Suit for redemption of mortgage and for permanent injunction in relation to the mortgaged property. – The plaintiff examined himself as PW1. The defendants crossexamined the plaintiff. Thereafter, the plaintiff closed his case. The case was accordingly posted for recording defendants’ evidence. At that stage of the proceedings, the
defendants did not appear in the suit and, therefore, the Court proceeded ex parte against them. The proceedings in the suit then continued as ex parte against the defendants. The plaintiff then got himself reexamined in the proceedings. He, however, could not be recrossexamined by the defendants because they were already proceeded ex parte in the proceedings. 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. -IA No. 341/2006 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 IA No.340/2006 filed for condonation of delay in filing the application under Order 9 Rule 13 of the Code.- By order dated 14.03.2006, the Single Judge dismissed both the applications and held that the application filed by defendant No.1 under Order 9 Rule 13 of the Code was not maintainable because the preliminary decree dated 25.02.2003 was not an “ex parte decree” -The Division Bench, therefore, allowed the application filed by defendant No.1 under Order 9 Rule 13 of the Code subject to their paying a cost of Rs.10,000/ to the plaintiff. –
Whether the decree is an exparte decree ?
Apex court held that
whether the remedy under Order 9 is lost or not what is necessary to be seen is whether in the first instance the Court had resorted to the Explanation of Rule 2.
The Explanation permits the court in its discretion to proceed with a case where
substantial portion of 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.
For application of the provision, the court has to satisfy itself that:
(a) substantial portion of the evidence of any party has been already recorded;
(b) such party has failed to appear on any day; and
(c) the day is one to which the hearing of the suit is adjourned.
Rule 2 permits the court to adopt any of the modes provided in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The Explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the court to act under the specified circumstance i.e. where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned.
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 evidence. 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 in order to attract the Explanation, “such party” 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 treat “such party” as “present” on that day and is accordingly empowered to proceed in the suit.
We 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 fit.
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 parte decree” 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.
we are of the view that the Division Bench was justified in allowing the applications filed by defendant No.1 under Order 9 Rule 13 of the Code and, in consequence, was justified in setting aside the preliminary decree dated 25.02.2003 passed in O.S. No.131/1999 treating the said decree as “ex parte decree”.