present matter, this Court has no option but to accept the case of the appellant. 10 Though the counsel for the respondent Bank has justifiably argued that the appellant should be directed to deposit the decreetal amount, however, in my opinion, the said prayer is beyond the scope of present Appeal From Order and thus the same cannot be entertained. 11 In this view of the matter, the impugned order dated 21.7.2005, passed below Exh.23 by the learned C.J.S.D. Latur in M.A. No. 195 of 2004 in Special Civil Suit No. 85 of 2000 is quashed and set aside. 10 The Misc. application No. 195 of 2004 is restored to its original position. It is clarified that the said application under Order IX Rule 13 is maintainable. The concerned court to hear and decide the said application on merits in accordance with law, within a period of one month from the date of receipt of the copy of this order. 12 Needless to mention that all contentions, which are to be agitated, on merits, are kept open, during the course of hearing of the application for setting aside the exparte decree. 13 The original record, if any, be sent back forthwith to the concerned Court. 14 Copy of this order be transmitted to the concerned court forthwith. *****