- (1.) THIS is defendant's First Appeal. The plaintiff had filed a suit for the recovery of Rs. 19,945/- on the basis of a pronote dated 5-10-1971 for Rs. 7000/- and another pronote dated 6-10-1971 for Rs. 6000/- each of them carrying interest at the rate of Rs. 18/per cent per annum. The defendant filed written statement raising several pleas. One of the pleas raised was that the document was not executed at Lalitpur as contended by the plaintiff but had been executed at Bhopal and the Court had no jurisdiction to try the suit. A legal plea was taken regarding the bar of U. P. Regulations of Money Lending Act.
(2.) AFTER the issues had been framed in the case on 7-9-1977 the first date of hearing was fixed for 8-10- 1977. On that date the defendant applied for adjournment on account of illness and the Court fixed 16- 11-77. On that date the defendant moved an application 41-A by which the defendant prayed for filing handwriting experts report about the signature of the plaintiff on the receipt filed, by her. Another application was moved for directing the plaintiff to give specimen signature so that the same may be sent for examination by an expert. Both these applications were directed to be put up on 22-12-1977, as the court had no time that day. On that date the Presiding Officer was on leave and, therefore, the suit was directed to be put up on 21-1-1978. Prior to this also the defendant had moved an application 35-C as early as on 7-9-1977 for examination of the receipt signed by the plaintiff by an handwriting expert and for comparing the signature of the plaintiff thereon. No objection to this was filed and, ultimately, on 21-1-1978 when the case was taken up the plaintiff prayed for time to file necessary objection against this application on 28-1-1978 the plaintiff filed a reply which came up for orders on 4-2-1978. Again plaintiff's counsel wanted time, the Court fixed 18-2-1978 for disposal of the application. On that date also the case was adjourned. On 15-7-78 application 35-C was heard and the same was rejected. On the next date i. e. 19-4-1978 the defendant could not come and sought adjournment of the case and the same was allowed on payment of Rs. 75/as Costs. On the next date i. e. 3-5-78 the defendant's counsel made an application for adjournment on the ground that defendant have not come up for some reasons and telegram had been received from the defendant that she was ill but this application was rejected on the ground that the defendant was adopting opting dilatory tactics. The court proceeded to decide the suit on merit and decreed the same. It is against this decree that the defendant has come up in First Appeal. Learned counsel for the appellant has urged that in the circumstances of the present case the court had no jurisdiction to proceed under O. 17, R. 3, C. P. C. and the only made available to the court was to proceed under R. 2 of O. 17 by either passing an ex parte decree or to adjourn the suit. It is also submitted that the court has wrongly observed that the defendant had been adopting dilatory tactics and from a perusal of the record it would be apparent that she had not done any such thing. It was she who was being harassed by the plaintiff as she had to come from Bhopal to contest the case. She could not produce her evidence on the date fixed as she was ill on that date and this was a good reason to adjourn the hearing. Both the counsel have relied upon the Full Bench decision of this court in M. S. Khalsa v. Chiranji Lal (AIR 1976 Allahabad 290 ). Majority, view in this five Judges' decision was delivered by Hon. K. B. Asthana, Chief Justice, Hon. Satish Chandra, 3. (as he then was) and Hon. H. N. Seth J. while the minority view was of Hon. R. L. Gulati and Hon. C. S. P. Singh JJ. The relevant portion of that decision which is applicable to the facts of the present case is as under:- "so long as Rules 2 and 3 stand as they are, defectively though, I venture to suggest that - (1) Rule 3 cannot be resorted to where the parties or any of them is absent even though on the previous date the hearing of the suit was adjourned, for granting to both or to any one of them time to produce evidence or witnesses or perform any other act necessary to the further progress of the suit. Such a case would squarely be covered by Rule 2, the parties or any one of them having failed to appear: (2) Rule 3 can only be resorted to when the party, to whom time was given to produce evidence or to cause attendance of the witnesses or to perform any other act necessary for further progress of the suit is actually present on the adjourned date of hearing but fails to do any of the act for which the time was granted. For this purpose the fictional presence envisaged by the explanation to Rule 2 is not to be taken into consideration. It is only the factual presence which is to be taken into account. " From this it would be apparent that when the defendant is absent no proceedings under Rule 3 of O. 17 can be taken. When any of the parties fails to appear on an adjourned hearing of the suit that Court can proceed either under O. 9 of the Code or to adjourn the suit but where substantial portion of the evidence of a party has already been recorded and such party fails to appear on the adjourned date then only the Court can proceed to decide the suit on merit even under Rule 2. In the circumstances of the case, admittedly, neither any evidence had been recorded so far, either on behalf of the plaintiff or on behalf of the defendant, nor the defendant was physically present in Court on the date in question. In such circumstances, application of R. 3 of O. 17 was clearly excluded and the only course open to the Court was to proceed under R. 2 of O. 17. It is obvious that the Court acted illegally in proceeding to decide the suit on merit after rejecting the defendant's application for adjournment on 3-5-1978.
(3.) THE question thus arises as to whether in an appeal against such an ex parte decree can the Court enquire into the grounds of defendant's absence and further whether the Court rightly rejected the application. THE learned counsel appearing for the respondent, relied upon the case reported in 1979 All LJ 1237 Rajjan Lal v. Rukmani Devi where a learned single Judge of this Court held that :- "the Court could not look into those circumstances and the appellant can only be heard on merits of the case. " It appears, however, that this decision was given by the learned single Judge as his attention was not drawn to an earlier Full (Division?) Bench decision of this Court in Patit Parmeshwar Mahadeo Ji v. Nagar Mahapalika, Kanpur (1979 All LJ 840 ). While this decision of the Full Bench is dated 1-3-1979, the decision rendered by the learned single Judge is dated 21-3-1979. It was thus quite possible that such a mistake may occur and the Full Bench decision of this Court may not have been noticed at all. The Full Bench clearly lays down that it was open for the Court hearing an appeal against an ex parte decree to go into the grounds of nor-appearance of the defaulting party unless it be debarred from doing so either under the doctrine of res judicata or under other positive rule of Law. In this case this Court can, therefore, certainly go into the reasons for, defendant's non-appearance and also to look into if, the order rejecting the application was justified. The Court can also consider whether the appellant was prevented by any sufficient cause in failing to appear before the Court on the date fixed.;