Haramani Mohapatra and ors. Vs. Smt. Annapurna Sahoo - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - rule 2 deals with procedure in a case where parties fail to appear on a day fixed. 5. provisions of order 9 by themselves do not apply to a case in which the plaintiff or defendant has already appeared but has failed to appear at an adjourned hearing of the suit. it follows that the party against whom such an order is made, has at its disposal the remedies available under order 9. if both parties fail to appear at an adjourned hearing, the court may make an order dismissing the suit under rule 2 of order 17 and order 9, rule 3. in such an event, the plantiff, if so advised, may bring a fresh suit or apply for an order to set aside the dismissal under order 9, rule 4. rule 2 of order 17 deals with a situation when on a day to which hearing of the suit is adjourned, there is failure in appearance by the parties or any one of them. 6. rule 3 of order 7 had application when a party to whom time has been granted to produce his witness, or to cause attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time has been allowed, has failed to do the concerned act. in order to attract rule 3, two conditions must be satisfied, i. party or his pleader is present in the court but there is a failure to do any of the three acts enumerated in the rule. 2 was suffering from typhoid and bad ridden, and petitioner no, 3 was engaged in treatment of the other two. it is also submitted that the background of the facts clearly indicates that it would be a case of iat6nt non-appearance, though there may have been patent appearance. the records clearly indicate that there was reluctance on the part of the counsel appearing for the defendants to cross-examine the witnesses.a. pasayat, j.1. petitioners call in question legality of or jar passed by learned subordinate judge, puri, refusing to accept petitioners' prayer to set aside ex parte decree passed in o.s. no. 25 of 1988 and order passed by learned district judge, puri, in misc. appeal no. 153 of 1993 affirming the aforesaid order.2. a brief reference to the factual position, which is almost undisputed, is necessary for disposal of this application. opposite party filed the suit in question for specific performance of contract. petitioners were impleaded as defendants. a joint written statement was filed by them. on 19-1-1990 issues were settled and suit was posted to 28-3 1990 for fixing date of hearing. thereafter the matter was adjourned from time to. time and was finally posted for hearing to 20-4-1992. on that day, memorandum of appearance was the plaintiff -oppsite party who was present with witnesses. they were examined and certain documents were marked as exhibits. advocate for the petitioners was present, pw 1 was cross-examined, but thereafter there was no cross-examination of pws 2 and 3. learned subordinate judge treated the same to have been declined as petitioners' advocate though present did not participate. it was also concluded that defendant - petitioners did not intend to adduce any evidence. the matter was accordingly closed and on 28-4-1992 judgment was delivered showing that the suit was disposed of on contest. on 8-5-1992 petitioners filed mjc no. 102 of 1992 purporteldy under order 9, rule. 13 of the code of civil procedure, 1908 (in short 'code') to set aside the judgment and decree dated 28-4-1992. the opposite party contested the prayer and challenged maintainability of the case. learned subordinate judge held that the matter is covered under order 17, rule 2, of the code, and therefore, application to set aside the decree in - terms of order 9, rule 13 of the code was not maintainable, the conclusion was affirmed by learned district judge, puri.3. miss. d. mohapatra, learned counsel for petitioners submits that courts below proceeded on erroneous premises about applicability of order 17, rule 3 and non-applicability of order 9, rule 13 of the code. according to her, this is a case covered under explanation to rule 2 of order 17. alternatively it is pleaded that a junior counsel who was assisting the main counsel in the suit was present. no memorandum of appearance of the defendants was filed. junior counsel had moved for adjournment which was declined and, therefore, left with no other option, she put a formal question in cross-examination to pw 1. she also expressed her inability to cross-examine the other witnesses, i. e. pws 2 and 3, in the absence of the senior counsel. this was treated to be denial to cross-examine by learned subordinate judge. there was no appearance in the strict sense of the terms, and therefore, provisions of order 9, rule 13 are squarely applicable. learned counsel for the opposite party, on the other hand, contended that order 9, rule 13 comes into operation when the matter is decided - exparte. since the suit itself was treated to have been disposed of on contest, there is no scope for application of order 9, rule 13, and conclusions of the courts below are irreversible.4. at this juncture it is relevant to refer to various rules of orders 9 and 17. rule 1 of order 17. deals with power of the court-to grant time and adjourn hearing. rule 2 deals with procedure in a case where parties fail to appear on a day fixed. it provides that on a day to which the hearing of the suit is adjourned, if the parties or any one of them fails, to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by