S.K.MISHRA, J. C. R. P. NO.101 OF 2007(Decided on 14.07.2011) ABHI DEHURY & ORS. ………Petitioners. .Vrs. DAKSHYA DEHURY & ORS. ………Opp.Parties. CIVIL PROCEDURE CODE, 1908 (ACT NO.5 OF 1908) – ORDER 17, RULE 2,3. For Petitioner - M/s. P.K.Jena, N.Panda, D.P.Mohapatra. For Opp.Parties - M/s. D.P.Dhal, S.K.Tripathy, S.K.Das & S.Mishra S.K.MISHRA, J. The petitioners assail the judgment dated 23.08.2007 passed by the learned District Judge, Sambalpur in F.A.O. No. 21 of 2005 affirming the order dated 11.03.2005 passed by the learned Civil Judge (Junior Division), Rairakhol in Misc. Case No. 6 of 2003, arising out of Title Suit No.07 of 1999. 2. The facts of the case are undisputed. The present petitioners are contesting defendants in Title Suit No.7 of 1999 of the court of Civil Judge (Junior Division), Rairakhol. The suit was posted to 06.11.2002 for hearing. On that date, the plaintiff was present and adduced evidence. Evidence of P.Ws. 2 and 3 were recorded. Prior to it, the plaintiff was examined and cross-examined. On 06.11.2002, the contesting defendants i.e. the petitioners were not present in the court. However, the court of original jurisdiction proceeded with the hearing of the case by dispensing with cross- examination of the witnesses in absence of the opponent advocates and parties. Then, after conclusion of trial, the learned Civil Judge (Junior Division) pronounced the judgment on 03.12.2002 in Title Suit No.7 of 1999 treating it to be a contested case. Thereafter, an application was filed by the present petitioners under Order 9 Rule 13 of the Code of Civil Procedure, 1905, hereinafter referred as the “Code”, which was registered as Misc. Case No. 6 of 2003. It was disposed of by the learned Civil Judge (Junior Division) on 11.03.2005. Learned Civil Judge held that the judgment passed in the Civil Suit was contested one and, therefore, Order IX, Rule 13 of the Code had no application. 3. The petitioners preferred Appeal before the learned District Judge, Sambalpur, which was registered as F.A.O. No. 21 of 2005. Learned District Judge also concurred with the findings recorded by the learned trial court and dismissed the appeal. Such orders of the learned Civil Judge (Junior Division) and the learned District Judge have been assailed in this Revision. 4. In course of hearing of this Revision petition, learned counsel for the petitioners submitted that the approach adopted by the learned Civil Judge (Junior Division) was erroneous in view of the fact that Clause (c) of Sub-Rule (2) of Rule 1 of Order XVII of the Code do not provide for the procedure to be adopted in absence of the parties to the suit. Rather, Order XVII, Rule 2 of the Code is applicable in this case. Learned counsel for the opposite parties, on the other hand, supported the findings recorded by the courts of Original and Appellate jurisdictions and prayed that the Revision application may be dismissed. 5. It is not disputed that on the date the suit was posted for hearing, the present petitioners, who were defendants 1, 2 and 3, were not present in the court. Rule 2 of Order XVII of the Code provides for the procedure when parties fail to appear on the day fixed. It is apt to quote the same. “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, in its discretion, proceed with the case as if such party were present.” This provision squarely lays down that if any party remains absent on the date to which hearing of the suit is adjourned, then the Court may proceed to dispose of the suit in one of the mode directed on his behalf by Order IX or make such order as it deems fit. 6. Rule 3 of Order XVII provides that court may proceed notwithstanding either party fails to produce evidence, etc. The same reads as follows: “3. Court may proceed notwithstanding either party fails to produce evidence, etc.- Where any party to 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.” Rules 2 and 3 of Order XVII provides for distinct and different sets of circumstances. Rule 2 applies where an adjournment has been generally granted and not for any specific purpose. Rule 3 applies where the adjournment is given for one of the purposes mentioned in said Rule, i.e. for production of witnesses or to cause attendance of witnesses or to perform any other act necessary to the further progress of the suit. Under Rule 2, court is empowered to dispose of the suit in any one of the modes specified under Order IX. Rule 2 applies only when any of the parties fails to appear at the hearing, whereas Rule 3 shall also apply where the parties appear but have committed default in production of witnesses/evidence etc. Under Rule 3, if the suit is posted for a particular purpose like production of evidence etc and one of the parties remained absent, then the court may proceed under Rule 2 of Order XVII of the Code. So, net result on a conjoint reading of Rules 2 and 3 of Order XVII is that, whenever a 2 suit is posted for hearing or for a specific purpose and one of the parties remains absent, then the Court has to proceed as per Rule 2 by taking any sort of recourse open to it under Order IX of the Code. 7. In a similar case in Prakash Chander Manchanda and another v. Smt. Janki Manchanda, AIR 1987 SC 42; Supreme Court has held that if on a date fixed, one of the parties to the suit remains absent and for that party no evidence has been led up to that date, the Court has no option but to proceed to dispose of the matter in accordance with Order XVII, Rule 2 i.e. in any one of the modes prescribed under Order IX of the Civil Procedure Code. Such observations of the Supreme Court are squarely applicable to the case at hand. 8. In this case, the learned Civil Judge proceeded to dispose of the suit as a contested one instead of resorting to Order IX of the Code. In spite of such disposal, the judgment is an ex parte one. Hence, the aggrieved party has two options; firstly, he may file an appeal against such judgment. Secondly, he may file an appropriate application under Order IX Rule 13 of the Code to set aside the judgment. The defendants having preferred an application under Order IX, rule 13 of the Code, the learned Civil Judge should have entertained the same and allowed the petitioners to examine all such witnesses and produce such documentary evidence to establish the plea that they were prevented by sufficient cause from appearing in the Court on the date posted for hearing. The court of original jurisdiction having failed to do so, this Court has no hesitation to hold that the procedure adopted by the learned Civil Judge (Junior Division), which has been upheld by the learned District Judge is erroneous and requires interference of this Court. 9. Accordingly, the Revision Application is allowed. The order dated 03.12.2002 passed by the court of Civil Judge (Junior Division), Rairakhol in Misc. Case No.6 of 2003 and the concurring judgment of the learned District Judge are hereby set aside. The matter is remanded to the court of Civil Judge (Junior Division), Rairakhol for fresh adjudication. The parties shall be allowed to adduce evidence in support of their respective clauses in the proceeding under Order IX, rule 13 of the Code. The parties are directed to appear before the learned Civil Judge (Junior Division), Rairakhol on 17.08.2011. No costs. Revision allowed. 3