' This suit under 0. XXXIV, C.P.C. For recovery of Rs,1,94,938.23 was filed on 2nd May,1970. A preliminary decree for the recovery of the said sum with simple interest at 914 pendent lite and in future was passed on 19th February, 1978. An application under 0. IX, r.13, C.P.C. For setting aside the decree was filed on 19th March,1978 on behalf of the defendant No,1. It has been pending since then and finds decision under this order.
2. Facts in the background for the purpose of disposal of the application, briefly stated, are that the suit was initially filed against the defendants Nos.1 and 2 (Mian Abdul Majeed and Mian Manzoor Ahmed) on 2nd May,1970. Each of them filed written statement on 20th March,1972 and 2nd February, 1972, respectively. Issues were settled on 27th January,1975. The suit came up for final hearings. On 5th May,1976 and subsequent hearing Cotton Trading Corporation was impleaded as defendant No,3 by order dated 22nd July,1977. Amended plaint was filed on 15th April,1977. The third defendant did not defend the suit and it was placed ex parte vide order dated 9th October, 1977.
Thereafter, the case was set down for evidence on 18th December,1977 when it was adjourned for want of time. The next date of hearing for evidence 22nd January,1978 when it was adjourned to 19th February,1978 at the request of the Advocate for the defendant No,1 (Mian Abdul Majeed) on the ground that this dependent was ill. On the adjourned date of hearing viz. 19th February,1978, the Advocates for the plaintiffs and the defendants No,1 and 2 appeared while the defendant No,3 was already ex parte. The Advocate for the defendant No,1 made oral request for adjournment on the ground that he had received a telegram from the defendant No,1 that his father had expired. His request for adjournment was not acceded to. The Advocate for the defendant No,2 conceded to the passing of preliminary decree. The learned Judge hearing the case passed preliminary decree on the same day on considering the pleadings of the parties. The preliminary decree is sought to be set aside under the provisions of 0. IX, rule 13, C.P.C.
3. The first and foremost questions arising for determination is: Whether the preliminary decree is ex parte decree or/it is a decree on contest. Mr. Azhar All Siddiqui, the learned counsel for the defendant No,1 who has moved the applications under 0. IX, rule 13, C.P.C, has urged that the impugned preliminary decree was made ex parte of the defendant No,1, no matter that this defendant's Advocate had appeared in Court and requested for adjournment. According to him, the preliminary decree is deemed to have been passed under the provisions of 0. IX, rule 6 read with 0. XVII, rule 2 C.P.C. And he has placed reliance on the following cases:-
(i) PLD 1961 Kar.
145.
(ii) PLD 1963 Kar.
357.
(iii) PLD 1939 Mad.
974.
(iv) AIR 1952 All. 652 and
(v) AIR 1932 Lah.
477.
' On the other hand, Mr. Mansoorul Arfin, the learned Advocate for the plaintiff, has contended that the defendant No,1 did contest the suit and mere absence on the date of hearing for adducing evidence did not make him ex parte in the proceedings and the preliminary decree is deemed to have been passed under the provisions of O. XVII, rule 3, C.P.C. And its setting aside could not be sought under the provisions of O. IX, rule 13, C.P.C. He has cited AIR 1924 Mad. 43 and AIR 1931 All.
294 as the supporting authorities.
4. The crucial point for consideration is: Whether the impugned preliminary decree was passed ex parte. It would appear from the chronological history of the case that the defendant No,1, who seeks setting aside of the decree, did appear in Court and filed his written statement, whereupon issues were struck and the case was set down for adducing evidence. Thus there did not arise the question of ex parte proceedings envisaged under O. IX of the Code of Civil Procedure. Moreover, the defendants Nos. 1 and 2 were represented by their respective counsel on that date of hearing.
The decision was given on merits of the case. It could not, therefore, be assumed that the proceedings in the suit were ex parte. Reference.In this regard may be made to a case Radha Mohan Datt v. Abbas All and others AIR 1931 A11.294 (FB) in which it was held that where the pleader of a party withdraws and the Court proceeds to decide the suit on merits, the decree so passed is not an ex parte decree.
