Mookherjee, J.@mdashThe learned Additional District Judge, 3rd. Court Howrah by the order complained of in this appeal, has dismissed as not maintainable the appellant wife''s application under Order 9 Rule 13 of the CPC for setting aside the exparte order and decree dated 31st August, 1979 in Matrimonial Case No. 18 of 1978 brought by the respondent husband for relief u/s 9 of the Hindu Marriage Act, 1956. The learned Additional District Judge has, inter alia, held that his predecessor-in-office had decreed the said matrimonial suit according to the provisions of Rule 3 of Order 17 of the Code and therefore, the application under Order 9 Rule 13 of the Code for setting aside the decree did not lie. The petitioner''s proper remedy was by way of appeal against the exparte decree. In order to decide whether the said application under Order 9 Rule 13 of the CPC was maintainable, it would be necessary to set out the facts and circumstances relating to the passing of the said ex-parte decree in Matrimonial Suit No. 18 of 1978. On or about 9th March, 1978 the respondent husband had filed the said application u/s 9 of the Hindu Marriage Act for restitution of conjugal rights which was registered as Matrimonial Suit No. 18 of 1979 of the 3rd Court of the learned Additional District Judge, Howrah. The present appellant, who was respondent in the suit, had filed a written statement contesting her husband''s claim. It appears that on 8th January, 1979 the court below had previously decreed the suit exparte because the present appellant had failed to appear. Thereafter, on her application made under Order 9 Rule 13 of the Code the court below set aside the said, exparte decree and restored the suit. The suit had been fixed for peremptory hearing on 16th August, 1979. On the said date the petitioner''s husband was examined as a witness and he was also cross-examined on behalf of the respondent wife. On behalf of the petitioner husband it was endorsed on the hazira that he proposed to examine no other witness. Accordingly, evidence on his side was closed. At that stage the respondent in the court below (the appellant before us) prayed for adjournment of the case to enable her to move the Learned District Judge, Howrah an application u/s 24 of the CPC for transfer of the suit. The learned Additional District Judge, Howrah had adjourned the case to 27th. August 1979.
2. The present appellant had filed an application u/s 24 of the CPC before the learned District Judge, Howrah which was registered as Miscellaneous Case No. 110 of 1979. On 27th August, 1979 the present appellant had again prayed before the learned Additional District Judge, 3rd. Court, Howrah for stay of further proceedings in the said matrimonial suit till the disposal of the aforesaid Miscellaneous Case No. 110 of 1979. The learned Additional District Judge had granted time till 31st August, 1979 for bringing the stay order in default further hearing of the suit would take place. The learned District Judge, Howrah did not dispose of the said application u/s 24 of the CPC and declined to grant interim stay of the hearing of the said Matrimonial Suit. On 31st August, 1979 she had applied before the Learned Additional District Judge, 3rd Court, Howrah along with an advocate''s letter for further adjournment of the matrimonial suit in order to enable her to move the High Court against the order of the learned District Judge. The learned Additional District Judge had refused her said prayer for adjournment. She had made a second application on the same date for stay of the peremptory hearing in order to enable her to bring stay order from the High Court. The learned Additional District Judge rejected the said petition and directed the parties to get ready at once.
3. Thereafter, the court below had taken up the suit for further hearing and recorded that the plaintiff was ready. The respondent neither filed any Hazira nor was present. The learned Additional District Judge heard the arguments of the learned advocate for the plaintiff. He had originally recorded that he was proceeding under Order 9 of the Code but had thereafter penned through the said sentence. The court below in its judgment found that the parties had married according to Hindu rites on 10th August, 1976. The respondent had given birth to a female child on 25th July, 1977. The petitioner husband had been admitted as an indoor patient of Lumbini Mental Hospital on 27th July, 1977 on account of mental derangement and was discharged from the said hospital on 7th September, 1977. After his discharge the husband went to bring his wife and his child but the wife avoided him. The petitioner husband claimed that he was completely cured of his mental disease and he was working at M/s. Guest Keen Williams Ltd., Andul. The learned Additional District Judge relied upon the evidence of the petitioner husband and allowed the petition for restitution and ordered that the said suit u/s 9 of the Hindu Marriage Act be decreed exparte with costs against the respondent-wife.
4. On 17th September, 1979 the present appellant filed an application in the court below under Order 9 Rule 13 of the CPC for setting aside the said exparte decree passed in the Matrimonial Suit No. 18 of 1979. The same was registered as Miscellaneous Case No. 28 of 1979. The present respondent filed a petition of objection in the said Miscellaneous case, inter alia, contending that the said case was not maintainable in law and that the applicant had not also made sufficient cause for setting aside the exparte decree. As already stated, the Learned Additional District Judge has rejected the appellant''s application under Order 9 Rule 13 of the Code and had dismissed the miscellaneous case on the ground that the same was not maintainable.
