IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 CMA.No. 76 of 2003() -------------------- AGAINST THE ORDER IN OS.616/96 IN IA.3488/2001 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT(S): DEFENDANTS: ----------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS AND TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, P.W.D. (R & B), CENTRAL CIRCLE, ALUVA. BY GOVERNMENT PLEADER SRI.R.LAKSHMI NARAYAN. RESPONDENT(S): PLAINTIFF: -------------------- K.V.JOY, AGED 50, S/O. GEEVARGHESE, RESIDING AT KALLAPPARA HOUSE, KUNNATHUNADU VILLAGE, KUNNATHUNAD TALUK. BY ADV. SRI.K.L.VARGHESE SMT.SANTHA VARGHESE SRI.MOHAN PULIKKAL THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- C.M.A.No.76 of 2003 ------------------------------- Dated this the 14th August, 2009 J U D G M E N T Bhavadasan, J. Aggrieved by the order dated 30.7.2002 in I.A.No.3488 of 2001 in O.S.No.616 of 1996, on the file of Sub Court, Ernakulam, the petitioners before the court below have come up in appeal against the order dismissing their petition to set aside the ex parte decree. 2. Respondent herein is the plaintiff before the court below, who instituted O.S.No.616 of 1996, claiming certain amounts towards the contract work he had done. Claim includes damages also. An agreement was entered into between the plaintiff and the defendant on 27.6.1988 in relation to the work of improvements to be made to the traffic facilities in Cochin city providing additional carriage way on either side of the Ernakulam C.M.A.No.76 of 2003 2 North Railway over bridge for light vehicles. The work was to be completed within 15 months. 3. According to the appellants, on 22.8.1988, the site was handed over to the Contractor. Therefore, period expired on 21.11.1989. It is contended by the appellants that plaintiff has sought for extension of time and that was granted on imposing penalty. Even after several extensions were given, the work could not be completed. Finally, the work was completed in August, 1993. Thereafter, it appears that the plaintiff claimed enhanced rate which was rejected by the appellants, against which a suit was filed. The plaintiff's claim was allowed partially and the suit was decreed for an amount of Rs.5,32,595.83 with 6% interest from the date of the suit. 4. The suit was posted in the special list during May, 2001. It appears that the appellants could not appear before the court and hence sought an adjournment, which was granted. It is seen from the records that the suit was adjourned C.M.A.No.76 of 2003 3 from 22.5.2001 to 25.5.2001 and then from 25.5.2001 to 28.5.2001. 5. On 25.5.2001, plaintiff was examined as PW.1 and Exts.A 1 to A25 were marked on the side of the plaintiff and Exts.B1 to B42 were also marked. Then the court below considered the evidence and the suit was partly decreed. Since the appellants were unable to be present on the day on which the suit was listed for further trial, they moved I.A.No.3488 of 2001, an application to set aside the ex parte decree, within the stipulated time. 6. The plaintiff, who is the respondent before the court below opposed the petition. The court below took the view since the suit was disposed of on merits, after considering all the issues, and without declaring the defendants ex parte, the decree cannot be considered as an ex parte decree. Hence the petition filed for setting aside ex parte decree under Order IX Rule 13 was not maintainable. Holding so, the petition was dismissed. C.M.A.No.76 of 2003 4 7. The issue that arises for consideration is whether the finding of the court below is justified in law. 8. The learned Government Pleader appearing for the appellants pointed out that the court below has erred in law in holding that the suit has been disposed of on merits and that petition filed for setting aside ex parte decree under Order IX Rule 13 is not maintainable. It is further submitted that even assuming that the disposal is under Order XVII Rule 2, still the explanation to that provision is not attracted to the facts of the case and hence the disposal of the suit can be treated as one under Order IX of C.P.C. If that be so, petition filed under Order IX Rule 13 is maintainable. 9. Per contra, the learned counsel appearing for the respondent submitted that explanation to Order XVII Rule 2 applies to the facts of the case and disposal of the suit can be treated as on merits only and not an ex parte decree. Going by Order XVII Rule 1, the maximum number of adjournments that C.M.A.No.76 of 2003 5 could be grated is three and the defendant has already availed all the three chances. He further pointed out that Exts.B1 to B42 were marked on the side of the defendants and hence it could not, therefore, be said that the decree was an ex parte one. 10. It will be useful at this juncture to refer to Order XVII Rule 2 of Code of Civil Procedure. The disposal admittedly is under the said provision, which reads as follows:- “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 fails to appear on any day to which the hearing of the suit is adjourned, the Court may, on its discretion, proceed with the case as if such party were present.” 