IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 30TH JULY 2007 / 8TH SRAVANA 1929 WP(C).No. 5836 of 2005(T) ------------------------- CMA.73/04 OF DISTRICT COURT, KOZHIKODE. IA.1179/04 IN OS.60/1990 of ADDL.M.C., KOZHIKODE-II .................... PETITIONERS: ------------ 1. NALINI JANARDHANAN, W/O.JANARDHANAN, AGED 65 YEARS, PANNIYANKARA AMSOM AND DESOM, KOZHIKODE TALUK. (DIED) ADDL. 2. K.JANARDHANAN, S/O.APPUTTY, KOORKAPARAMBU HOUSE, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. ADDL. 3. SWAMINATHAN, S/O.LATE NALINI JANARDHANAN, AGED 31 YEARS, KOORKAPARAMBU HOUSE, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. ADDL. 4. K.SHAJI, S/O.LATE NALINI JANARDHANAN, AGED 29 YEARS, KOORKAPARAMBU HOUSE, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. LEGAL HEIRS OF THE DECEASED 1ST PETITIONER ARE IMPLEADED AS ADDL.PETITIONERS 2 TO 4 AS PER ORDER DT.26.9.05 IN I.A. 13852/05 BY SR.ADV. SMT.SUMATHY DANDAPANI ADV.SRI.JAWAHAR JOSE RESPONDENTS: ------------- 1. ELAMANA CHINNAMMU, W/O. GOPALAN, AGED 73 YEARS, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. WPC.5836/05 2. KARAMBATH SAKUNTHALA, W/O.VELAYUDHAN, AGED 56 YEARS, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 3. CALICUT CORPORATION, REPRESENTED BY ITS SECRETARY, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK. 4. ELAMANA RAVEENDRAN, S/O. GOPALAN, AGED 49 YEARS, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 5. PALATHIL SUNDARAN, S/O. JANU, AGED 51 YEARS, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 6. PADANNAKKATTU SANTHA, W/O. CHANDRAN, AGED 46 YEARS, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 7. P.VASANTHA, D/O. JANU, AGED 43 YEARS, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. R1 & R4 BY ADV. SRI.R.BINDU (SASTHAMANGALAM) R3 BY ADV.SRI.M.P.PRABHANANDAN, SC, KOZHIKODE CORPN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.5836/05 APPENDIX PETITIONERS' EXTS: EXT.P1 – TRUE PHOTO COPY OF I.A.1179/04 IN O.S.60/1990 FILED BY PETR. BEFORE MUNSIFF'S COURT, KOZHIKODE-I. EXT.P2 – TRUE PHOTO COPY OF ORDER DT.22.7.04 IN I.A.1179/04 EXT.P3 – TRUE PHOTO COPY OF JUDGMENT DT.28.1.05 IN CMA.73/04 OF DISTRICT COURT, KOZHIKODE. /TRUE COPY/ PIUS C. KURIAKOSE, J. .......................................................... W.P.(C)No.5836 OF 2005 ........................................................... DATED THIS THE 30TH JULY, 2007 J U D G M E N T The important question which arises in this Writ Petition is whether “decision” of the suit envisaged by Clause (a) of Rule 3 of Order XVII C.P.C. shall be a decision on the merits of the claims and contentions in the suit. As a corollary, the question whether a decision taken purportedly under Rule 3(a) which does not deal with the merits of the claims and contentions can be set aside under Order IX also arises. The question whether appearance of a party through a counsel who is not prepared to conduct the case but only seeks an adjournment will amount to appearance of the party for the purpose of Rule 3(a) also arises. 2. Plaintiff is the petitioner. On her demise during the pendency of the Writ Petition, her legal heirs have been impleaded as additional petitioners. The suit was for prohibitory injunction against trespass into the suit properties. After trial, the suit was dismissed. But the court of first appeal decreed the suit. On Second Appeal to this Court, the suit was remanded with a direction to identify the suit properties with the help of an advocate commissioner and to dispose of the suit within six months. The commissioner filed report and plan. The petitioner WP(C)N0.5836/05 -2- filed I.A.No.410 of 2004 for setting aside that report and plan. The I.A. was dismissed after examining the commissioner. The case stood posted for trial to 1.3.2004. The plaintiff was not present but only sought for an adjournment on the ground that the order on the application to set aside the commissioner's report and plan is proposed to be challenged. The adjournment application was dismissed and the suit was also dismissed. The plaintiff filed I.A.No.1179 of 2004 under Order IX Rule 9 C.P.C. for restoration of the suit which was dismissed by the trial court by Ext.P2 order, holding that the non-appearance of the petitioner on 1.3.2004 was to avoid a decision in the suit and that sufficient cause was not made out for the non-appearance. It was also noticed in Ext.P2 order that a time-limit had been set by this Court which had to be complied