5. As indicated above, the suit had been contested and time was obtained for adducing evidence but no evidence was produced and the Court proceeded to decide the case on merits. The learned Advocate for the defendant No,1 has urged that the Court is deemed to have proceeded under the provisions of O. XVII, rule 2 read with O. IX of the Code of Civil Procedure, whereas the learned Advocate for the plaintiff has contended that the Court proceeded under the provisions of rule 3 of Order XVII of the Code of Civil Procedure. It would be worthwhile to reproduce both the rules hereinunder:-- Rule 2: "Procedure if parties fail to appear on day fixed. Where on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit."
Rule 3: "Court may proceed notwithstanding either party fails to produce evidence, etc. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has allowed, the Court may, notwithstanding such default proceed to decide the suit forthwith."
The history of the proceedings traced above reveals that the suit had come up in Court for recording evidence and time had been sought for adducing evidence by the defendant No,1 and yet evidence was not produced. Evidently, the Court proceeded under the provisions of rule 3 of Order XVII, C.P.C., reproduced above, and passed the preliminary decree. Even if it were assumed that the matter could be disposed of under the provisions B of rule 2 of Order XVII, C.P.C. The Court chose to decide the case on merits emerging from the pleadings of the parties and did not resort to the provisions of Order IX, C.P.C. This could be done under rule 2 of Order XVII C.P.C. By virtue of its last clause "or make such other order as it thinks fit". Another aspect of the case is that the Advocate for the defendant had appeared when the matter was taken up obviously, the proceedings were not ex parte of the defendant No,1. It follows that the preliminary decree passed in the suit was not an ex parte decree. It is, however, to be seen whether this view is not in conflict with the view adopted in the cases relied upon by the learned counsel for the defendant No,1. The first case relied upon is that of Abdul Shakur v. Miss Mumtaz and others P L 0 1961 Kar.150. In that case the concept of expressions "hearing" appearing in 0. IX, C.P.C. Was considered and it was observed that "adjournment" envisaged under O. XVII, C.P.C. Postulates hearing of the case on the next date of hearing. The question involved in this case was not directly considered in that case.
Moreover, the history of the present case bears out that the case was fixed on that relevant day for further progress and the matter could be proceeded with under the provisions of rule 3 of Order XVII, C.P.C, or even under last clause of rule 2 of Order XVII, C.P.C. The concept of ex parte order/decree is deducible from the provisions of Order IX, C.P.C, which provides for appearance of parties and consequence of non-appearance. The expression "ex parte" finds root C in rule 6 thereof, which lays down that the Court may proceed ex parte of the defendant if he fails to appear after service of summons. This provision is relatable to the first appearance after the service of the summons. But once a defendant appears in Court and disappears thereafter, the case can proceed in his absence but it would not be ex parte proceedings. The other case cited as Abdul Shakoor v. Abdul Rasool PLD 1963 Kar.356 also does not lend support to the plea advanced on behalf of the defendant No,1 that it would be ex parte decree. In that case, the scope and distinction between the rules 2 and 3 of Order XVII, C.P.C. Were amplified. It was observed therein that rule 2 applies to the hearings adjourned at the instance of the Court and rule 3 applies to the hearing adjourned at the instance of the party to which time has been allowed to do some act for further progress of the suit and which has not been done. It was further observed that where a party does not appear on an adjourned hearing and there is material on the record to enable the Court to base its decision, it may proceed to give decision under the provisions of rule 3 of Order XVII, C.P.C. This case lends support to the view that the D preliminary decree in this suit was passed order the provisions of rule 3 of Order XVII, C.P.C. In the light of these two authorities of this Court, it does not seem worthwhile to refer to the Indian authorities could in this matter.
6. For the foregoing reasons, it is evident that the impugned preliminary decree was not an ex parte decree but was based on the pleadings of the parties, although no evidence was adduced. That being the case, the proper course for the defendant No,1 was to have preferred an appeal. The application under Order IX, rule 13, C.P.C. Is accordingly dismissed as not maintainable. Since the application has been dismissed on the subtle question of law, the parties are left to bear their own costs.