- (1.) This revision petition is filed against the order of the Subordinate Judge, Bhimavaram in Civil Misc. Appeal No.7 of 1990. The defendant is the petitioner in this revision petition. The respondent filed a suit O.S. No.375 of 1985 in the Court of the First Additional District Munsif, Bhimavaram on the basis of a promissory note. The suit was posted on 26-4-1989 for the cross-examination of P. W. 1. The defendant, who was residing at Hyderabad, engaged a Counsel. The Counsel filed an application seeking adjournment of the matter. The learned First Additional District Munsif refused to grant adjournment and declared the defendant ex parte. On the very same day, an ex parte decree was passed. The, petitioner filed an application I. A. No.551 of 1989 to set aside the exparte decree, which was dismissed by the First Additional District Munsif. Against that order, the defendant filed Civil Miscellaneous Appeal No.7 of 1990 before the Subordinate judge, Bhimavaram, which was also dismissed. Hence the revision petition by the defendant in this Court.
(2.) The learned Counsel appearing for the petitioner submitted that on 26-4-1989 the defendant could not be present in Court as she was at Hyderabad and she was represented by the Counsel. Since the Counsel was engaged in another Court, he sought adjournment of the matter; but the adjournment was refused. Therefore, the only course open to the trial Court is to close the case and adjourn the same to the next day. He should not have decreed the suit ex parte. In support of his contention, the learned Counsel relied on a judgment of this Court reported in Mannam Subba Rao vs. K. Polaiah Naidu'. The learned Counsel also submitted that there was sufficient cause for the non-appearance of the Counsel as he was engaged in another Court. Further, according to the learned Counsel, on the very next day, viz., on 27-4-1989 an application is set aside the ex parte decree was filed and therefore, there was no negligence on the part of the Counsel. The learned Counsel further submitted that the appellate Court, while dismissing the application filed by him, stated that on 26th April 1979 the defendant was not ready and the petition for adjournment was filed on behalf of the defendant and it was dismissed and as the defendant was not present in Court she was set ex parte and the suit was decreed with costs. Therefore, it follows that the contention of the defendant that the ex parte decree was passed against the principles of natural justice is correct. Admittedly the petition for adjournment was filed by the advocate for the petitioner who has got no right to do so. In any event, the Advocate was not having the record with him. It is, therefore, clear that the Counsel for the petitioner was not prepared to proceed with the cross-examination of P.W.I on 26-4-1989. The learned Counsel submitted that in the above circumstances the only course open to the trial Court is to adjourn the matter after closing the case and on the adjourned date if the petitioner-defendant is not present, then only an ex parte decree can be passed. The learned Counsel also submitted that the observation of the appellate Court that the application to set aside the ex parte decree was filed with an affidavit of the Counsel only and no affidavit on behalf of the defendant was filed and therefore, the petition to set aside the ex parte decree is not maintainable is not correct and in view of Order 17 Rule 3 Code of Civil Procedure, an affidavit could be filed only by a party. In this case the defendant, who was away at Hyderabad, was not aware of the fact that the Counsel engaged by her was engaged in another Court and could notappear in the Court and therefore, she could not have sworn to an affidavit and file the same in support of the petition to set aside the ex parte decree. The procedure to file an application to set aside an ex parte decree is to file a petition signed by the advocate and an affidavit filed by the party. In this case, since the defendant was not aware of what happened on 26-4-1989 she could not file an affidavit and it was only the Advocate who was present on that day, that could file an application and it is the proper application and the leamed Subordinate Judge is not correct in holding that there was no proper application to set aside the ex parte decree.
(3.) The learned Counsel appearing for the respondent vehemently opposed the arguments of the learned Counsel for the petitioner. According to him, it is not a case where the defendant was not effectively represented in the Court. He contends that the clerk of the Counsel appearing on behalf of the defendant filed the application seeking adjournment of the matter for one month on the ground that the record was not available with him. Another junior Counsel also appeared on behalf of the Senior Counsel and sought for an adjournment. After rejecting the prayer for adjournment, the trial Court said that the said Advocate appeared in the absence of the senior Counsel but sought adjournment on behalf of the senior Counsel. Therefore, the defendant was effectively represented and consequently the order passed is a judgment on merits under Order 17 Rule 3 CPC and it is not a case falling under Order 17 Rule 2 CPC. Therefore, Order 9 Rule 13 CPC is not applicable to the facts of the present case. In support of his contention, the learned Counsel relief upon two judgments -K. Ravindra Devadiga vs. Sebastian Britto and Kurilal Rungta vs. Smt. Banarsi Devi and others. In Kurilal Rungta vs. Smt. Banarsi Devi and others, it was held: "The case would, however, not be covered by R.3 if the defendant, to whom time has been granted to produce his evidence and the case is adjourned and listed for final hearing on an application moved by him in that behalf but on the adjourned date of hearing he fails to put in appearance in the case. In such circumstances the Court would proceed under R.2 as is provided under sub-cl.(b) of R.3 of O.17 of the Code. But where the defendant is either personally present or is deemed to be present as envisaged by R.2 and the default has been committed by him in doing an act for which time has been granted, the case would be covered by R.3 of O.17 and the Court can proceed to decide the suit forthwith." In K. Ravindra Devadiga vs. Sebastian Britto, it was held:- "The fact that the Counsel for the defendant, while the plaintiff landlord was giving evidence, did not participate by cross-examining the plaintiff, cannot be an excuse to plead that the decree passed in suit was ex parte under O.17, R.2 and not under O.17, R.3. If the Counsel had no instructions, he had only choice to retire from the case but he cannot plead want of instructions and still claim that on that account the defendant should be treated as ex parte. Defendant's application under O.9, R.13 for getting aside decree ex parte is therefore, not maintainable." In view of the above judgments, the learned Counsel submitted that since the defendant was effectively represented by a Counsel seeking an adjournment on behalf of his senior Counsel, it cannot be said that the defendant is not prevented and therefore, disposal of the case should be treated as disposal on merits. The only remedy available to the defendant is to file an appeal against the said judgment and not an application to set aside the ex parte decree.;