with. Against Ext.P2 the petitioner preferred C.M.A.No.73 of 2004 before the District Court and the learned District Judge would paraphrase Order XVII Rule 3 C.P.C. and hold that all the conditions necessary for attracting Order XVII Rule 3 (a) stood satisfied in the case and would accordingly hold that the application for restoration under Order IX Rule 9 was not maintainable and that the remedy of the petitioner was to seek a review of the judgment dismissing the suit or to prefer a regular appeal as provided WP(C)N0.5836/05 -3- under the Code. Noticing that the judgment dismissing the suit does not decide the merits of the claim or the contentions, the learned District Judge would observe that such a dismissal of the suit is also `decision' of the suit at least for the purposes of Rule 3(a) of Order XVII. Despite the above finding, the learned Judge went on to consider the merits of the application and would find that sufficient cause had not been made out and further that genuine grievances of the petitioner, if any, against the order dismissing the commission application could be raised as grounds in the appeal to be filed by her against the decree dismissing the suit. To hold that the application under Order IX Rule 9 is not maintainable, the learned District Judge relied mainly on the judgment of this Court in Sankara Pillai v. Sankaran (1987 (2) KLT 382) and that of the Full Bench of the Allahabad High Court in M.S.Khalsa v. Chiranji Lal (AIR 1976 Allahabad 290). According to the learned District Judge, appearance through a counsel who files an unsuccessful application for adjournment should be deemed as appearance of the party for the purpose of the rule. The judgments in Divakara Panicker v. Pathumma and others (1990 (1) KLJ 787), Sankara Pillai v. Balakrishnan Nair (1988 (1) KLT 339) and in Janakiramaiah WP(C)N0.5836/05 -4- Chetty v. Partharasarathi (2003 (2) KLT 384) were all distinguished by the learned District Judge on facts. 3. I have heard the submissions of Sri.Jawahar Jose, Advocate on behalf of the petitioner and those of Sri.R.Bindu Sasthamangalam, Advocate on behalf of respondents 1 and 4. I have also heard the submissions of Sri.C.M.Suresh Babu, Standing Counsel on behalf of the 3rd respondent-Calicut Corporation. 4. Mr.Jawahar Jose would flay Exts.P2 and P3 forcefully. He would argue that decision which is contemplated under Clause (a) of Rule 3 of Order XVII is a decision on merits. The disposal of the suit on 1.3.2004 was not a decision on merits but it was obviously a decision by default. There was no appearance of the plaintiff on 1.3.2004 and appearance by the counsel who was not prepared to do anything more than to file an application for adjournment which was turned down by the learned Munsiff will not constitute appearance of the plaintiff for the purpose of the rule. The learned counsel further submitted that, in any view, sufficient cause had been made out by the plaintiff for her non-appearance on the crucial date and the courts below ought to have allowed the application so as to facilitate disposal of the cause on merits. The learned counsel relied on the judgments WP(C)N0.5836/05 -5- in Sankara Pillai v. Balakrishnan Nair (1988 (1) KLT 339), Divakara Panicker v. Pathumma and others (1990 (1) KLJ 787), Pokku v. Ammini (1987 (2) KLT 308), G.P.Srivastava v. R.K.Raizada [(2003) 3 SCC 54) and Janakiramaiah Chetty's case (2003 (2) KLT 384) for the propositions advanced by him. 5. Sri.R.Bindu Sasthamangalam, learned counsel for the contesting respondents would support Ext.P3 judgment on the basis of the reasons stated therein and submit that there is no warrant at all for interfering with the same within the contours of this Court's very narrow jurisdiction under Article 227 of the Constitution. 6. On going through the counter affidavit which was filed by the respondents to Ext.P1 application, it will be seen that the contention that Ext.P1 is not maintainable was raised only formally and a perusal of Ext.P2 order passed by the learned Munsiff will show that the above contention was not accepted and the learned Munsiff has found Ext.P1 application under Order IX Rule 9 to be maintainable in law. The enquiry in Ext.P2 is confined mainly to the question whether the plaintiff had made out sufficient cause for her non-appearance on the crucial day, i.e., 1.3.2004. The judgment passed by the court on 1.3.2004 reads as follows:- WP(C)N0.5836/05 -6- “Suit for perpetual