HIGH COURT OF UTTARAKHAND, NAINITAL Writ Petition No.874 of 2010 (M/S) Smt. Ritu Pistritto W/o J. C. Pistritto ……… Petitioner Versus Swatantra Kumar S/o late Govind Ram Kapoor ……… Respondent Dated:- 09th July, 2010 Hon’ble Tarun Agarwala, J. Heard Mr. Sidhartha Singh, the learned counsel duly assisted by Mr. D. Barthwal, the learned counsel for the petitioner and Mr. Ramji Srivastava, the learned counsel duly assisted by Mr. Deepak Sharma, the learned counsel for the respondent. 2. The present writ petition has been filed against the order dated 29.05.2010 passed by the District Judge, Dehradun in Misc. Civil Appeal No.76/2010, whereby the District Judge allowed the appeal and has set aside the order passed under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as ‘C.P.C.’) and has further set aside the decree passed by the trial court. 3. The essential facts, which led to the passing of the decree by the trial court is, that on 31st March, 2009, the right to adduce the evidence of the plaintiff was closed and the trial court fixed 20th April 2009 for the evidence in chief of the defendant. The affidavit of the defendant and evidence was filed by the defendant on 23rd April, 2009 and the court fixed 26th May, 2009 for the cross examination of the defendant. It transpires that on 26th March, 2009 the plaintiff filed an application for the recall of the order dated 31st March, 2009. This application was allowed by an order dated 29th May, 2009 and the plaintiff was directed to file her evidence on affidavit on payment of cost of Rs.1000/- on or before 07th July, 2009. The trial court fixed 07th July, 2009 for the cross examination of the plaintiff. 2 4. It transpires that the trial court became vacant and accordingly, the case could not proceed on 07th July, 2009. The ordersheet indicates that various dates were fixed on account of the vacancy of the court. In this regard, the plaintiff filed a writ petition No.1405 of 2009 (M/S) alleging that she was leaving for the United States of America on 30th August, 2009 and that a direction be issued that her cross examination may be recorded by the trial court on or before 30th August, 2009. The writ court disposed of the said writ petition at the admission stage itself without issuing notice to the defendant, by an order dated 25th August, 2009 directing the trial court to cross examine the plaintiff petitioner before she leaves for the United States of America. 5. It transpires that the order of the High Court was filed before the trial court on 27th August, 2009. Since the trial court was vacant, the file was placed before the District Judge, who by an order of the same date, transferred the case to the court of the Vth Additional Civil Judge (S.D.), Dehradun. The relevant file was placed before the court on 28th August 2009 and the trial court issued notice to the counsel for the defendant as required under Rule 89-A of the General Rule (Civil) intimating him that the case would be taken up on 28th August, 2009. The process server intimated the court that the counsel for the defendant Sri J. K. Jain could not be found and that his Munshi (Clerk) had orally informed that Sri J. K. Jain was no longer appearing as the counsel for the defendant and that the file of the case had been taken away by the defendant. In the light of the report submitted by the process server, the court below found that the notices had not been served and issued directions for the issuance of a fresh notice and fixing 29th August, 2009 as the next date. On 29th August, 2009, the process server again submitted a report intimating that the chamber of Sri J. K. Jain was locked and, therefore, the notices could not be served. In the light of this report, the court fixed 31st August, 2009 and directed that fresh 3 steps be taken for the issuance of notice to the counsel for the defendant. 6. On 31st August, 2009, the plaintiff moved an application 20C praying that, by an error, the affidavit of plaintiff in chief could not be filed earlier pursuant to the order of the trial court dated 29th May, 2009 and, therefore, prayed that the permission may be granted to file the affidavit. The court below, after considering the matter, allowed the application and took the affidavit of the plaintiff in chief on record and posted the matter after lunch for the cross examination of the plaintiff. After recess, the ordersheet of the trial court indicates that the notices were sent to the defendant’s counsel and that the clerk of Sri J. K. Jain orally intimated that Sri Jain has no instructions and that the file had been taken away by the defendant. On this noting, the trial court passed an order holding that sufficient notice has been served upon the defendant and that it seems that the defendant’s counsel was not interested in cross-examining the plaintiff. The trial court, accordingly, directed that the evidence of the plaintiff stands closed and fixed 04th September, 2009 for the cross examination of the defendant. The ordersheet indicates that the defendant nor his counsel appeared on 04th September, 2009 or on subsequent dates. Eventually, the trial court heard the matter and reserved the judgment on 14th September, 2009 and fixed 15th September, 2009 for delivery of judgment. On 15th September, 2009, the judgment was delivered and the suit was decreed and the counter claim of the defendant was dismissed. The ordersheet of the trial court further indicates that an application alongwith the fresh vakalatnama of a new counsel was filed after the judgment was reserved on 14th September, 2009 and that the said application for adjournment was rejected for want of prosecution on the same date in the absence of the counsel. 