Vandana Patel vs Smt. Phoolkali and Another

Tarun Agarwala, J.—Heard Sri M. N. Singh, the learned Counsel for the petitioner/defendant and Sri Gulab Chandra, the learned Counsel for the respondent/plaintiff.

After the close of the evidence, the trial court fixed a date for arguments and on that date, the defendant did not appear. Accordingly, the trial court passed an order in accordance with the provision of Order XVII, Rule 2 of the C.P.C. and proceeded ex parte against the defendant and fixed a date for hearing of the matter ex parte. The trial court, thereafter heard the matter and decreed the suit. The defendant filed an application under Order IX, Rule 13 of the C.P.C. which was rejected by the trial court on the ground that it was not maintainable, against which, the petitioner filed a revision, which was also dismissed. The petitioner, being aggrieved by the aforesaid orders, has filed the present writ petition.

The trial court rejected the application of the petitioner, as not maintainable on the ground that the Court had proceeded against the petitioner under Order XVII, Rule 2 of the C.P.C. and had decided the matter on merit, and therefore, only a review application u/s 47 of the C.P.C. could be filed and not an application under Order IX, Rule 13 of the C.P.C. The revisional court also affirmed the said view.

In my view, the orders of the court below are patently misconceived and erroneous and cannot be sustained. The trial court, itself admits that on account of non-appearance of the defendant, it proceeded under Order XVII, Rule 2 of the C.P.C. directing the matter to proceed ex parte against the defendant and fixed another date for the hearing the matter ex parte. This order of the trial court was in consonance with the provision of the Order IX which is contemplated under Order XVII, Rule 2 of the C.P.C. Once the Court proceeds under Order IX ex parte against the defendant, and thereafter, decrees the suit, the defendant gets a right to file an application under Order IX, Rule 13 of the C.P.C. because it was an ex parte order or could have filed a regular first appeal. The choice was with the defendant and he chose to file an application under Order IX, Rule 13 of the C.P.C, which was maintainable.

In Prakash Chander Manchanda and Another Vs. Janki Manchanda, the Supreme Court held that where the Court proceeded under Order XVII, Rule 2 of the C.P.C., the Court proceeds ex parte under Order IX and consequently, the defendant could file an application under Order IX, Rule 13 of the C.P.C. The said judgment of the Supreme Court is squarely applicable to the present case.

In view of the aforesaid, the impugned orders passed by the trial court as well as by the revisional court cannot be sustained and are quashed. The writ petition is allowed. The matter is remitted again to the trial court to decide the application of the defendant under Order IX, Rule 13 of the C.P.C. on merit after hearing all parties concerned.