injunction. Plaintiff not present. Her husband was reported to be present in the morning. He was not present when his name was called out. No proof affidavit filed either. D5 present. I.A.No.837/04 filed today on the side of the plaintiff seeking adjournment is dismissed vide separate order. Plaintiff is not ready to tender evidence despite repeated directions. She had not paid the batta ordered to the commissioner either. Hence the suit is dismissed with costs of supplemental D5 for non- appearance of plaintiff.” (underlining mine) In Ext.P2, the learned Munsiff finds that the plaintiff’s non-appearance was deliberate and accordingly holds that the cause shown—her intention to challenge the order passed on the application to set aside the commissioner’s report--did not constitute sufficient cause for the purpose of Order IX Rule 9. In other words, it is somewhat clear from Ext.P2 that the learned Munsiff has construed Ext.P2 as an order under Clause (b) of Rule 3 of Order XVII. 7. I shall now extract Rule 3 of Order XVII C.P.C.:- “3. Court may proceed notwithstanding either party fails to produce evidence, etc.-- Where any party to a suit to whom time has been WP(C)N0.5836/05 -7- 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.” On going through Ext.P3, it is seen that the learned District Judge has correctly paraphrased Order XVII Rule 3 and found that in order that clause (a) of Rule 3 of Order XVII be attracted, the following conditions should be satisfied:- 1. Time must have been granted to the party concerned to produce his evidence or cause the attendance of his witnesses or perform any other act necessary for the further progress of the suit. 2. The party failed in doing any of the acts enumerated above. 3. The parties must have been present on the day. 4. The suit should have been decided forthwith. The District Judge noticed that the suit stood originally posted for trial to 26.2.2004, i.e., for the plaintiff to adduce evidence, and on that day the case was adjourned to 1.3.2004, and found that time had been WP(C)N0.5836/05 -8- granted to the plaintiff at her instance for adducing evidence. Accordingly, it was found that the first condition stood satisfied in this case. Noticing that the husband of the plaintiff who was present at the time of roll-call was found absent when his name was called out for commencement of recording of his evidence, the court found that the second condition also stood satisfied, since it was clear that the plaintiff was not prepared to tender evidence on 1.3.2004. I do not find any infirmity about the findings of the learned District Judge regarding the first two conditions which are pre-requisites for justifying a judgment under Order XVII Rule 3(a) of the code. 8. The third condition, as already noticed, is that both the parties should have been present on the crucial day and the fourth condition is that the suit should have been decided forthwith. According to me, the learned District Judge has erred in holding that conditions 3 and 4 also stood satisfied in this case and that the judgment passed on 1.3.2004 dismissing the suit was a judgment under Clause (a) of Rule 3 of Order XVII. According to the learned District Judge, it is not mandatory that the decision which is expected to be taken forthwith under Clause (a) of Rule 3 of Order XVII shall be a decision on merits and dismissal of the suit for default is also a decision of the suit, at least for the WP(C)N0.5836/05 -9- purposes of Rule 3(a). 9. In Janakiramaiah Chetty's case [2003 (2) KLT 384 (SC)], the comparative scope of Rules 2 and 3 of Order XVII C.P.C. and the distinction between the two rules were considered by the Supreme Court. Arijit Pasayat, J. who authored the judgment points out that Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies only when an adjournment has been granted generally and not for any specific purpose. His Lordship held that Rule 3 operates when adjournment has been specifically given for any one of the purposes mentioned in that rule. The basic distinction between the two rules, according to the learned Judge, is that in the former, any party has failed to appear at the hearing while in the latter, the party though present has committed any one or more of the defaults enumerated in the rule. The Explanation to Rule 2 extracted hereunder was noticed by the learned Judge:- “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.” The combined effect of the