11. Before the going into the legal aspects, the reasons given for setting aside ex parte decree may be looked C.M.A.No.76 of 2003 6 into in the affidavit filed before the court below. It is pointed out that on 22.5.2001, the Government Pleader had filed a petition for removing the case from the special list since the case records were found missing, and hence the matter was adjourned to 25.5.2001. On 25.5.2001, when the case was called, the concerned Government Pleader was engaged in Sessions Case before the Additional Sessions Court, Ernakulam, and prayed for an adjournment. On that day, the plaintiff was examined as PW.1 and the case was posted on 28.5.2001 for further examination. Due to the mistake committed by the clerk in the Government Pleader's office, posting on 28.5.2001 was not noticed, and, therefore, the defendants were not present on that day, and hence cross examination of PW.1 was not conducted. On 28.5.2001, the Sub Court closed the plaintiff's evidence and posted the case to 29.5.2001 for defendants evidence. The Government Pleader was unable to attend that day also, resulting in the Court closing the evidence and posting the case for C.M.A.No.76 of 2003 7 judgment to 19.6.2001, and the judgment was also pronounced on that day. 12. It is pointed out that the Government Pleader was not deliberately absent and it was due to reasons beyond his control that he could not be present on subsequent days in which the case was listed for trial. The court below has not considered as to whether the reasons shown by the defendants are sufficient for setting aside ex parte decree. As already stated, according to the court below, the suit was disposed of on merits and hence petition filed by the Government Pleader is not maintainable. 13. Coming back to Order XVII Rule 2 of CPC, it can be seen that, when a suit is adjourned to a particular date, the parties or any one of them fail to appear, the Court may proceed to dispose of the suit in one of the modes made mention of under Order IX of CPC. The explanation says 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 any day C.M.A.No.76 of 2003 8 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. The distinction between main provision and the explanation is that in a case where the parties do not appear or any one of them fails to appear, the court below is to proceed under Order IX. But a party whose evidence has been recorded and on the motion of that party, the suit is adjourned, the Court is given liberty on the adjourned day to deal with the matter on merits, even if that party is absent on that day, considering the evidence as sufficient and to dispose of the suit. 14. The said question has been considered in the decision reported in Haridas v. Madhavi Amma (1987 (2) KLT 701), and it was held that if the disposal is under Order XVII Rule 2, a petition filed under Order IX Rule 13 is maintainable. In such cases, even though the disposal in form purports to be one on merits, if it is found to be in substance one for default and a petition under Order IX Rule 13 is maintainable. Granting of C.M.A.No.76 of 2003 9 such an application is proper and legal in such circumstances and for that purpose what the court has to look into is not the form of the judgment but its substance. In such cases bar for an application under Order IX Rule 13 is only if the decree is one on the merits, i.e., under Order XVII Rule 3(a) or under Order XVII Rule 2 explanation, in which case the remedy is only by way of an appeal. An application under Order IX Rule 13 is not barred in other cases simply because disposal purports to be on the merits but actually is one for default. A disposal under Order XVII Rule 3(b) can only be under Order XVII Rule 2, i.e., applying the provision under Order IX. If the disposal of the suit could be treated as one only under Order XVII Rule 2 and Order XVII Rule 3(a), even assuming that the court refers to rival contentions and the available evidence and judgment to decide the case on merit, still the disposal will be treated to be under one of the modes under Order IX. C.M.A.No.76 of 2003 10 15. In the case of an ex parte decree passed under Order IX, three remedies are available to the defendant. They are, i) a regular appeal against the decree. ii) petition to set aside the ex parte decree, and iii) Review petition. If an appeal is from such a decree and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, thereafter a petition under Order IX Rule 13 is not maintainable. 