7. On 22nd September, 2009, the defendant filed an application under Order 9 Rule 13 of the C.P.C. praying for the recall of the exparte 4 decree dated 15th September, 2009 and further prayed that the matter may be heard on merits. This application was rejected by the trial court by an order dated 14th May, 2010 against which the defendant preferred a miscellaneous appeal under Order 43 Rule 1(d) read with Section 151 C.P.C., which was allowed by the impugned judgment dated 29th May, 2010 on payment of cost and the order of the trial court dated 14th May, 2010 was set aside. The appellate court directed that the defendant would be given an opportunity to contest the case on merits. The plaintiff, being aggrieved by the said order, has filed the present writ petition. 8. The learned counsel for the petitioner submitted that the judgment passed by the trial court was on merits and therefore, no application for setting aside the decree was maintainable under Order 9 Rule 13 of the C.P.C. The learned counsel for the petitioner submitted that since the decree was on merit, only a regular appeal under Section 96 of the C.P.C. could have been preferred by the defendant, which in the present case was not done. The learned counsel for the petitioner further submitted that the counsel for the defendant had knowledge of the proceedings before the trial court, but, deliberately chose not to appear. Consequently, the court below rightly proceeded and delivered the judgment on merit. The learned counsel further submitted that substantial evidence in any case was recorded and, therefore, even assuming that the provision of Order 17 Rule 3 C.P.C. was not applicable, the order was passed on merit under the Explanation to Order 17 Rule 2 C.P.C. The learned counsel further submitted that assuming without admitting that the order passed by the court below was an exparte decree, nonetheless, the defendant was required to file two applications under Order 9 Rule 13 of the C.P.C. for the recall of the exparte decree as well as for the recall of the order by which the counter claim of the defendant was also rejected. The learned counsel for the petitioner submitted that since no application for the recall of the 5 order by which the counter claim was rejected was not preferred, the issue deciding the counter claim became final which operated as res judicata and, consequently, the application under Order 9 Rule 13 of the C.P.C. could not be allowed. In support of his submission, the learned counsel for the petitioner placed reliance upon a decision of the Supreme Court in Harbans Singh & others Vs. Sant Hari Singh & others 2009 (2) SCC 526. 9. The learned counsel for the petitioner also submitted that under Order 3 Rule 4 of the C.P.C. a pleader cannot withdraw the vakalatnama unless leave was granted by the trial court, which in the present case was neither asked nor was it granted. The learned counsel further submitted that since the defendant’s counsel refused to accept notice on the ground of no instructions, the same was inadequate and in the absence of leave being taken under Order 3 Rule 4 of the C.P.C., the counsel for the defendant continued to represent the defendant and, on this ground, the defendant had deemed knowledge of the proceedings, consequently, the application under Order 9 Rule 13 C.P.C. could not have been allowed. In support of his submission, the learned counsel for the petitioner placed reliance upon a decision of the Division Bench of the Allahabad High Court in Smt. Veena Agarwal @ Veena Garg Vs. M/s Unjha Ayurvedic Pharmacy through Nitin Shah Partner & others 2007 (67) A.L.R. 282. 10. The learned counsel for the petitioner submitted that the appellate court has not set aside the specific findings given by the trial court nor has given any reason while allowing the appeal as well as the application under Order 9 Rule 13 of the C.P.C., consequently, the judgment of the appellate court was manifestly erroneous in law and was liable to be set aside. In support of his submission, the learned counsel for the petitioner placed reliance upon a decision of the Supreme Court in Mahesh Yadav & another Vs. Rajeshwar Singh & others 2009 (2) SCC 205. In the end, the learned counsel for the 6 petitioner submitted that the application under Order 9 Rule 13 of the C.P.C. was defective since the said application was not verified in consonance with the provisions of Order 6 Rule 15 of the C.P.C. 11. On the other hand, the learned counsel for the defendant submitted that the entire proceedings taken by the trial