5. In our view, the learned Additional District Judge has clearly committed an error by dismissing the application under Order 9 Rule 13 of the Code as not maintainable on the ground that his predecessor had passed the exparte decree in question under Order 17 Rule 3 of the Code. The learned Additional District Judge had clearly overlooked the amended provisions of Rules 2 and 3 of Order 17 of the Code. On 16th August, 1979 the plaintiff-petitioner husband had closed his evidence and the Court below had adjourned the suit to 27th August, 1979 for further hearing. On 27th August, 1979 on respondent wife''s petition he had fixed 31st August 1979 for bringing stay order in default for hearing. The learned District Judge did not grant any stay in connection with the application u/s 24 of the Code filed by her. On 31st August, 1979 she had again prayed for adjournment. The learned Additional District Judge had refused the said prayer for further adjournment and had asked the parties to get ready. After the second application for adjournment had been refused and the court below had directed the parties to get ready at once the respondent wife neither filed Hazira nor was present. She was absent on repeated calls when the suit was taken up for further hearing. Mere presence of the respondent wife''s lawyer for the purpose of obtaining adjournment of the hearing in the facts of the present case did not amount to her "appearance" in the matrimonial suit itself. There was no evidence that her lawyer was duly instructed and was able to answer all material questions relating to the suit. We have already pointed out that she neither filed Hazira nor she and her lawyer had appeared when the suit was taken up for exparte hearing. A Full Bench of this Court in Satish Chandra Mukherjee Vs. Ahara Prasad Mukherjee ILR 34 Cal. 403 corresponding to 5 C.L.J. 247 = 11 C.W.N. 329 with reference to section 556 of the Code of Civil Procedure, 1882, held that an application by a counsel or pleader who is instructed only to apply for adjournment, and which is refused, is not an appearance within the meaning of the Code of Civil Procedure. The Full Bench had approved the view taken by the referring Judges. Rampini and Ashutosh Mookherjee, JJ. Asutosh Mookherjee and Holmwood, JJ, in the case of Mariannissa v. Ramkalpa Gorain ILR 1934 Cal. 235-5 C.L.J. 260, took the same view in a case where the court had refused the plaintiffs application and had thereafter her pleader had intimated that he had no further instruction to appear and accordingly the suit was dismissed. D.N. Sinha, C.J. and B.C. Mitra, J. in the case of
6. Before the Rules 2 and 3 of Order 17 of the Code were amended by the CPC (Amendment) Act, 1976, there were some difference of opinion among the different High Courts as to the meaning of the expression "appearance" and also regarding the action which could be taken by the court when the parties were present as well as when they were absent. (vide Objects and Reasons of Civil Procedure Amendment Bill 1976). Rule 3 of Order 17 now provides how the court may proceed with a case notwithstanding either party fails to produce his evidence or to cause attendance of his witnesses or to perform any act necessary to the further progress of the suit for which time has been allowed. When notwithstanding such default both parties are present, the Court under clause (a) of Rule 3 of Order 17 of the Code may proceed to decide the suit forthwith. But in case a party fails to produce evidence or to cause attendance of witnesses or to perform any other act necessary and parties or any of them are absent, then according to Order 17 Rule 3 (b) the court is to proceed under Rule 2 of Order 17 of the Code. Thus, in case of default to produce evidence under Rule 3 is coupled with failure to appear the Court cannot proceed to decide the suit under Rule 3(a) of Order 17 of the Code. When a party fails to produce evidence etc. and the parties or any of them also fails to appear on the adjourned date, then the court is now required to follow the procedure prescribed by Rule 2 of Order 17 of the Code. The court under Rule 2 Order 17 of the Code may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 of the Code or ''make such other order as it thinks fit''. Before the CPC (Amendment) Act, 1976 had amended Rules 2 and 3 again there was difference of opinion among the courts as to whether in case a party failed to appear on the adjourned date of hearing, the court could dispose of the suit on merits. The view of our High Court as also of several other High Courts was that the expression "or make such other order as it thinks fit" in Order 17 Rule 2 of the Code gave the court widest possible discretion and therefore, where there was material on record, the court ought to proceed under Rule 3 of Order 17 (see Mariannissa v. Ramkalpa Gorain (supra), Kader Khan v. Juddeswar Prasad Singh ILR 35 Cal. 1023, Jnanada Sundari vs. Promada Sundari ILR 60 Cal. 1331=A.I.R. 1934 Cal. 16,
