R.S. Pathak, J. - (1.) THIS is a Defendant's revision application Under Section 115 of the Code of Civil Procedure against an order of the court below refusing to set aside an ex parte decree.
(2.) A suit was filed by the Plaintiff -opposite party for possession and damages. After the written statement had been filed by the Defendant, issues were struck and proceedings for final hearing were taken by the trial court. The Plaintiff led evidence and after his evidence was closed, the Defendant filed an application for time to file certain papers. On 17 -5 -1967, the trial court allowed the application and granted time for the purpose. Subsequently however, another application was made by the Defendant for further time to file the papers and on 7 -7 -1967, the trial court recorded an order declaring that the Plaintiff's evidence had been closed and that time was granted to the Defendant upto 27 -7 -1967, for filing the papers. However no papers were filed by the Defendant by that date. The trial court then fixed 18 -8 -1967, for final hearing. On that date, an application was made by counsel for the Defendant praying for adjournment of the case. The trial court rejected the application and recorded an order declaring that the Defendant's evidence had closed. On the same date the trial court decreed the suit ex parte on the merits. Thereafter on 12 -9 -1967, the Defendant filed application Under Order IX, Rule 13, Code of Civil Procedure praying for setting aside the ex parte decree. The trial court rejected the application as not maintainable. An appeal by the Defendant was dismissed by the lower appellate court on 13 -11 -1968. The lower appellate court held that although there was sufficient cause for the absence of the Defendant on 18 -8 -1967, the application for setting aside the ex parte decree was not maintainable as the suit had been disposed of Under Order XVII, Rule 2, Code of Civil Procedure. It is pertinent to point out that the plea of the Plaintiff that the suit had been disposed of Under Order XVII, Rule 3, was over -ruled. The Defendant then preferred the instant revision application. The case was listed before our brother J.S. Trivedi, who having regard to the apparent conflict of decisions on the point in this Court has referred this case to a larger Bench. That is how this case now comes before us. A number of decisions have been cited before us, but it seems to us that having regard to the facts of the case the revision application can be disposed of shortly.
(3.) IT is apparent that, so far as Rule 3 is concerned, although the Defendant was given time to file the papers and no papers were filed by him by the date fixed for the purpose, the trial court did not proceed to decide the suit forthwith. The word "forthwith" contained in Rule 3 has been considered in Mst. Jagge v. Kanhaiya Lal : AIR 1957 All 344. A Division Bench of this Court observed: Moreover, even if time had been granted to the Defendant to do any such act, if the court wanted to take action under this provision of law (Under Order XVII, Rule 3), it should have proceeded to decide the suit forthwith. The court, in the present case, did not proceed to decide the suit forthwith. What had happened in that case was that the Court fixed another date in the suit and on that date proceeded to dispose it off. There is also the view taken by Madholkar, J. in Dayalji Wasanji v. Kedarnath Onkarmal and Co., AIR 1953 Nag 222. In that case the Court fixed 29 -6 -1950 for the Defendants to file their written statement on that date when the Defendants did not do so, it fixed another date in the case. The learned Judge pointed out: There is no doubt that time was given to the Defendants to perform an act which was necessary for the further progress of the suit, i.e. for filing the written statement and that they failed to perform the act, therefore, on 29 -6 -1950 it would have been open to the learned Judge to proceed against them Under Order XVII, Rule 3. As I understand this rule, a court proceeding under this provision must decide the suit forthwith i.e. on the same date and it cannot adjourn the hearing of the suit to some other date and then purport to decide the suit Under Order XVII, Rule 3. I say so because of the word "forthwith" occurring at the end of Rule 3 of Order XVII and in my opinion that word has to be given its full meaning. The provisions of Rule 3 of Order XVII are penal in their nature and must therefore be construed strictly. Had the trial court in the present case proceeded to dispose of the suit on 27 -7 -1967, it might have been construed as an order Under Order XVII, Rule 3. It did not do so. It fixed 18 -8 -1967 for final hearing. It did not, in the sense in which this Court and the Nagpur High Court have held, proceed to decide the case forthwith. We are of opinion that the contention of learned Counsel for the Plaintiff opposite -party that Order XVII, Rule 3 applies must be rejected.;