1. The appellant-firm had taken on lease several units of machinery, instruments, godown etc. from 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. 19 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 be was entitled to about Rs. 80,000.
2. The suit was posted for trial on 20th October 1970. The advocate who appeared for the petitioner filed an application for adjournment, producing medical certificat
Please Login To View The Full Judgment!
s. The matter was adjourned to 2nd December 1970. On that date, the representation was that the petitioner (partner) representing the firm had a heart attack. The suit was then adjourned to 21st December 1970. On further request it was adjourned to 8th January 1971 for trial. On that date, the petitioner's advocate reported no instructions and the petitioner being absent, was set ex-parte. On 11th January 1971. P.W. 1 was examined on the side of the plaintiff for proving the claim, and the suit was decreed.3. 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 5th April 1971. It was posted to 14th June 1971 for trial. Several adjournments were granted. Eventually, the suit stood posted to 19th June 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 3rd July 1972 at the instance of the petitioner for getting on with the trial. On 3rd July 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 7th August 1972 costs was paid, bat the petitioner's advocate reported unreadiness. The suit stood posted to this day for producing evidence. Since the petitioner defaulted, the learned Second Additional District Judge, Pondicherry, took up the matter for consideration and reserved orders till 21st August 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 O. 17 R. 3, C.P.C. the claim as made by the plaintiff.4. Subsequently, the petitioner filed I.A. No. 926 of 1973 under O. 9 R. 13. C.P.C. requesting the Court to set aside the ex-parte decree passed against him on 21st August 1972. The learned Judge heard the counsel and rejected this application stating that the decree passed on 21st August 1972 was one under O. 17 R. 3 C.P.C.5. The correctness of this order is now canvassed by the petitioner in this revision.6. Mr. Srivatsamani, learned counsel appearing for the petitioner, contends that the decree passed on 21st August 1972 is not one under O. 17, R. 3, C.P.C. but only an ex-parte decree attracting O. 9, R. 13, C P.C. This matter has had a chequerd 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 11th January, 1971. P.W. 1 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 19th June 1972. Several adjournments were granted at the request of the petitioner. On 3rd July 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 7th August 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 O. 17, R. 3 C.P.C., as stated by the learned District Judge.7. On 7th August 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 bad 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 bis claim for demurrage. This was a case of disposal on merits within the ambit of R. 3 of O. 17, C.P.C. Time bad 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. R. 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 R. 3 to apply, the party must be present at the adjourned hearing. His advocate has been present, in this case. The decision under O. 17, R. 3 amount to a ‘decree’ and the remedy of the party aggrieved can be only by way of appeal.8. Learned Counsel appearing for the petitioner relies upon the decision in Muthaya v. Commr. Madras HR & CE A.I.R. 1955 Mad. 70; 67 L.W. 828. 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 v. Vairavan Servaigarar (1955) I M.L.J. 20; 67 L.W. 928 is relied upon by the petitioner. This was not approved in Gopal Gounder v. Ambujammal (1967) II M.L.J. 502; 80 L.W. 441 in view of the Bench decision in Dakshinamurthy v. Ponnuswami A.I.R 1949 Mad. 78; 61 L.W. 63. 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 Dakshinamurthi v. Ponnuswami A.I.R 1949 Mad. 78; 61 L.W. 63 then, the disposal must be deemed to be one under. O. 17, R. 3 C.P.C. against which only an appeal would lie.9. In this case, the suit was adjourned at the request of the petitioner for adducing evidence: On the adjourned 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 bad 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 O. 17, R. 3. C.P.C. and the learned District Judge has rightly rejected the application for setting aside the decree dated 21st August 1972.10. There is no merit in this appeal. The same is dismissed with costs.
"1974 (87) LW 667"