7. We have already pointed out that under the amended Rule 3 of Order 17 of the Code only when both the parties are present notwithstanding default of a party to produce evidence etc. the court may decide the suit forthwith, i.e., by not granting any further adjournment. But when the parties or any of them are absent, the court can no longer proceed under Rule 3 (a) and it may proceed only under Rule 3 (b) read with Rule 2. The amended Rule 2 of Order 17 has inserted an Explanation which was previously added by an Allahabad High Court amendment. The said Explanation indicates when the court may decide on merit a suit as a contested one notwithstanding absence of one of the parties on an adjourned date of hearing. According to the said Explanation, where evidence or substantial part of the evidence of any party, has been recorded and such party fails to appear on the adjourned date, the court in its discretion may proceed with the case as if such party was present. Thus under the said Explanation to amended Rule 2 the Court may proceed to decide on merits only when a party who has already adduced evidence or substantial portion thereof thereafter fails to appear on an adjourned date. But in case evidence on his behalf has not yet been recorded and the party fails to appear on an adjourned date, then the Explanation to Order 17 Rule 2 of the Code would be inapplicable and the court cannot in its discretion proceed with the suit as a contested one. When a party fails to appear on the date fixed, the Court''s discretion to make ''such other order as it thinks fit'' ought to be now read in light of the said Explanation under Rule 2 and the provisions of Order 17 Rule 3 (a) of the Code. Therefore when Rule 2 and 3 of Order 17 are harmoniously read, it appears that the court may dispose of a suit as a contested one when notwithstanding default to adduce evidence, both parties are present (vide Rule 3 (a) or when evidence or substantial portion thereof on behalf of a party has been already recorded but such party is absent on an adjourned date of hearing (vide Explanation to Rule 2 of Order 17 of the Code of Civil Procedure).
8. When a party who had not yet adduced any evidence is absent on an adjourned date of hearing, the court may proceed to dispose of the suit in any of the modes prescribed by Order 9 of the Code. It is settled law that Order 9 of the Code deals with appearance on the first date of hearing and the consequences of non-appearance. But the court under Rule 2 read with Rule 3 (b) of Order 17 of the Code may invoke the provisions of Order 9 when a party is absent on the adjourned hearing or the date fixed for recording his evidence. The learned Advocate for the appellant has placed before us recent Division Bench decision of the Kerala High Court in the case of
9. In the present case the plaintiff husband only had adduced evidence and no evidence on behalf of the respondent had been recorded. Therefore, when she had failed to appear on 31st August, 1979, -the court below could not have disposed of the suit in terms of the aforesaid Explanation to Rule 2 of the Order 17 of the Code. The court below had clearly proceeded in terms of Order 17 Rule 3(b) of the Code read with Rule 2 of the said Order. Therefore, when the plaintiff husband was present the defendant wife did not appear the court below had rightly disposed of the suit under Order 17 Rule 3 read with Order 9 Rule 6(1) (a) of the Code. In the above view, the appellant''s application under Order 9 Rule 13 of the Code for setting aside the said exparte decree was maintainable and the learned Additional District Judge had erred in rejecting the same only on the ground that the same did not lie.
10. The Miscellaneous Case under Order 9 Rule 13 of the Code has been pending for nearly five years. Therefore, we ourselves have considered the sufficiency of the cause for the appellant wife''s absence on 31st August, 1979. We hold that she had failed to make any case on merits for setting aside the exparte decree passed in the Matrimonial Suit No. 18 of 1979. Her allegation was that before the petitioner husband had adduced evidence the learned Additional District Judge had allegedly remarked that if the decree was passed the alimony would be stopped. Whatsoever, we fail to find any basis for the respondent''s apprehension that the court was biased and that justice might not be done. Equally baseless was her further allegation that after taking the certified copy, it had allegedly transpired that some questions put and answers given by the plaintiff''s witness had not been recorded. The petitioner did not give any particular of such incorrect recording or omission. Further, even assuming that some of these questions and answers were not correctly recorded, the petitioner could have filed a petition before the trial court for pointing out the same. When the petitioner did not even allege that the said incorrect recording was deliberate or intentional, her said allegation did not even prima facie establish that the court below was biased.
11. In spite of adjournments granted to her, the petitioner wife had failed to obtain a stay order from the learned District Judge. While previously granting time the learned Additional District Judge had informed her that in default of obtaining such stay, the hearing would take place. In these facts the court below did not act arbitrarily by refusing further adjournment on 31st August. The appellant wife had no sufficient cause for being absent on the said date. Obviously, she had deliberately absented herself to delay the hearing of the case. We hold that her application under Order 9 Rule 13 of the Code had no merit and it ought to be rejected.
12. For the foregoing reasons, we dismiss this appeal without any order as to costs. It is not within the scope of the present appeal to decide whether the petitioner wife ought to be granted permanent alimony or any other relief. Our order disposing of the appeal would be without prejudice to the rights and contentions of both parties regarding the appellant''s alleged claim for permanent alimony etc. No decree need be drawn up.
Mukul Gopal Mukherjee, J.
I agree.