court pursuant to the direction of the High Court were exparte proceedings and that the order passed by the trial court was an order passed under Order 17 Rule 2 of the C.P.C. and consequently the application under Order 9 Rule 13 of the C.P.C. was maintainable. The learned counsel further submitted that the court below was vacant and the case was transferred by an order of the District Judge. Under Rule 89-A of the General Rule (Civil), it was imperative for the trial court to issue notice not only to the counsel of the defendant, but also to the parties. The learned counsel submitted that the ordersheet will make it apparently clear that neither the counsel for the defendant was served nor the parties were served and, consequently, the entire matter proceeded exparte against which the application under Order 9 Rule 13 of the C.P.C. was maintainable. In support of his submission, the learned counsel placed reliance upon a decision of the Supreme Court in Malkiat Singh & another Vs. Joginder Singh & others 1998 (Suppl.) S.C. 463 in which it was held that if on the date of hearing, the counsel withdraws from the case, then interest of justice required that a fresh notice for actual date of hearing should be sent to the parties. The learned counsel further submitted that the application under Order 9 Rule 13 of the C.P.C. was a composite application for the recall of the exparte decree as well as for the recall of the order dismissing the counter claim and such composite application was maintainable and that it was not necessary that two separate applications for the recall of the order was required to be filed. The learned counsel for the respondent further submitted that the application under Order 9 Rule 13 of the C.P.C. was supported by an affidavit in which the verification clause was indicated 7 and that the application was in consonance with the provisions of Order 6 Rule 15 C.P.C. 12. In the light of the aforesaid stand taken by the parties, the crucial question which is required to be answered in the present dispute is, whether the trial court has proceeded with the case under Order 17 Rule 3 of the C.P.C. or whether it has proceeded and disposed of the suit on merit under the Explanation to Order 17 Rule 2 or whether the trial court has proceeded under Order 17 Rule 3 of the C.P.C. 13. The question as to whether the court has proceeded under Order 17 Rule 2 or under Rule 3 has been a bone of contention for several decades on account of the language employed. There always remained a doubt in the mind of the litigant as to which remedy he should prefer, namely, if it is an exparte decree he should file an application under Order 9 Rule 13 and if the order is on merit he has to prefer a regular appeal under Section 96 of the C.P.C. No doubt, there is a gray area in reading the provisions of Order 17 Rule 2 & 3 and there is a need that the Rules Making Committee of the High Court and the State Legislature should rectify this anomaly so that recourse against an order is simplified. To a large extent, this controversy has been set at rest by various decisions of the Allahabad High Court and most important one is a decision of the Full Bench in the matter of M. S. Khalsa Vs. Chiranji Lal & others AIR 1976 Allahabad 290, wherein the Full Bench, after considering all the amendments made till date, gave its reasoning as to when an application under Order 9 Rule 13 of the C.P.C. would be maintainable and when an order could be presumed to have been purported to have been passed under the Explanation to Order 17 Rule 2 or an order under Order 17 Rule 3. 14. Before proceeding further, it would be appropriate to extract the provision of Order 17 Rule 2 and 3 as applicable in the State of Uttar Pradesh as amended by the Allahabad High Court from time to time as 8 well as the provision of Order 9 Rule 13 which are extracted hereunder:- “Order 17 Rule 2. Procedure if parties fails to appear on day fixed. – Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. Explanation.- Where the evidence, or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on such day, the Court may, in its discretion, proceed with the case as if such party were present, and may dispose of it on the merits. Explanation.- No party shall be deemed to have failed to appear if he is either present or is represented in court by agent or pleader, though engaged only for the purpose of making an application. Order 17 Rule 3. Court may proceed notwithstanding either party fails to produce evidence, etc.- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the Court may, notwithstanding such default,- (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under Rule 2] Order 9 Rule 13. Setting aside decree exparte against defendant. – In any case in which a decree is passed exparte against a defendant, he may apply to the Court by which the decree was passed for an order to set it 9 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 that no Court shall set aside a decree passed exparte 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 exparte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that exparte decree.” 