FRANCIS PETER Vs. RAJAMMA PILLAI
HIGH COURT OF KERALA
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(1.)The respondent in this Civil Revision Petition, had sued the first defendant, whose legal representatives are the revision petitioners, in O. S. 174 of 1957 of the court of the Additional Munsiff at Alleppey. That suit was to set aside a decree and. execution proceedings in another suit. After the settlement of issues and after a few postings, the suit came on for trial on the 13th October 1958, when both parties applied for adjournment. The hearing was adjourned to the 25th November, 1958, when both parties again applied for adjournment. The case was then posted for evidence and for the examination of parties on the 12th January 1959, when the defendant and his advocate were not present and did not apply for adjournment; on that date the plaintiff was examined and the suit decreed. The defendant applied under O.9 R.13 on the 22nd January, 1952, alleging that he was not aware of the posting on the 12th January, but that he was under the impression that the case was adjourned to the 22nd January. The Trial Court dismissed the application on the ground that the decision of the suit was on the merits and therefore his application under O.9 R.13 was not maintainable and that even otherwise, there was no sufficient ground for non appearance. On appeal by the first defendant, the Subordinate Judge held that the disposal of the suit was on the merits and dismissed the appeal without considering whether sufficient cause had been made out for non appearance. This Civil Revision Petition is directed against the order of the Subordinate Judge.
(2.)If the disposal was under O.17 R.2, the case must go back to the Subordinate Judge for considering whether there was sufficient cause. As contended for the plaintiff on the authority of the decisions in Rameshwar v. Rajasthan Government, AIR 1962 Allahabad 515, and Parvathi Pillai v. Kuttan Pillai, 1961 KLT 178 in order that O.17 R.3 might apply, the hearing of the suit should have been adjourned on the application of the party who subsequently made the default. This seems to follow on the language of O.17 R.3. In the Allahabad case, the adjournment was on the application of the party who committed default on the adjourned date of hearing and so on this ground, and on the terms of O.17 R.2 and 3 as they are in force in Allahabad, the disposal was held to be on the merits. In the Kerala case the position was the reverse.
(3.)However that be, in the present case the adjournment was also on the application of the plaintiff who did not commit default on the adjourned date of hearing. So the disposal of the suit came also within the scope of O.17 R.2. In case of default under O.17 R.3 coupled with default under O.17 R.2, the preponderance of judicial opinion is that the disposal must be held to be under R.2 and not R.3. A full bench of the High Court of Madras has held so in Prativadi Bhayankaram Piohamma v. Kamisetti Sreeramulu AIR 1918 Mad. 143 , and this has been followed in later cases. See Uppalapati Venkataratnam v. Uppalpati Apparao, AIR 1948 Mad. 80 . A similar view has been held in other High Courts too. The views of the different High Courts have been summarised by Mulla in Civil Procedure Code, 12th Edition, page 715. In Allahabad by an amendment of R.2 and 3 of O.17 the position may be somewhat different, for R.3 is expressly made applicable only to cases where R.2 does not apply, and further even under R.2, in certain circumstances a decree on the merits could be passed. In this state of the case law, I do not think it necessary to go against the current of judicial decisions. I hold that the disposal was under O.17 R.2 and not under R.3. The Civil Revision Petition is allowed and the case is sent back to the Subordinate Judge for considering whether sufficient ground has been made out for setting aside the decree. No costs.
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