- (1.) A. N. Verma, J. The opposite party No. 3 filed a Suit, (Regular Suit No. 352 of 1993), for specific performance of contract on the basis of the two agreements dated 8-10-1991 and 31-10-1999 said to have been executed by the petitioners. The trial Court fixed 28-10-1993 for framing of issues. On the said date Counsel for the opposite party No. 3 was present while Counsel for the petitioners was absent. The case was directed to proceed ex parte against the petitioners fixing 1-11-1993. The Counsel for the opposite party No. 3 was present on 1-11-1993, however, the Counsel for the petitioners again absented. On the said date the Suit was decreed ex parte. The order passed by the Civil Judge on the aforesaid date decreeing the Suit ex parte, is reproduced hereunder:
(2.) THE petitioners thereafter made an application under Order IX, Rule 13 C. P. C. , for setting aside ex parte decree on the ground that they had not been served with the summons, nor were they aware of the date fixed. It was also their case that a written statement had been filed by persons other than petitioners. The trial Court vide its judgment and order dated 23- 12-1996 rejected the petitioners' application for setting aside the ex parte decree. Being aggrieved, the petitioners filed a Misc. Appeal No. 4 of 1997. The appellate Court vide its judgment and order dated 21-2-2004 dismissed the Appeal and maintained the order passed by the trial Court. It is against the said judgment and orders passed by the Courts below that the petitioners have approached this Court through the instant writ petition. The submission of the learned Counsel for the petitioners is that in view of the fact the date on which the Court directed the Suit to proceed ex parte was the date fixed for framing of issues and it was obligatory upon the trial Court to have perused the pleadings of the parties and thereafter framed the issues, even if one of the parties was not present. As per his submission there was no occasion for the trial Court to proceed ex parte against the petitioners. In support of his case he placed reliance upon a decision rendered by the Court in Wipro Limited (M/s) Bakhtawar and Anr. v. Baba Enterprises (M/s), reported in 2000 (39) A. L. R. Page 75.
(3.) ORDER XIV of C. P. C. , pertains to framing of issues. According to the said provision issues arise when material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other shall form the subject of a distinct issue. Rule 3 ORDER 14 reads as follows: "3. Materials from which issues may be framed.- The Court may frame the issues from all or any of the following materials : (a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties; (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit; (c) the contents of documents produced by either party. ' In Wipro Limited (supra) in paras 13 and 14 observed as follows: " (13) It may, however, be noted that Order XIV does not provide for any provision for pronouncing of judgment or for passing such order as to fixing of date for ex parte hearing. Rule 4, Order XIV also omits to incorporate what is provided in Order X, Rule 4. It is only when Order X is resorted to the proposition may follow. In the absence of the party the Court has to resort to Rule 4 Order XIV, read with Rules 2 and 4 of Order X, as the case may be. It cannot assume jurisdiction to fix a date for ex parte hearing without resorting to Rule 4, Order XIV, read with Rules 2 and 4 of Order X. (14) If the date is fixed for framing the issues, it is not necessary that the parties should appear before the Court. The issues are to be framed if suggested by the parties on the basis of suggestion. But the Court is not bound to accept the suggestions. It has to frame issues from the materials specified in Order XIV, Rule 3. Even if the parties do not appear, it is open to the Court to frame issues according to its own wisdom even without the issues being suggested by the parties from the materials referred to in Rule 3, Order XIV. Non-appearance of the parties on the date fixed for framing issues cannot be a ground for fixing date for hearing ex parte or passing an order for ex parte hearing. ";