16. The said issue has again considered in Bhagyam v. Luis (1995 (2) KLT 233), wherein it was held that if the disposal of the case was not under either explanation to Rule 2 of Order 17 or Rule 3(a) of Order 17, it cannot be assumed that the judgment was on merit and that Order IX Rule 13 is not applicable. C.M.A.No.76 of 2003 11 17. The learned counsel appearing for the respondent, on the other hand, placed considerable reliance on the decision reported in B.Janakiramaiah Chetty v. A.K.Parthasarthi and others (2003 (5) SCC 641), wherein it was held as follows:- “10. The crucial expression in the Explanation is “where the evidence or a substantial portion of the evidence of a party”. There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The court while acting under the Explanation may proceed with the case if that prima facie is the position. The court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision.” C.M.A.No.76 of 2003 12 18. Before applying the principles of the above decisions, it has to be noticed that the defendants have not adduced any evidence in the present case. The evidence was that of PW.1, plaintiff alone. Though exhibits were marked as Exts.B1 to B42, no evidence was adduced by the defendant. So the mere fact that documents were marked as Exts.B1 to B42 by the plaintiff himself, it does not mean that defendants have adduced any evidence in the case. In fact the marking of Exts.B1 to B42 is contrary to Rule 128 of Civil Rules of Practice which say that exhibits of plaintiff shall be marked as Exts.A1, A2 etc. 19. It is true that the defendants had not been set ex parte as such. But merely because the defendants have not been set ex parte, by itself may not be sufficient to come to the conclusion that the suit was disposed of otherwise than under Order IX. 20. It is pointed out by the respondent that explanation to Order XVII Rule 2 applies to the facts of the case. C.M.A.No.76 of 2003 13 For the explanation to apply, it is absolutely necessary that the evidence or substantial portion of 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. Then the court may, in its discretion, proceed with the case as if such party were present. In the case on hand, it is not the case of either of the parties that defendants has adduced any evidence and the defendants were absent on the subsequent day, when the case was disposed of. Therefore, the explanation to Rule 2 of Order XVII does not apply to the facts of this case. Hence, the decisions referred to above, Haridas v. Madhavi Amma and Bhagyam v. Luis, is applicable to the facts of the case. In the circumstances, the decree passed can be treated only as an ex parte decree and a petition under Order IX Rule 13 is maintainable. 21. Even the decision reported in B.Janakiramaiah Chetty v. A.K.Parthasarthi and others, noticed C.M.A.No.76 of 2003 14 above, does not take a different view. In paragraph 10 of the said decision, it is pointed out that the evidence on record which is treated as a sufficient should be of absentee party. In the case at hand, plaintiff alone was examined. It is not the case of either of the parties that plaintiff alone was absent. It was the defendants who had defaulted to appear on the subsequent posting dates. It has also to be noted that even if explanation to Order XVII Rule 2 is to be applied, the Court should be satisfied that the evidence already adduced by the party concerned is sufficient to dispose of the suit. That shows that even assuming that defendants are absent and the plaintiff has adduced evidence, the court should apply its mind and come to a definite conclusion that the case should be disposed of on the basis of available evidence. 22. Going by the provisions as well as the principles laid down by the Division Bench referred above, we are of the view that the decree passed by the court below in the suit C.M.A.No.76 of 2003 15 can be treated only as an ex parte decree. If that be so, the petition filed under Order IX Rule 13 is perfectly maintainable. The court below has erred in holding that the said petition is not maintainable. 19. For the reasons stated above, the impugned order is set aside. I.A.No.3488 of 2001 is remitted to the court below. The court below is directed to dispose of the petition, in accordance with law, and in the light of what has been stated above. No order as to costs. The appeal is disposed of as above. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj. P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- C.M.A.No.76 of 2003 J U D G M E N T Dated: 14th August, 2009. -------------------------------