IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 FAO.No. 321 of 2008() --------------------- ( AGAINST THE ORDER DATED 12/11/2008 IN IA 1329/08 & 1330/08 IN OS.69/2006 OF SUB COURT KOYILANDY) .................... APPELLANT/PETITIONER/FIRST DEFENDANT -------------------- K.P. BALAKRISHNAN, S/O. KUNHIKELU, AGED 53, ANIYATHOOR, MELADY AMSOM, KILUR DESAM, KOYILANDY TALUK, KOZHIODE DIST. BY ADV. DR.V.N.SANKARJEE RESPONDENT(S): --------------- 1. BALAN, S/O. KANNAN, AGED 58, MALOLMEETHAL, MUYIPPOTH AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE DIST.\ 2. KUNHIKANNAN, S/O. SANKARAN, AGED 52,PARAMBATH, VALLIYAD AMSOM, AND DESOM, VADAKARA TALUK, KOZHIKODE DIST. 3. RAJEEVAN, S/O. KUNHIKELAPPAN, AGED 40, THEVARKULANGARA, MEPPAYYUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DIST. ADV. SRI.T.C.SURESH MENON FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 321 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of August, 2009. JUDGMENT Raman, J, This is an appeal by the first defendant in O.S.69 of 2006 on the file of the Sub Court, Quilandy, which is a suit for money. He filed written statement. But when the case was posted for trial, he was absent and a decree was passed. Soon thereafter he filed an application under Order 9 Rule 13 of Code of Civil Procedure seeking to set aside the ex-parte decree along with a petition to condone the delay in filing the same since there was a delay of 351 days in filing the application to set aside the ex-parte decree. According to him he was not keeping well and he was bed ridden. The court below found that the suit was posted on 5.9.2007 for trial and there was no sitting on that day and it was posted to 10.9.2007. Plaintiff was examined and Exts.A1 to A7 were marked on his side. Then the case was posted for the evidence of the FAO. 321/2008. 2 defendants on 11.9.2007. But none of the defendants adduced any evidence either oral or documentary. The matter was posted for hearing on 13.9.2007 and the judgment was pronounced on 20.9.2007. Therefore, according to the court below the suit having been decided on merits, the application under Order 9 Rule 13 CPC will not lie. 2. It is contended by the learned counsel appearing for the appellant that on 11.9.2007 defendants 1 and 2 did not appear. But defendant No.2 had already been set ex-parte long back. Third defendant was present, but did not adduce any evidence and he cross-examined the plaintiff. If so, a decree on merits could be passed only against third defendant. But the suit was dismissed against third defendant. As against first defendant, if he was absent, he could only be declared ex-parte and an ex-parte decree could have been passed as against him in which case Order 9 Rule 13 CPC will directly apply. This is not a case where explanation to Order 17 Rule 2 CPC will apply since admittedly the appellant did FAO. 321/2008. 3 not adduce any evidence. As a matter of fact the court below did not record the absence of the appellant, rather it proceeded to say that the appellant did not adduce any evidence. If actually he was absent, then as against him the decree could not said to be on merits. As a matter of fact when he filed an affidavit before the court below seeking to set aside an ex-parte decree stating that he was absent on the day on which the case was posted and in the absence of any case for the respondent that he was present on that day, normally it should be taken that the application itself was necessitated because he was absent on the day on which the case was posted. If so, it is not a case of absence of adducing evidence, but it is a case where he was absented himself from appearing, in which case the decree can be treated only as an ex-parte decree against him. In this connection we may refer to a decision of the Supreme Court reported in Prakash Chander Manchanda v. Janki Manchanda ((1986) 4 SCC 699) wherein it has been held that in a case not covered by Order 17 Rule 2 CPC, an order could FAO. 321/2008. 4 only be passed under Order 17 Rule 3 CPC. As per Explanation to Order 17 Rule 2 where the evidence or a substantial portion of the evidence has already been recorded and such party fails to appear on any day to which the hearing is to be done, the court may in its discretion proceed with the case as if such party was present. Therefore two things should be satisfied before invoking the power under explanation to Order 17 Rule 2. There should be evidence or atleast substantial evidence of the party and that party absented himself from appearing subsequently, in which case alone the court could exercise its discretion to proceed with the case as if he was present, because even though he was physically absent he having adduced evidence or substantial portion of evidence whereupon the court will proceed to exercise its discretion as contemplated under the explanation. As per Order 17 Rule 2 on the day on which the hearing of the suit is adjourned, if the parties or any one of them fails to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by FAO. 321/2008. 5 Order 9 or make such other order as it thinks fit. It is only by virtue of the explanation thereunder that the court has got a discretion to treat the absentee party as though he is present provided there is evidence or substantial portion of the evidence adduced on his side. In this case the appellant was absent on the appointed day and there was no evidence adduced by him at all. Therefore explanation is not attracted in the case on hand. As per Order 17 Rule 3 where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendant of his witness, 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. Therefore when the case stood adjourned after granting time for producing evidence and if the party is absent on that day, only an order as contemplated under sub rule 2 could be passed. Therefore the court below was not FAO. 321/2008. 6 right in law in dismissing the application for the reasons as stated. In the result, this appeal is allowed and the court below is directed to reconsider the application on its merits and dispose of the same in accordance with law. Sd/-P.R. Raman, Judge Sd/-P. Bhavadasan, Judge True copy PA TO JUDGE sb.