order 9 or make such other order as it thinks fit. rule 3 of order 9 deals with the situation when neither party appears. it is provided therein that when neither party appears when the suit is called on for hearing the court may order that the suit be dismissed. rule 6 of order 9 deals with procedure when only plaintiff appears and rule 8 thereof deals with the procedure when only defendant appears. explanation to rule 2 of order 17 provides that 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. according to learned counsel for the petitioner, the expression 'any party'' appearing in the explanation covers both the plaintiff and defendant and, therefore, the court was obliged to proceed with the case as if the defendants (the present petitioners) were present. the submission is without any basis. use of the expression 'such party' in the explanation makes it abundantly clear that it has application where evidence of either the plaintiff of the defendant has already been recorded, and 'such party' meaning th3 party whose evidence has been recorded fails to appear on the day to which the suit is adjourned courts below have proceeded on the basis that the case at hand is. covered ay rule 3 of order 17. this provision has application where any party to a 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 in such a case the court may, notwithstanding such default, if the parties are present, proceed to decide the suit forthwith, or if the parties are, or any of them is absent proceed under rule 2 the case at hand does not fall to that category. 5. provisions of order 9 by themselves do not apply to a case in which the plaintiff or defendant has already appeared but has failed to appear at an adjourned hearing of the suit. in such a case provisions laid down in order 17 which deal with adjournments are applicable. if the defendant fails to appear not at an adjourned hearing but at the first hearing order 17, rule 2 of the code does not apply and decree is ex party under order 9, rule 6 of the code if th3 defendant does hot appear at an adjourned hearing, irrespective of whether or not he appeared at the first hearing, order 17, rule 2 applies and the court is given the widest possible discretion either to dispose of the suit in one of the modes directed in that behalf by order 9 or make-such other order as it thinks fit (see air 1955 sc 425, sangram singh v election tribunal). the effect of rule 2 of order 17 is to assimilate the procedure in cases where there is default of appearance at an adjourned hearing the result is that though a party may have appeared in the first hearing but fails to appear at an adjourned hearing, the procedure laid down in order 9 will apply. if the plaintiff fails to appear at an adjourned hearing, the court may make an order dismissing the suit under this rule and order-9, rule 8 and the plaintiff may, if so advised, then apply under this rule and order 9, rule 9 for an order setting the dismissal aside and no appeal lies in such a case. if the defendant fails to appear at an adjourned hearing, the court may pass an ex party decree under this rule ' and order 9, rule 8, and in order event defendant may apply under rule and order 9. rule 13 for an order to set it aside. this is because rule 2 of order 17 makes order 9 applicable and court disposes of the suit according to the provisions of that order. it follows that the party against whom such an order is made, has at its disposal the remedies available under order 9. if both parties fail to appear at an adjourned hearing, the court may make an order dismissing the suit under rule 2 of order 17 and order 9, rule 3. in such an event, the plantiff, if so advised, may bring a fresh suit or apply for an order to set aside the dismissal under order 9, rule 4. rule 2 of order 17 deals with a situation when on a day to which hearing of the suit is adjourned, there is failure in appearance by the parties or any one of them. in such a situation, the court is given two alternative discretions, i. e. either (i) to dispose of the suit in one of the modes prescribed by order 9, or (ii) to make such other order as it thinks fit. in the instant case, there was no default on the part of the plaintiff-opposite party who was present along with her witnesses. therefore, the explanation to rule 2 of order 17 has no application to the case of the plaintiff, and consequentially to that of the facts of the case. the explanation operates only 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.6. rule 3 of order 7 had application when a party to whom time has been granted to produce his witness, or to cause attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time has been allowed, has failed to do the concerned act. plaintiff is not covered by this situation in the case at hand. further, time was not granted to defendant-petitioners to produce evidence or to cause the attendance of their witnesses, or to perform any other act necessary to the further progress of the suit. therefore, rule 3 had no application. in order to make rule 3 applicable the party must have made default in one of the modes specified in the rule. rule 2 applies whenever there is a default of appearance by the party. in order to attract rule 3, two conditions must be satisfied, i.e.