CRP PD/1478/2003 of E.A.CHANDRASEKARAN Vs VENKATACHALAM on 17 December 2003

:COMMON ORDER

Both the above Civil Revision Petitions have been filedagainst the fair and decretal order dated 30.4.2003 respectively made inI.A.Nos.236 and 237 of 2003 in O.S.No.1370 of 2002 by the Court of SubordinateJudge, Namakkal, thereby allowing the Interlocutory Applications filed by therespondents herein under Order IX, Rule 13 r/w Order XVII, Rule 2 & Section151 C.P.C. praying to set aside the decree passed by the said Court.

2. Tracing the history of the case, what comes to be known is that the petitioner herein filed the suit in O.S.No.733 of 1996 before thisCourt, which was later transferred to the Court of Subordinate Judge, Sankariand re-numbered as O.S.No.762 of 1997 and on point of jurisdiction it wasagain transferred to the Court of Subordinate Judge, Namakkal and re-numberedas O.S.No.1370 of 2002 praying to direct the defendants to execute andregister a sale deed in favour of the plaintiff or his nominee or nominees, ofthe schedule property after receiving the balance sale consideration ofRs.1,75,000/-, to hand over vacant possession of the suit property, to paymesne profits from the date of filing of the suit till delivery of the suitproperty and alternatively direct the defendants to pay the plaintiff a sum ofRs.11 ,00,000/- with interest at 12% per annum from the date of suit tillrealisation and for that purpose create a charge over the suit properties infavour of the plaintiff, for a permanent injunction restraining the defendants2 and 3 and the 1st defendant, power of attorney agent from in any mannercreating any kind of documents and restraining them from in any manneralienating and encumbering the suit property till final disposal of the suitand for costs; that the suit was contested by the respondents herein; that thesuit was decreed in favour of the petitioner herein; that the respondents 2and 3 herein have filed I.A.No.287 of 2003 and the first respondent herein hasfiled I.A.No.286 of 2003 under Order IX, Rule 13 r/w Order XVII Rule 2 andSection 151 of C.P.C. praying to set aside the decree on the ground that thedefendants were not examined as witnesses to put forth their substantialrights and that no opportunity was given to them to crossexamine P.W.1; thatthough the suit was posted for cross-examination of P.W.1 on 5.12.2002 theywere not able to cross-examine P.W.1, because of P.W.1 was not present on thatday; that the defendants were not also given opportunity to enter defence.

3. The learned Subordinate Judge, after considering the reasons

3. The learned Subordinate Judge, after considering the reasons assigned on the part of the defendants and the defence taken on the part ofthe petitioner herein, also following the decision of the Apex Court cited onthe part of the defendants would ultimately allow the applications, therebysetting aside the judgment and decree dated 5.12.2 002 made in O.S.No.1370 of2002. It is only testifying the validity of the said fair and decretalorders, the petitioner has come forward to file the above Civil RevisionPetitions on grounds that the suit itself was decreed on merits, theprovisions under Order IX Rule 13 C.P.C. would not be applicable; that theimpugned order was passed without jurisdiction since the decree was passedunder Order XVII Rule 3 C.P.C. and was based on a detailed judgment; that theimpugned order has been passed without noting that the decisions cited thereinhave no relevance to the facts of the case and therefore, the impugned orderis not sustainable in law and ought to be set aside.

4. During arguments, the learned counsel appearing on behalf of the Revision Petitioner in both the above Civil Revision Petitions besides tracingthe history of the case right from the beginning would arrive at the pointthat in the suit written statement was filed on 25.3.1997; that nearly 6 yearsthe matter has been kept pending for trial to be completed; that the suititself was dismissed for default on 29 .7.1999 and thereafter it was restoredon 11.8.2002; that the trial commenced on 21.11.2002 and the decree was passedin the suit on 5.12.2002 on a detailed judgment.

5. At this juncture, the learned counsel would cite the followingjudgments:

(1) An unreported judgment passed by the Supreme Court of India in CivilAppeal Nos.2690 and 2691 of 2003 dated 3.4.2003.(2) 1987(1) MLJ 20 (B.CHAMPALAL JAIN vs. M/S.CHEWARCHAND ASHOK KUMAR AND CO.REP. BY CHEWARACHAND PARICK-I)

(3) 2000(2)T.L.N.J. 285 (ARUMUGHA GOUNDER AND OTHERS vs. TMT. PALANIAMMAL

AND OTHERS)

6. In the first judgment cited on the part of the petitioner, since the defendants 1 to 3 were called absent, the trial Court had decreedthe suit as prayed for and thereafter the defendants had filed an Applicationunder Order 9 Rule 13 of the CPC before the trial Court to set aside the saidjudgment and decree and on the said petition having been allowed by the trialCourt, a revision had been filed before the High Court by the plaintiff andthe same also having been dismissed, he had filed the Civil Appeal before theHonourable Apex Court. The Honourable Apex Court giving expression to OrderXVII Rules 2 and 3 of C.P.C. and extracting the said Rules, would remark thatthe case was having imprints of an ex-parte adjudication and not of a decisionon merits and there was not even any indication as to what evidence wasevaluated and/or whether the merits were tested and had ultimately decided inthe following terms:

“we find no infirmity in the impugned judgment to warrant interference. Theappeals are dismissed but with no order as to costs.”

