In a suit 6-8-1989 was fixed for final hearing. On that date, the defendants moved an application for adjournment on the ground of illness. The prayer was allowed… The Court directed that the case would proceed under Order XVII, Rule 3, C.P.C… Whether in these circumstances, an application under Order IX, Rule 13, C.P.C lies. Discuss.

Question: In a suit 6-8-1989 was fixed for final hearing. On that date, the defendants moved an application for adjournment on the ground of illness. The prayer was allowed subject to payment of costs and 1-9-1989 was fixed for final hearing. On this date Counsel for both the parties were present.

Counsel for the defendants, after paying the costs, moved another application for adjournment. This application was rejected by the Court. Thereupon Counsel for the defendants stated that he had no further instructions and was, therefore, withdrawing from the case.

The Court directed that the case would proceed under Order XVII, Rule 3, C.P.C. Thereafter, the plaintiff produced his evidence and closed the case. On 2-9-1989 the suit was decided on merits. Whether in these circumstances, an application under Order IX, Rule 13, C.P.C lies. Discuss.

Find the answer to the mains question only on Legal Bites. [In a suit 6-8-1989 was fixed for final hearing. On that date, the defendants moved an application for adjournment on the ground of illness. The prayer was allowed… The Court directed that the case would proceed under Order XVII, Rule 3, C.P.C… Whether in these circumstances, an application under Order IX, Rule 13, C.P.C lies. Discuss.]

Answer

Order 17, Rule 3 enacts that where any party to a suit whom time has been granted fails to produce his evidence, or to cause attendance of his witnesses or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.

The ambit of this rule is that if a party is present in court, but fails to fulfil the requirements prescribed in the Rule for which time has been granted, the court would proceed to decide the suit forthwith. Emphasis is to be laid on the words “notwithstanding such default”. The default referred to is not one of non-appearance of the party but is one of non-compliance with the various steps taken for the progress of the suit for which time has been granted. If the case comes within the ambit of Rule 3, the provision of Order 9 has no application and the court is to decide the suit forthwith on merits.

In Gopal Singh v. Kailash Gir, AIR 1933 All 652 a Division Bench of this court pointed out that a distinction is to be drawn, between the case of a pleader who staves that he has no instructions for a limited purpose of making an application for adjournment, etc. The learned Judges observed that:

“the case of a pleader who says that he has no instructions does not come under the explanation to Rule 2 of Order 17. If we were to hold otherwise and accent the argument of the learned counsel for the appellant, we would be holding that it was impossible for a pleader who wishes to withdraw for representing a party to do so, and we do not consider that there is any authority under the explanation to this Rule or otherwise for such a proposition.”

It was held in that case that the counsel could not be treated as representing the defendants when he stated that he had no instructions. We respectfully concur with the above view and hold that when the counsel of a party makes a statement in court that he has no instructions to proceed with an application made by him, it must be held that he had ceased to represent the party because it would be inconsistent to hold that a pleader who has no instructions to proceed with the case still holds the authority to represent his client for the purpose of the case.

Moreover, it also appears to be well settled that a party appearing by a pleader and asking for adjournment must be deemed to have appeared in view of the Explanation added by this Code to Rule 2 of Order XVII of the Code, which provided that, no party shall be deemed to have failed to appear if he is either present or represented in Court by agent or pleader, though engaged only for the purpose of making an application.’ In M. S. Khalsa v. Chiranji Lal, AIR 1976 All 290 (FB) it has been held, as per majority view, that:–

“A case in which the defendant obtains an adjournment on the date of final hearing of the suit and fails to appear on the adjourned date would be covered by Order 17, Rule 2 of the Civil P. C. and an application under Order 9, Rule 13 will lie, even if the Court professes to act under Order 17, Rule 3. Rule 3 applies when a party is present, or is deemed to be presented has defaulted in doing the acts mentioned in Rule 3.”

Thus, on the facts and circumstances of the present case, the defendant would be deemed to be present on the said adjourned date of hearing as his counsel had put in appearance and had moved an application for adjournment. The case was, thus, covered by Order XVII, Rule 3 as the defendant had failed to produce evidence on the adjourned date of hearing for which he was granted time. The alleged leaving of Court by the defendant’s counsel on the rejection of the application for adjournment of the case without further taking any steps by moving an application for withdrawing his power from the case could not amount to his effective withdrawal from the case, and so the defendant could not be taken to be absent at the hearing.

It appears to be fairly well settled that leave of discharge from the case to a counsel shall be granted only when the counsel asks for it with notice to his client, and, as such, the discharge of the counsel from the case cannot be taken to occur merely from the fact that the counsel of his own volition had left the Courtroom when an adverse order was passed on his application for adjournment.

Thus, the defendant is entitled to move an application under the said provision. The ex parte decree passed against the defendant in the present case at hand can be set aside by filing an application under Order 9, Rule 13 if he satisfies the court with “sufficient reasons” for his failure to appear.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. CPC Mains Questions Series: Important Questions Part – I of X
2. CPC Mains Questions Series: Important Questions Part – II of X
3. CPC Mains Questions Series: Important Questions Part – III of X
4. CPC Mains Questions Series: Important Questions Part – IV of X
5. CPC Mains Questions Series: Important Questions Part – V of X
6. CPC Mains Questions Series: Important Questions Part – VI of X
7. CPC Mains Questions Series: Important Questions Part – VII of X
8. CPC Mains Questions Series: Important Questions Part – VIII of X
9. CPC Mains Questions Series: Important Questions Part – IX of X
10. CPC Mains Questions Series: Important Questions Part – X of X