(1) the suit must have been adjourned at the instance of the party to carry out any of the things set out in the rule, and (ii) there must be default by that party in carrying it out. rule 2 applies where a party or his pleader is not present in court whereas rule 3 applies even if the. party or his pleader is present in the court but there is a failure to do any of the three acts enumerated in the rule.7. according to miss. mohapatra, mere physical presence without an effective participation cannot be strictly called an appearance. with reference to the only question put in the cross-examination to pw 1, it is stated that in a hotly contested suit, such an informal question is never put this, according to her, is sufficient to show that the counsel though physically present was unable to assist the court and, therefore, had put an informal question, because prayer to adjourn the suit was refused. it is also submitted that in the application under order 9, rule 13 of the code relevant aspects were highlighted and it was specifically pleaded that the defendants were not in a position to come to assist the court as petitioner no. 1 an elderly lady was suffering from heart ailments, petitioner no. 2 was suffering from typhoid and bad ridden, and petitioner no, 3 was engaged in treatment of the other two. certificates from the treating doctors were also tiled. while dealing with the application styled as one under order 9. rule 13 learned subordinate judge observed that the advocate for the defendants was present and in , the presence of the parties, the suit was opened. it was further observe:) that though the learned counsel who was present for the defendants, namely. miss. p. mohanty, was initially participating in the hearing of the suit, she later on declined to cross-examine pws 2 and 3, after putting a question to pw 1. it was held to be a case of participation, and not a case of ex parte disposal and, therefore, order 9. rule 13 has no application. there is a distinction between a case where a counsel appears for reporting no instructions, and a case where a counsel appears and requests for adjournment. in the former the act is in accord with his duty to be cast, and the latter the act is on behalf of the party. a third case is hypothetically possible. when a counsel reports no instruction after adjournment is refused, it does not tantamount to non-appearance of the party. there is no difference in such appearance of the counsel and the appearance of a party to whom he represents. it is of course true that it is appearance for the purpose of prosecuting case or suit pending in court which is material. and not mere physical presence or appearance. see air 1964 orissa . 246, mulia maharana v. narayan patra and anr., air 1967 orissa 152, k. seethamma v. k. kame swar rao and ors., and air 3970 orissa 149, hindusthan steel ltd. v. prakash chand agarwal and anr. it would all depend upon facts of each case and no strait-jacket formula can be laid down.8. when there is appearance of a party, it certainly however cannot be said that the suit proceeded in the absence of the concerned party. the courts below were, therefore, justified in holding that order.9- rule 13 had no application to the facts of the case. at the same time the conclusion that the case was covered under order 17, rule 3 is not legally sound. rule 2 has also no application because that is applicable to a case where a party fails to appear in the case at hand, the courts below held that both the parties appeared and that is how the suit was held to have been disposed of on contest. since older 9, rule 13 had no application, the conclusions of the courts below cannot be faulted. miss. mohapatra states that the time for filing an appeal is over and the petitioners shall be highly prejudiced if they are not permitted to file an appeal because they were pursuing their remedy on a bona fide belief. it is also submitted that the background of the facts clearly indicates that it would be a case of iat6nt non-appearance, though there may have been patent appearance. the records clearly indicate that there was reluctance on the part of the counsel appearing for the defendants to cross-examine the witnesses. the court treated the reluctance to be a denial to cross-examine. this appears to be a case where there was some participation, though not complete participation.9. technically the learned subordinate judge was justified in adopting the course he chose to adopt, but whether the intention of the party was realty to abandon cross-examination in a case which involves disputed points is a matter which canbe gone into by the appellate court in greater detail if an appeal is filed. miss. mohapaua states that an appeal shall be filed by 26-9-1994 with an application for condonation of delay. if that is so done, the appellate court shall condone the delay and admit the appeal for disposal on merits, if it is otherwise free from defects. if the appellate court finds that defendants were really inconvenienced and the appearance of counsel was without heart in it and without proper instruction it shall consider the effect of it on the disposal o! the suit. procedures are intended to aid fair dispensation of justice. they are intended to aid smooth progress of justice and not to create stumbling blocks. a code of procedure is designed to facilitate justice and further its ends. it is not a penal enactment for punishment and penalties. the order relating to stay of execution proceeding passed by this court shall be operative till 26-9-1994.the civil revision is accordingly disposed