7. In the second judgment cited on the part of the petitioner, a learned single Judge of this Court has held:

The Court below when it closed the evidence and proceeded with the mattersubsequently, it did proceed with the case under Or.17, R.3(a) C.P.C. But byvirtue of the Explanations attached to Rule 2 of Or.17, C.P.C., if substantialportion of the evidence of any party had already been recorded and such partyfails to appear on any day to which the hearing of the suit is adjourned, theCourt may in its discretion, proceed with the case as if such party were present.

8. In the third judgment cited on the part of the petitioner, after

the closure of both sides' evidence and at the time of arguments, the learnedcounsel for the defendants reported no instructions. In such circumstances,the learned trial Judge had proceeded to decide the matter on merits anddecreed the suit as prayed for, which was taken on appeal by the defendantsand a learned single Judge of this Court while discussing the powers of theCourt under such circumstances and giving expression to Order 17, Rule 2C.P.C. had dismissed the appeal suit filed by the defendants. Citing theabove judgments, the learned counsel for the revision petitioner would pray toallow the civil revision petitions.

9. On the part of the respondents also the following judgments wouldbe cited by their counsel:

(1) (2003)2 M.L.J. 186 (S.C) (B.JANAKIRAMAIAH CHETTY vs. A.K. PARTHASARATHIAND OTHERS)

(2) AIR 1987 SUPREME COURT 42 (PRAKASH CHANDER MANCHANDA AND ANOTHER vs.

SMT.JANKI MANCHANDA)

(3) 1988-1- L.W.368 (M.A.SUYAMBULINGAM vs. V.K.SWAMINATHAN AND ANOTHER)

10. In the first judgment cited above on the part of the respondents,the Honourable Apex Court has held:

“In the absence any indication as regards merits of the case, preferring anappeal will be really inconsequential. It is more so when no definite groundof appeal can be pressed into service, except making generalized challenges.It certainly cannot be the legislative intent.”

11. In the second judgment cited above on the part of the respondents, the Honourable Apex Court has held:

If on a date fixed,one of the parties to the suit remain absent and for thatparty no evidence has been examined up to that date, the Court has no optionbut to proceed to dispose of the matter in accordance with O.17,R.2 in any oneof the modes prescribed under O.9 of the Civil P.C. After the Amendment byAct 104 of 1976 to O.17 Rr.2 and 3 in cases where a party is absent onlycourse is as mentioned in O.17, R.3(b) to proceed under R.2. Therefore, inabsence of the defendant, the Court had no option but proceed under R.2.Similarly the language of R.2 as now stands also clearly lays down that if anyone of the parties fails to appear, the Court has to proceed to dispose of thesuit in one of the modes directed under O.9. The explanation to R.2 gives adiscretion to the Court to proceed under R.3 even if a party is absent butthat discretion is limited onl y in cases where a party which is absent hasled some evidence or has examined substantial part of their evidence.

12. In the third judgment cited above on the part of the respondents,the Honourable Apex Court has held:

According to the explanation, to O.17, R.2, C.P.C. the party failing toappear should have let in evidence or a substantial portion of the evidence inorder to enable the Court to proceed with the case as if the party werepresent. In this case the first defendant has not let in any evidence in thiscase. Only the plaintiff had let in evidence and the second defendant alsohas let in evidence. The contesting first defendant had not entered on hisdefence, so to say, by giving any evidence and his counsel withdrew hisappearance during the examination to P.W.1. In such circumstances, in view ofthe Explanation to R.2 of O.17, it could not be said that the first defendantshould be treated as having begun his part of the case in the suit, entitlingthe court to proceed with the case as if he was present. In thecircumstances, the treatment of the case as ex parte was right and does notcall for any interference."

13. In the last judgment cited above on the part of the respondents, even though the defendant was present in the Court, she did not participate inthe hearing and her counsel was also absent and hence an ex parte decree waspassed against her. The application filed by the defendant to set aside theex parte decree was dismissed on ground that only an appeal would lie againstsuch a judgment and that the application under Order 9 Rule 13 CPC was notmaintainable. Aggrieved, the defendant preferred the Civil MiscellaneousAppeal wherein a learned single Judge of this Court has held:

"In the instant case, the defendant was present, but her counsel was not present at the time when the case was adjourned. The defendant, even thoughwas physically present, was incapable of participating in the proceedings,being a widow and not knowing the procedure of court. The defendant washelpless in such a situation, as she could not proceed without the assistanceof her advocate. In the circumstances, the order passed by the lower Courtcannot be construed as an order under Order 17 Rule 3 CPC. It has to beconstrued as an order under Order 17, Rule 2 CPC and the application filedunder Order 9 Rule 13 CPC is maintainable."

