Manoharan v. Vincent

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` THURSDAY, THE 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945 ``` ``` FAO NO. 67 OF 2023 ``` ``` AGAINST THE ORDER DATED 22.02.2023 IN R.P.I.A.NO.40/2022 IN OS 18/2015 OF SUBORDINATE JUDGE, IRINJALAKUDA ``` ## **`APPELLANT/PETITIONER/DEFENDANT:`** ``` MANOHARAN, AGED 62 YEARS S/O. KATTIKULAM SANKARAN, PORATHISSERY DESOM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR-, PIN - 680125 ``` ``` BY ADVS. K.M.MUHAMMED HUSSAIN ``` ``` K.V.SREE VINAYAKAN ``` ``` T.K.VIPINDAS ``` ``` MANUMON A. ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` VINCENT, AGED 43 YEARS S/O. MATHENCHIRA ANTHAPPAN, CHUNGAM DESOM, KARALAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-, PIN - 680711 ``` ``` BY ADVS. SANTHOSH P.PODUVAL ``` ``` R.RAJITHA(K/870/2005) CHITHRA S.BABU(K/376/2012) ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 25.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 F.A.O No.67 of 2023 ‘ **CR’** ## **JUDGMENT** ## G. Girish, J The dismissal of a petition filed under Order IX Rule 13 of the Code of Civil Procedure by the Additional Sub Court, Irinjalakkuda, is under challenge in this appeal filed by the defendant, who suffered a money decree in that suit. 2. O.S.No.18 of 2015, a suit for return of advance amount in an agreement for sale, was decreed by the Additional Sub Court, Irinjalakkuda on 30.03.2022 notwithstanding the fact that the defendant (appellant herein) did not adduce any oral or documentary evidence. According to the appellant, he was incapacitated from appearing before the trial court on 17.03.2022 and 19.03.2022, when the case was posted for defendant’s evidence, since he was hospitalized due to heart ailment. The trial court proceeded with the suit and passed a decree for realization of an amount of Rs.41,77,534/- with further interest, on 30.03.2022, as if the defendant (appellant herein) had contested the suit. A petition filed by the appellant as R.P.I.A.No.40 of 2022 under Order IX Rule 13 of the Code of Civil Procedure, for setting aside the above ex parte decree, was dismissed by the learned Sub Judge, as per the impugned order dated 22.02.2023, holding that the disposal of the suit, as per the judgment dated 30.03.2022, was one on merit, and 3 F.A.O No.67 of 2023 hence, the application under Order IX Rule 13 of the Code of Civil Procedure, is not maintainable. It is the above order of the learned Sub Judge, which is under challenge in this appeal. 3. Notice of this F.A.O. was duly served on the respondent, who is the plaintiff in O.S.No.18 of 2015 of the Additional Sub Court, Irinjalakkuda. The respondent did not appear before this Court or contest this appeal. 4. Heard the learned counsel for the appellant. 5. The point to be decided in this appeal is whether the impugned order dated 22.02.2023 passed by the Additional Sub Court, Irinjalakkuda in R.P.I.A.No.40 of 2022 in O.S.No.18 of 2015 is liable to be altered, set aside or modified. 6. A perusal of the judgment rendered by the Additional Sub Judge, Irinjalakkuda on 30.03.2022 in O.S.No.18 of 2015 would reveal that, in the said suit the plaintiff and two witnesses were examined as PW1 to PW3 and Ext.A1 marked as document from the part of the plaintiff, before the adjournment of the said case for defendant’s evidence. It is also observed in the impugned order of the learned Additional Sub Judge that all the above three witnesses from the part of the plaintiff were cross-examined by the learned counsel for the defendant (appellant herein). It is thereafter, that the appellant failed to appear before the trial court on the posting 4 F.A.O No.67 of 2023 dates for defendant’s evidence, prompting the learned Additional Sub Judge to proceed with the suit and render the judgment, as if it is a contested one. It seems that the observation of the trial Judge in paragraph No.8 of the judgment dated 30.03.2022 in O.S.No.18 of 2015 as “Heard both sides”, was the reason why the successor Additional Sub Judge concluded in the impugned order that the disposal of the said suit was on merit. 7. In the light of the averments in the affidavit sworn by the appellant in support of the application under Order IX Rule 13 of the Code of Civil Procedure about his inability to appear and adduce evidence in the suit at the time when it was posted for defence evidence, it is not possible to think that the learned counsel representing the appellant would have argued the case notwithstanding the absence of evidence proposed to be adduced from his part. The fact that the judgment dated 30.03.2022 of the learned Additional Sub Judge, Irinjalakkuda in O.S.No.18 of 2015 does not contain any reference with regard to any point canvassed from the part of the counsel for the defendant, opposing the plaint claim, would further give the indication that the observation of the learned Additional Sub Judge in paragraph No.8 of the judgment as “Heard both sides”, was only perfunctory, and made in the routine course. Thus, it is not possible to conclude, on the basis of the above 5 F.A.O No.67 of 2023 solitary observation in the said judgment, that the defendant (appellant herein) had contested the suit notwithstanding his inability to appear before the court and adduce evidence at the time when the case stood for defendant’s evidence. 8. Order XVII Rule 2 of the Code deals with the procedure to be followed, when the parties fail to appear on the adjourned date of hearing of the suit. The said provision is extracted hereunder for easy reference; ## **“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 orders 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.” 9. It is clear from the above provision of law that, if any of the parties to a suit fail to appear on the adjourned date of hearing, the court has to dispose of the suit in one of the modes directed under Order IX of the Code or make such order as it thinks fit. The Explanation to Order XVII Rule 2 of the Code makes it clear that the court may in its discretion proceed with the case, as if the party who 6 F.A.O No.67 of 2023 failed to appear on the adjourned day had appeared and contested the suit, if the evidence or a substantial portion of the evidence of such party has already been recorded. 10. Order XVII Rule 3 of the Code envisages the situation where any party to a suit to whom time has been granted, fails to produce his evidence or to cause attendance of his witnesses, or to perform any other act necessary for the further progress of the suit, for which time has been allowed. As per the said provision of law, the court may, notwithstanding such default, proceed to decide the suit forthwith, if the parties are present, or proceed under Order XVII Rule 2 of the Code, if the parties or any of them are absent. 11. As far as the present case is concerned, the trial court was expected to fall back on Order XVII Rule 2 of the Code, since admittedly the defendant (appellant herein) had not appeared, after the case was posted for the evidence of defendants. So also, the Explanation to Order XVII Rule 2 of the Code has no applicability to the facts and circumstances of the case, since no portion of the evidence of the defendant was recorded in the suit. Therefore, the judgment rendered by the learned Additional Sub Judge on 30.03.2022 in O.S.No.18 of 2015, cannot be termed as one on merit. 12. The proposition of law in this regard has been laid down by the Apex Court in **Prakash Chander Manchanda v. Janki** 7 F.A.O No.67 of 2023 ## **Manchanda [AIR 1987 SC 42]** . Relevant portion of paragraph 6 ## reads as follows: “6. ………………………….It is clear that in cases where a party is absent only course is as mentioned in Order XVII Rule 3(b) to proceed under Rule 2. It is therefore clear that in absence of the defendant, the Court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as now stands also clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order IX. The explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined upto that date the Court has no option but to proceed to dispose of the matter in accordance with Order XVII Rule 2 in any one of the modes prescribed under Order IX, Code of Civil Procedure. It is therefore clear that after this amendment in Order XVII Rules 2 and 3 of the Code of Civil Procedure there remains no doubt and therefore there is no possibility of any controversy. In this view of the matter it is clear that when in the present case on 30[th] October 1985 when the case was called nobody was present for the defendant. It is also clear that till that date the plaintiffs evidence has been recorded but no evidence for defendant was recorded. The defendant was only to begin on this date or an earlier date when the case was adjourned. It is therefore clear that upto the date i.e. 30[th] October, 1985 when the trial court closed the case of defendant there was no evidence on record on behalf of the defendant. In this view of the matter therefore 8 F.A.O No.67 of 2023 the explanation to Order XVII Rule 2 was not applicable at all. Apparently when the defendant was absent Order XVII Rule 2 only permitted the Court to proceed to dispose of the matter in any one of the modes provided under Order IX.” 13. Following the above decision of the Apex Court, a learned Single Judge of this Court in **Sebastian Jayaseelan v. Revathy** **Enterprises [2001 (1) KLT 552]** has observed in paragraph No.5 as follows: “5. The Apex Court had occasion to go into the scope and ambit of the aforesaid provision in Prakash Chander (supra). That was a case where on the date fixed for trial, the defendant remained absent and no evidence was adduced on his behalf. The Court proceeded to dispose of the suit on the merits. Subsequently, an application was filed under Order IX Rule 13 of the CPC. The Apex Court held that where a party is absent the only course available is as mentioned in Order XVII Rule 3(b) to proceed under Rule 2. In the absence of the defendant, the court will have no option but to proceed under Rule 2. If any one of the parties fails to appear, the court has to proceed to dispose of the suit in one of the modes directed under Order IX. The explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent; but that discretion is applicable only in cases where a party who is absent has led some evidence or has adduced substantial part of his evidence. If on the date fixed, one of the parties remain absent and for that party no evidence is adduced upto that date, the Court will have 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 CPC. Considering the fact that on the date when the evidence of defendant was 9 F.A.O No.67 of 2023 closed nobody appeared for the defendant, the Hon'ble Supreme Court held that the disposal can be taken as under Order XVII Rule 2 and an application under Order IX Rule 13 would be maintainable.” 14. Thus the finding of the learned Additional Sub Judge in the impugned order that the disposal of O.S.No.18 of 2015 as per the judgment dated 30.03.2022 was one on merit, is erroneous and against the settled position of law in this regard. 15. As a conclusion to the above discussion, we find that the impugned order of the learned Additional Sub Judge, Irinjalakkuda, dismissing the petition filed by the appellant under Order IX Rule 13 of the Code of Civil Procedure, is liable to be set aside and reversed. In the result, the appeal stands allowed as follows; - (i) The order dated 22.02.2023 of the Additional Sub Judge, Irinjalakkuda in R.P.I.A.No.40 of 2022 in O.S. No.18 of 2015, stands set aside and reversed. - (ii) The ex parte decree dated 30.03.2022 passed by the Additional Sub Judge, Irinjalakkuda in O.S.No.18 of 2015, is set aside, and the suit is restored to files. - (iii) The parties are directed to appear before the trial court on 15.02.2024, for further proceedings in the suit. - (iv) Upon such appearance, the learned Sub Judge shall proceed with the suit from the stage when the evidence for plaintiff was closed, and afford 10 F.A.O No.67 of 2023 sufficient opportunity for the defendant to adduce evidence. - (v) Being a suit of the year 2015, the learned Sub Judge shall make every endeavour to dispose of the suit, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment. (sd/-) (sd/-) **G. GIRISH, JUDGE** vgd