Explanation to Rule 2 and Rule 3 of Order WP(C)N0.5836/05 -10- XVII is that the power conferred on the court is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, even an absentee party can be deemed to be present. Noticing the crucial expressions in the Explanation “where the evidence or a substantial portion of the evidence of any party”, the learned Judge observes:- “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.” The learned Judge goes on to analyse the judgment which was impugned in that case and finds that the judgment has imprints of an WP(C)N0.5836/05 -11- ex parte adjudication and not of a decision on merits since there is not even an indication as to what evidence was evaluated or whether the merits of the claims and contentions were tested. The above view of the Supreme Court, though they are specifically expressed with reference to a judgment under the Explanation to Rule 2 of Order XVII, in my opinion, should apply in the case of disposals under Order XVII Rule 3(a) also. In fact, the learned Judge has also observed that unless the judgment in question discusses the merits of the case, preferring of a regular appeal will be really inconsequential since no definite grounds of appeal can be pressed into service except making generalised challenges. I also feel that it cannot be the legislative intent to encourage preferring of regular appeals in situations where the appellants are unable to raise definite grounds challenging the merits of the decision under appeal. 10. U.L.Bhat and K.G.Balakrishnan, JJ. in Sankara Pillai v. Balakrishnan Nair (1988 (1) KLT 339) have also analysed the relative scope of Rules 2 and 3 of Order XVII C.P.C. Their Lordships held that where Rule 2 applies, ordinarily the disposal shall be under Order IX and disposal on the merits of the matter is possible only by virtue of the Explanation to Rule 2. As regards Rule 3, their Lordships WP(C)N0.5836/05 -12- say that Rule 3 can be invoked only when both parties are present and even if the disposal purports to be on merits, unless the conditions necessary for disposal under Order XVII Rule 3 (a) are satisfied, the provisions of Order IX C.P.C. will apply. In my opinion, this judgment also sufficiently indicates that a decision under Rule 3(a) of Order XVII, as in the case of a decision under the Explanation to Rule 2 of Order XVII, shall be a decision on merits. 11. S.Padmanabhan, J. in the decision in Divakara Panicker v. Pathumma and others (supra) has clearly indicated that decisions which are contemplated under the Explanation to Rule 2 of Order XVII and under Clause (a) of Rule 3 are decisions on the merits of the claims and contentions. His Lordship holds that the power conferred on courts under Clause (a) of Rule 3 of Order XVII to decide the suit on the merits for the default of a party (default need not be of appearance but in the matter of performance of the acts enumerated under Rule 3) is a drastic power which seriously restricts the remedy of the unsuccessful party for redress. It has to be used only sparingly in exceptional cases. In order to decide the suit on merits, the mere existence of the conditions enumerated under Rule 3 alone will not be sufficient. There must be some materials for a decision on the merits WP(C)N0.5836/05 -13- even though the materials may not be technically interpreted as evidence. Sometimes, the decision in such cases could be on the basis of pleadings, documents and burden of proof. The learned Judge also observed that it is appreciable for the court to indicate by the judgment that the decision is for default or on merits. The learned Judge would observe:- “The only alternative of the court in cases covered by Rule 3 or the Explanation to Rule 2 is not to decide on the merits alone. If such an interpretation is given, it will amount to an unjustified preference to one who purposely absents than to one who presents but is unable to proceed with the case.” In my opinion, a decision purportedly made under Rule 3(a) unless the same is on merits will have to be construed as a decision under Rule 3 (b) itself. In fact, there is considerable volume of judicial authority in support of the view. 12. There is sufficient indication in the judgment of the Supreme Court in Prakash Chander v. Janki Manchanda (AIR 1987 SC 42) that the decision which is envisaged under Order XVII Rule 3(a) is a decision on merits, though the learned District Judge observed that the decision cannot be said to be a direct one on the point. The judgment of Sadasivan, J. in Abdulla Haji v. Mammunhi Barikat (1969 KLT WP(C)N0.5836/05 -14- 433) is a direct authority for the proposition that disposal envisaged under Clause (a) of Rule 3 is a disposal on merits. His Lordship notices that two phases are contemplated under Order XVII Rule 3. The first is default on the part of the plaintiff to perform the acts necessary for the further progress of the suit. The second phase is that the court shall proceed with the suit notwithstanding the default. According to the learned Judge, even when it is noticed that there is default on the part of the party to do what he was expected to do, then, the court shall proceed with the suit and decide the suit on the basis of the available materials rather than dismiss the suit by a one-word judgment. In fact, the learned Judge followed the views of the Jammu and Kashmir High Court in Sonaullah v. Sultan Jan (AIR 1952 Jammu & Kashmir 21) and held that the words “proceed to decide the suit forthwith” notwithstanding default suggest that the case must be one where in spite of the default of a party, it must have been possible for the court to come to a decision of the suit—a decision on the merits of the case, on the materials available before the court. 13. A Division Bench consisting of T.S.Krishnamoorthy Iyer and P.Unnikrishna Kurup, JJ. in Pokker Haji v. Muhammed Barami (1971 KLT 438) has observed that in order that Rule 3 of Order XVII WP(C)N0.5836/05 -15- applies, the disposal of the suit shall be on the basis of the evidence already on record and not on the basis of any evidence which is adduced after the default to perform any acts under Order XVII Rule 3 occurred. This decision, in my view, clearly implies that disposals under Clause (a) of Rule 3 of Order XVII shall be disposals on merits. A Full Bench of the Bombay High Court in Basalingappa v. Shidramappa (AIR 1943 Bombay 321) considered the relative scope of Rules 2 and 3 of Order XVII. Their Lordships held that the mere fact of a party making any default of what he was directed to do would not lead to a dismissal of the plaintiff’s suit, if the plaintiff was the party in default, or the decreeing of the claim against the defendant, if the defendant was the person who made the default. According to their Lordships, the words “notwithstanding such default” in Rule 3 clearly imply that the court is to proceed with the disposal of the suit in spite of the default, upon such materials as are before it. Thus this decision clearly takes the view that decisions under Clause (a) of Rule 3 shall be decisions on the merits of the claim. The judgment of P.Govinda Menon J. in Kunjannam v. A.Issac (1961 KLT 653) was in a case where the suit after undergoing several adjournments stood posted for production of succession certificate by the plaintiff. On the WP(C)N0.5836/05 -16- relevant date, the plaintiff did not produce the succession certificate but only applied for adjournment. The adjournment application was dismissed and the suit was also dismissed for default. The learned Munsiff, without specifically referring to Order XVII Rule 3(a) held that the restoration application was not maintainable. Taking the view that even when a suit is dismissed on the reason of non-performance of an act required to be done under Rule 3(a) of Order XVII, then also the dismissal shall be on the reason that the evidence in the case falls short of upholding the claim and not on the reason of default of appearance or non-performance alone, the learned Judge ruled that the restoration application was maintainable. 14. The judgments of the Rajasthan High Court in Gopikishan v. Ramu [AIR 1964 Rajasthan 147(FB)] and the Orissa High Court in Hindustan Steel Ltd. v. Prakash Chand [AIR 1970 Orissa 149 (DB)] also indicate that those courts are of the view that decision under Clause (a) of Rule 3 of Order XVII shall be a decision on the merits and that even if it is a dismissal of the suit, the dismissal shall be on the reason that there is lack of evidence to uphold the claim and not on the reason that the plaintiff is absent or has not performed the acts which he was expected to perform under Rule 3. In A.K.P.Haridas v. WP(C)N0.5836/05 -17- V.A.Madhavi Amma (AIR 1988 Kerala 304), while holding that an application under Order IX Rule 13 is maintainable for setting aside a decree passed under Order VIII Rule 10, S.Padmanabhan, J. has