Citing the above judgments, the learned counsel for the respondents wouldsubmit that the Court below has considered all the facts and circumstances ofthe case in the manner expected by law and hence no interference of this Courtis required and would pray to dismiss the above civil revision petitions.

14. In consideration of the facts pleaded, having regard to thematerials placed on record and upon hearing the learned counsel for both, whatcomes to be known is that it is a suit which was originally filed in the year1996 before this Court and thereafter it had been transferred to the Court oforiginal jurisdiction, the Court of Subordinate Judge, Sankari with adirection to dispose of the matter within three months and thereafter oncreation of a new District Namakkal, administratively, the case has beentransferred to the present Court wherein the suit is pending i.e. in theCourt of Subordinate Judge, Namakkal and got re-numbered as O.S.1307 of 2002.Therefore, it has to be remembered that it is a case which is kept pending forseven years.

15. In the meantime, the trial Courts have carried on their exerciseof trying the said suit and ultimately even the suit had been finally disposedof decreeing the same with costs in favour of the petitioner herein and atthis juncture, the respondents 2 and 3 herein have filed I.A.No.237 of 2003and yet another I.A.No.236 of 2003 has been filed by the first respondentunder Order 9 Rule 13 r/w.Order 17 Rule 2 and Section 151 CPC praying to setaside the decree on ground that the defendants were not examined as witnessesto put-forth their substantial rights and that no opportunity was given tothem to crossexamine P.W.1. These two Interlocutory Applications having cometo be allowed by the trial Court itself, the petitioner has come forward tofile the above civil revision petitions on certain grounds as brought forthand traced supra.

16. During arguments, three decisions would be ushered in on the partof the petitioner and on the part of the respondents, four decisions have beencited justifying the order passed by the trial Court in allowing thoseapplications.

17. It may be pointed out that the decisions cited on the part of thepetitioner have been rendered by the respective Courts mentioned thereinadhering to the facts and circumstances encircling those cases dealt with bythem and they have little application to the facts of the case in hand. Onthe contrary, the decisions cited on the part of the respondents herein revealthat `in the absence of any indication as regards merits of the case,preferring an appeal will be really inconsequential; that it is more so whenno definite ground of appeal can be pressed into service except making generalized challenges, which certainly cannot be the legislative intent' asit has been held by the Honourable Apex Court in the judgment reported in(2003) II M.L.J. 186 (SC), further giving expression to Order 17 Rules 2 and3 and Order 9 of the CPC, so far as the other judgments on the part of therespondents are concerned and therefore, no d oubt, adopting three of the fourjudgments cited by the respondents herein and in full consideration of thosepropositions held by the upper forums, the lower Court has arrived at thevalid conclusion to allow the two Interlocutory Applications filed by therespondents herein.

18. Further more, in its recent judgment delivered in SUKANYAHOLDINGS (P) LTD. vs. JAYESH H.PANDYA AND ANOTHER reported in (2003) 5 SCC531, the Honourable Apex Court has held:

"For interpretation of Section 8 (of the Arbitration and Conciliation Act),Section 5 would have no bearing. Except Section 8, there is no otherprovision in the Act that in a pending suit, the dispute is required to bereferred to the arbitrator. Further, the matter is not required to bereferred to the Arbitral Tribunal, if (1) the parties to the arbitrationagreement have not filed any such application for referring the dispute to thearbitrator; (2) in a pending suit, such application is not filed beforesubmitting first statement on the substance of the dispute; or (3) suchapplication is not accompanied by the original arbitration agreement or dulycertified copy thereof. This would, therefore, mean that the Arbitration Actdoes not oust the jurisdiction of the civil court to decide the dispute in acase where parties to the arbitration agreement do not take appropriate stepsas contemplated under sub-sections (1) and (2) of Section 8 of the Act."

19. When such is the legal position as clarified by the HonourableApex Court in matters of such nature, this Court does not see any valid reasonto cause its interference into the well considered and merited order passed bythe Court below and hence the following order:In result,

(i) the above civil revision petitions do not merit acceptance and they becomeliable only to be dismissed and are dismissed accordingly.

(ii) The common fair and decretal order dated 30.4.2003 made in I.A. Nos.236and 237 of 2003 in O.S.No.1370 of 2002 by the Court of Subordinate Judge,Namakkal is hereby confirmed.

However, in the circumstances of the cases, there shall be no order asto costs.

Consequently, C.M.P.Nos.10515 and 10516 of 2003 are also dismissed.

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