15 Needless to say that the provisions of the C.P.C. as applicable to the Uttar Pradesh is also applicable to the State of Uttarakhand pursuant to Section 89 of the Reorganisation Act, 2000. An analysis of Rule 2 of Order 17 as extracted aforesaid would show that it would be attracted in two cases, which comes up for hearing on a date which was fixed after adjournment of the suit on a previous day and that the parties or any one of them fail to appear on the date so fixed. The explanation to Order 17 Rule 2 stipulates that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on the date fixed, in that event, the Court has the 10 discretion to proceed with the case as if the party was present and may dispose of the suit on merits. The second Explanation further places a legal fiction and indicates that if a party is represented in a court by an agent or a pleader though engaged for only for the purpose of making an application, the said party will be deemed not to have failed to appear. 16. Order 17 Rule 3 of the C.P.C. clearly contemplates that it will only apply if Rule 2 of Order 17 C.P.C. does not apply and can only be resorted when a party to whom the time was given to produce evidence or to give attendance of his witness or to perform any other act necessary to the further progress of the suit for which time was allowed, is actually present on the date fixed, but, fails to do any of the acts so mentioned aforesaid, in that event, if the parties are present the court will decide the suit forthwith or if the parties are or any one of them fail to appear, then proceed under Rule 2. 17. Thus, a bare reading of Rule 2 and 3 of Order 17 C.P.C. indicates that Rule 3 could only apply when the party concerned is present on the adjourned date or is deemed to be present under the Explanation to Rule 2. The difference between the applicability of Rule 2 and 3 of Order 17 is basically dependant upon the failure of a party to appear on a particular date and a party appearing before the court and not doing that act for which it had taken adjournment from the court on a previous occasion. Once a party fails to appear, Rule 2 will come into play and the court has recourse to pass an order under Order 9 or such other order as it thinks fit. However, the provision of Order 17 Rule 3 does not entitle the court to fall back on Order 9. If a party fails to appear on the adjourned date, Rule 3 of Order 17 would not apply even though the said party may have omitted to do any of the acts mentioned in Rule 3 and even though such party may have taken time on a previous occasion to do so. Under the Explanation to Order 17 Rule 2, if the evidence of a substantial portion of a party has already been recorded 11 and such party fails to appear on the date fixed, the court has a discretion to proceed with the case as if such party was present and may dispose of the suit on merit. The second Explanation by a fiction makes a party present where his counsel makes an application for adjournment and, in such a case, the party is deemed to be present in which case the court cannot proceed exparte and the hearing will naturally be on merits and if the suit is decided on that date, the decree would be on merits. In my opinion, in this kind of scenario, the decree could not be set aside on an application under Order 9 Rule 13 of the C.P.C. 18. Order 9 Rule 13 of the C.P.C. permits the defendant to apply to the court for setting aside an exparte decree and if the defendant satisfies the court that the summons was not duly served or that he was prevented by a sufficient cause from appearing when the suit was called out for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs. The question which is up for consideration is, whether the order passed by the trial court is one under Order 17 Rule 2 or under Order 17 Rule 3 or under the Explanation to Order 17 Rule 2. The Full Bench of the Allahabad High Court in M. S. Khalsa (supra) held:- “94. Order IX Rule 9 as well as 13, confer a right on a party as well as jurisdiction on the court to set aside an earlier order or decree if it is passed under Rule 8, or if the decree is exparte, that is, when the plaintiff or the defendant, as the case may be, had failed to appear. The jurisdictional fact for a proceeding under Order IX Rule 9 or 13, is the absence of a party. The Court cannot refuse to see if the jurisdictional fact is established. The aggrieved party has a right to apply for an opportunity to prove the fact that he was absent. The plea that since he was absent any finding given behind his back that he was present or deemed present cannot be conclusive against him, seems well founded. ………………..” 12 19. In the light of the aforesaid, the court has to see as to whether a party was prevented from appearing and had shown sufficient cause for the non appearance or not. The aggrieved party has a right to apply for an opportunity to prove the fact that he was absent. The application under Order 9 Rule 13 of the C.P.C. would be maintainable, if it is based on the ground that the applicant failed to appear and, if he proves this fact, his