C.R. Corera and Bros. vs The Chief Secretary, Govt. of Pondicherry

Somasundaram, J.—The appellant-firm had taken on lease several units of machinery, instruments, godown etc. from the Port Department

attached to the Government of pondicherry. The firm had to pay Rs. 27,495.74 as arrears in respect of the above leases. The Chief Secretary to

the Government of Pondicherry filed a suit against the defendant in the year 1970, viz., O. S. No. 18 of 1970, for recovering this amount with

interest. The petitioner denied his liability to pay the amount and pleaded set-off stating that by way of demurrage he was entitled to about Rs.

80,000.

The suit was posted for trial on 20-10-1970. The advocate who appeared for the petitioner filed an application for adjournment, producing

medical certificate. The matter was adjourned to 2-12-1970. On that date, the representation was that the petitioner (partner representing the firm)

had a heart attack. The suit was then adjourned to 21-12-1970. On further request it was adjourned to 8-1-1971 for trial. On that date, the

petitioner''s advocate reported no instructions and the petitioner being absent, was set ex parte. On 11-1-1971, P. W. 1 was examined on the side

of the plaintiff for proving the claim, and the suit was decreed.

The petitioner then filed I. A, No. 35 of 1971 for setting aside this ex parte decree. This was done. The suit was restored to file on 5-4-1971. It

was posted to 14-6-1971 for trial. Several adjournments were granted. Eventually, the suit stood posted to 19-6-1972 for trial. The petitioner

then represented to the court that he had approached the Government for settlement and on that ground he wanted ten days time. This was

granted. The suit was posted to 3-7-1972 at the instance of the petitioner for getting on with the trial. On 3-7-1972, he again filed a petition for

adjournment stating that he will get on with the trial on the next hearing. This petition was allowed on payment of costs of Rs. 20/-. On 7-8-1972

costs was paid, but the petitioner''s advocate repotted unreadiness. The suit stood posted to this clay for producing evidence. Since the petitioner

defaulted, the learned Second Additional District Judge, Pondichery, took up the matter for consideration and reserved orders till 21-8-1972. On

that date, on a consideration of the evidence and materials which were available, he observed that the plaintiff had filed six demand notices calling

upon the petitioner to pay the amount and that the latter had not even chosen to send a reply denying liability. Holding that there was no merit in the

counter-claim and stating that the petitioner had not produced any evidence for substantiating it, the learned District Judge decreed, under Order

XVII, Rule 3, Civil P. C. the claim as made by the plaintiff.

Subsequently, the petitioner filed I. A. No. 926 of 1973 under Order IX, Rule 13, Civil P. C. requesting the Court to set aside the ex parte

decree passed against him on 21-8-1972 The learned Judge heard the counsel and rejected this application, stating that the decree passed on 21-

8-1972 was one under Order XVII, Rule 3, Civil P. C.

The correctness of this order is now canvassed by the petitioner in this revision.

Mr. Srivatsamani learned counsel appearing for the petitioner, contends that the decree passed on 21-8-1972 is not one under Order XVII,

Rule 3, Civil P. C. but only an ex parte decree attracting Order IX, Rule 13, Civil P. C. This matter has had chequered career from the year 1970.

On the move of the petitioner, the court had adjourned the suit on several occasions for adducing evidence. Once before, the suit was decreed ex

parte on 11-1-1971. P.W. I was examined on that date for proving the claim. Thereupon the petitioner filed I. A. No. 35 of 1971 for setting aside

the ex parte decree. This was allowed. The suit was posted to 19-6-1972. Several adjournments were granted at the request of the petitioner. On

3-7-1972, the petitioner filed an application for adjournment requesting for time for getting on with the trial. This was allowed on payment of costs,

and the suit was posted to 7-8-1972. Costs were paid but the petitioner''s advocate represented unreadiness. Therefore, in these circumstances,

the court has gone into the merits of the matter with reference to the materials and evidence already on record and granted a decree. This can only

be under Order XVII, Rule 3, Civil P. C, as stated by the learned District Judge.

On 7-8-1972 when the matter was adjourned for final disposal, the petitioner''s advocate Mr. Sundaramoorthy was present. The learned

District Judge has observed that even for the demand notices issued by the respondent claiming the amount, the petitioner had not chosen to send

any reply. He has further held that he had not placed any material or document before the court till that date for substantiating his claim for

demurrage. This was case of disposal on merits within the ambit of Rule 3 of Order XVII, Civil P. C. Time had been granted to the petitioner at his

request for producing evidence. The petitioner defaulted. Rightly, the court had chosen to proceed to decide the suit forthright on merits. Rule 3,

applies to a case where the suit is adjourned on the application of a party and he is in default at the adjourned hearing. This is what has happened

in this case. For Rule 3 to apply, the party must be present at the adjourned hearing. His advocate has been present, in this case. The decision

under Order XVII, Rule 3 amounts to a ''decree'' and the remedy of the party aggrieved can be only by way of appeal.

Learned Counsel appearing for the petitioner relies upon the decision in T. Muthaya Pillayan Vs. Commr., Madras Hindu Religious and Charitable

Endowments, Madras, . That was a case where the suit was adjourned automatically by the Court and not at the request of the party. The decision

in Natesa Thevar Vs. Vairavan Servaigaran, is relied upon by the petitioner. This was not approved in Gopal Gounder Vs. Ambujammal, in view

of the Bench decision in Dakshinamurthi v. Ponnuswami AIR 1949 Mad 78. In such cases, the party should be deemed to have appeared on the

date when the suit was disposed of and if he did appear within the meaning of the ratio of AIR 1949 Mad 78 then the disposal must be deemed to

be one under Order XVII, Rule 3, CPC against which only an appeal would lie.

In this case, the suit was adjourned at the request of the petitioner for adducing evidence. On the adjournment date, he had not adduced any

evidence. On that date, his advocate was actually present. The learned Additional District Judge has gone into the merits of the case and he has

rightly decreed the claim. In view of the fact that the petitioner had not even chosen to deny its liability when notices of demand were issued by the

Government of Pondicherry claiming the amount involved in the suit, the decision is one under Order XVII, Rule 3, CPC and the learned District

Judge has rightly rejected the application for setting aside the decree dated 21-8-1972.

There is no merit in this appeal. The same is dismissed with costs.