Case: G.RATNA RAJ (DEAD) BY LRS Vs. SRI MUTHUKUMARASAMY PERMANENT FUND LTD AND ANR

4. The original appellant¬G Ratna Raj (since dead and now represented by his legal representatives) was the plaintiff whereas respondent No.1 was defendant No.1 in the civil suit out of which these appeals arise. Respondent No.2 is impleaded as party respondent in this Court by order dated 06.02.2014.      5. The original plaintiff (appellant herein)¬G Ratna Raj filed a Civil Suit No.131/1999 against the defendants (Sri Muthukumaraswamy Fund Ltd.¬ Respondent No.1 herein and Balajee & Ors.) in the High Court of Madras on its original side jurisdiction for redemption of mortgage and for permanent injunction in relation to the mortgaged property.      6. The defendantson being served entered their appearance and filed their written statement. The Trial Court,on the basis of pleadings,framed the issues. The plaintiff examined himself as PW¬1. The defendants cross¬examined the plaintiff.Thereafter, the plaintiff closed his case. The case was accordingly posted for recording defendants evidence.      7. At that stage of the proceedings, the defendants did not appear in the suit and, therefore, the Court proceededex parteagainst them. The proceedings in the suit then continued as ex parteagainst the defendants. The plaintiff then got himself re¬examined in the proceedings. He, however, could not be re¬cross-examined by the defendants because they were already proceeded ex parte in the proceedings.      8. The Trial Court (Single Judge) by judgment/decree dated 25.02.2003 passed a preliminary decree against the defendants in relation to the suit property. This led to filing of the two applications (IA No.340/2006 and IA No. 341/2006) by defendant No.1 before the Trial Court.      9. So far as IA No. 341/2006 is concerned, it was filed under Order 9 Rule 13 of Code of Civil Procedure, 1908 (hereinafter referred to as the Code) for setting aside of the preliminary decree dated 25.02.2003 and so far as IA No.340/2006 is concerned, it was filed for condonation of delay in filing the application under Order 9 Rule 13 of the Code.      10. By order dated14.03.2006, the Single Judge dismissed both the applications and held that the application filed bydefendant No.1 under Order 9 Rule 13of the Code was not maintainable because the preliminary decree dated 25.02.2003 was not an ex parte decree. In other words, he was of the view that since the preliminary decree dated 25.02.2003 was not anex partedecree, an application under Order 9 Rule 13 of the Code could not be filed for its setting aside.      11. Defendant No.1 felt aggrieved and filed appeals before the Division Bench of the High Court. By impugned order, the Division Bench allowed the appeals and set aside the order of the Single Judge. The Division Bench held that the preliminary decree dated 25.02.2003 was anex partedecree passed in the civil suit by the Trial Court (Single Judge) and, therefore, the application filed bydefendant No.1 under Order 9 Rule 13 of the Code was maintainable with a view to find out as to whether such decree could be set aside under Order 9 Rule 13 of the Code or not.      12. The Division Bench, therefore, allowed the application filed bydefendant No.1 under Order 9 Rule 13 of the Code subject to theirpaying a cost of Rs.10,000/- to the plaintiff. The civil suit was accordingly restored to its original file for its disposal on merits inaccordance with law. It is against this order, the plaintiff has felt aggrieved and filed the present appeals by way of special leave in this Court.

Reasoning:
23. Now when we examine the facts of the case at hand keeping in view the law laid down in the case ofB Janakiramaiah Chetty(supra), we find that the plaintiffsevidence was recorded and his case was also closed. It is not in dispute that the defendants were placed ex parte on the date when the case was fixed for recording defendants evidence but the same was not recorded due to the defendants absence on the said date. In other words, it was a case where the defendants did not lead any evidence24. In such a situation arising in the case, in our view, the case at hand would not fall under Explanation to Order 17 Rule 2 of the Code because inordertoattract theExplanation,suchparty which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treatsuch party as present on that day and is accordingly empowered to proceed in the suit25. In this case, the party,who was absent and was proceededex partewas the defendants and they had not led any evidence whereas it was the plaintiff, who was present and had led his evidence26. In other words, if the plaintiff had remained absentand wasfoundtohaveledevidence,the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the plaintiff as present for passing appropriate orders. Such is, however,not the case here27. Similarly, in converse situation, if the defendants had remained absent (as has happened in this case) on that date and if it would have noticed that they had adduced the evidence either fully or substantially prior to the date on which they were proceededex parte, the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the defendants as present on that day for passing appropriate orders in the suit. Such is, however, again not the case hereWe are,therefore,of the view that since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Order 17 Rule 3 (b) read with Order 17 Rule 2 of the Code for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order 9 of the Code or could have made any other order as it thinks fit29. As mentioned above, the Trial Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree. Such decree, in our opinion, was an ex partedecree within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants.