Judgment:
ORDER
B. Sri Atchutananda Swamy, J.
1. The petitioner herein is the defendant in O.S.No.1495 of 1987 on the file of the District Munsif, Suryapet. The present revision petition was filed by her aggrieved by the orders passed by the District Munsif as well as the Subordinate Judge on an application filed by her in I.A.No.145 of 1993 seeking to set aside the ex parte judgment and decree given by the trial Court dated 9-02-1993.
2. The facts that led into filing of this revision petition are: the District Munsif posted O.S.No. 1495/87 pending on his file for recording the evidence of the plaintiff on 23-1-1993. After the chief-examination is over he adjoured the case to 4-2-1993 for cross-examination of P.W.I. But the petitioner's counsel in the trial Court was not present and no representation was made on that day. In those circumstances the District Munsif passed the following order:
'No cross-examination-No representation - Arguments heard'.
On 9-2-1993 after giving notice the District Munsif decreed the suit. Immediately the petitioner filed I.A.No.145 of 1993 under Order 9 Rule 13 , C .P .C. to set aside the ex parte order. But the District Munsif kept the application pending for more than one year and by order dated 28-3-1994 dismissed the application by holding that if really the counsel for the petitioner fell sick he would have filed an affidavit to that extent or he would have filed a memo on the date of adjournment. As such a course was not adopted, it is difficult to believe the version of the petitioner. Firstly, the practice of the trial Court in keeping the applications pending for years together is highly deplorable and deprecated. Admittedly, this application was filed on 1-3-1993 and it is after 13 months the District Munsif could find time to dispose of the application. The officer concerned is severely warned not to repeat this sort of performance in future. Be that as it may, aggrieved by the said order, the petitioner filed CM. A.No.6/94 under Order 43 Rule 1 (d) CPC, and the appellate Court while holding that there is sufficient cause for the petitioner's Counsel to be not present in the Court on the date of adjournment, he dismissed the appeal on the ground that no C.M.A can be preferred against the Judgment and decree passed on merits. Evidently, the Subordinate Judge did not notice the language of Order 17 Rules 2 and 3 of new C.P.C while dismissing the C.M.A. Order 17 Rules 2 and 3 speak inter alia:
Rule 2: Procedure if parties fail to appear on any 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 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.'
Rule 3: Court may proceed notwithstanding either party fails to produce evidence, etc..
Where any party to a suit to whom time has been granted fails to produce his evidence, orto 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.
From the above it is seen that where a party is absent the only course left to the Court is to follow the procedure prescribed under Order 17 Rule 3 (b) and as per the said rule the Court has to follow the procedure prescribed under Order 17 Rule 2. In fact the controversy raised in this petition is squarely covered by the decision in Prakash Chander Manchanda and Anr. v. Smt. Janki Manchanda, : [1987]1SCR288 wherein it was held that:
'It is clear that where a party is absent only course is as mentioned in Order 17 (3) (b) to proceed under Rule 2 It is therefore dear 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 9. 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 up to that date the Court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 Civil P.C. It is therefore clear that after this amendment in Order 17 Rules 2 and 3, Civil P.C. there remains no doubt and there is no possibility of any controversy'.
Keeping the legal position in mind, the examination of the facts in this case make it clear that the suit is till at the stage of recording the evidence of the witnesses on behalf of the plaintiff. On 23-1-1993 the respondent herein examined himself as P.W1 and the case is posted for cross-examination of P.W.I on 4-2-1993. It is not known whether the petitioner would have cross-examined the P.W.I and the plaintiff would have examined any other witnesses to substantiate his case or would have closed his evidence. But unfortunately, the District Munsif closed the evidence without giving any opportunity to the defendant. The District Munsif in his anxiety to dispose of the matter closed the trial of the case itself, heard arguments on the same day and reserved the Judgment. The Courts are not expected to deal the sufference of the litigant public in a pooh poohed manner leaving the procedural laws to the winds.
3. As the District Munsif proceeded with the case without giving any opportunity to the defendant, the same gives discretion to the Court to proceed only under Rule 3, and deliver judgment but that discretion is limited only in cases where a party is absent who has led some evidence or has examined substantial part of their evidence. But in this case the party that was absent did not open his case at all before the presiding officer disposed of the suit itself on merits. As the discretion vested in the Court was wrongly exercised in this case though the order is on merits, it has to be treated as an ex parte order and the petitioner is entitled to file an application under Order 9 Rule 13 C.P.C. seeking to set aside the ex parte order. In such an event, if the trial Court dismissed the application, only CM.A., will lie under Order 43, Rule 1(d) of C.P.C. and the party cannot be directed to file a regular first appeal as was held by the Subordinate Judge, in this case. The order of the Subordinate Judge, cannot be sustained in law as an application under Order 9 Rule 13 can be very much filed in this case in the light of the facts stated above.
4. During the course of arguments, having seen the order of the trial Court to find out the truth or otherwise of the averments made in the affidavit filed by the petitioner in support of the petition under Order 9 Rule 13, I directed the counsel for the petitioner to file affidavit of the Advocate who conducted the trial in the lower Court. Accordingly, the affidavit of the advocate was filed wherein the correctness of the averments made by the petitioner were admitted by the Counsel.
5. Accordingly the order of the Subordinate Judge as well as the District Munsif are set aside and a consequential direction is given to the trial Court to restore the suit to his file and dispose of the same on merits in accordance with law.
6. As the suit is of the year 1987, the District Munsif is directed to take up the trial on day to day basis and dispose of the same within one month from the date of receipt of the order.