P L D 1967 Dacca 633 (PLP)

This appeal was first heard on the 5th January 1966, when, after hearing the learned Advocates on both the sides, I dictated the judgment thereby dismissing the appeal. While going through the typed script thereafter I, however, felt that the matter needed further consideration and accordingly without signing the typed script set down the case for further hearing requesting at the same time Mr. D. C. Bhattacherjee to assist the Court as amicus curea. Having thus heard. Mr. Bhattacharjee and reheard the learned Advocates on both the sides at length 1 am now of opinion that the appeal should succeed. Mr. D. K. Khadim appearing on behalf of the defendant- appellant has attacked the impugned ex parte decree as well as the appellate decision on the ground that the deposition of Jamila taken on commission not having been tendered, as required under the law, was not legal evidence, and as such a decree passed thereon is insupportable in law. Mr. Md. Fazlul Karim, who has appeard for the plaintiffs -respondents, has, however, supported the view taken by the learned District Judge and tried to re‑enforce his support by citing the authority of Abed AU Shaikh v. Sadek Ali Biswas and others (1) wherein it has been held that the practice well established in the Mofussil Courts to treat the deposition of a witness examined on commission as evidence in the case even though it has not been formally tendered is not only perfectly consistent but also in strict accordance with the provisions of the Code of Civil Procedure on the subject. Proceeding Mr. Karim has further argued that since the learned Munsif by his order dated 30‑12‑58 specially adjourned the suit to 20‑1‑59 With the direction that the parties must come ready on that date, the provision of Rule 3 of Order XVII was fully applicable and accordingly the learned Munsif acted in consonance with the relevant provision of the law in proceeding with the suit and disposing of the same on the materials available on record, to wit, deposition of Jamila Khatun taken on commission. Mr. D. C. Bhattacharjee, on the other hand, has referred to the provisions of Order IX, rules 3 and 6 and Order XVII, rules 2 and 3 and submitted that the above‑mentioned provisions of Order XVII were not attracted at all inasmuch as it was not a case of adjournment. He has further submitted that Rule 6 of Order IX, which is the only provision under which an ex parte decree can be rendered and that in the instant case also must be taken to have been rendered, was equally inapplicable for the simple reason that the plaintiffs also were not in appearance. In the circumstances, according to him, the only course open to the learned Munsif was to proceed under Rule 3 which provides for the procedure to be followed where both the parties fail to appear when the suit is called on for hearing. It appears that the Code classifies default in appearance under two heads viz. (9 D L R 128) default in appearance when the suit is called on for hearing at the first hearing and (2) default in appearance at an adjourned hearing. The procedure to be followed in the event of the former is laid down in Order IX. Thus if both the parties are absent, the suit may be dismissed under Rule 3, if the plaintiff appears and the defendant is absent, the Court may proceed ex parte under rule 6, and if the defendant appears and the plaintiff is absent the suit shall be dismissed under rule

8. As to (2), i. e. failure to appear on a date to which the hearing of a suit is adjourned, provision is made in Order XVII. This applies when a party having appeared at the first hearing fails to appear subsequently on a date to which the hearing may be adjourned and the Court is empowered to dispose of the suit in one or other of the modes prescribed in Order IX, according as the circumstances may be found to warrant. Of the provisions of Order IX referred to above, I am con cerned now with the first‑mentioned two only. These i.e. Rules 3 and 6, in so far as they are relevant to the purpose of the instant case, read "(3) Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. 6. (1) Where the plaintiff appears and the defendant does not appear when the suit called on for hearing, then‑ (a) if it is proved that the summons was duly served, the Court may proceed ex parte; I now pass on to Order XVII, which under Rules 2 and 3 provides:‑ "(2) Procedure if parties fail to appear on the day fixed. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. (3) Court may proceed notwithstanding either party fails to produce evidence, etc. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the 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." As is clear, Rule 3 is applicable only to cases where a party to whom time has been granted on his own application to do some specified act necessary for him to take if he is to prosecute his case fails to take that step. In all other cases of adjourn ment, for whatever purpose that may be, the provision of Rule 2 shall apply. Rule 3 is really in the nature of an exception to the general provision embodied in the next preceding Rule, i. e. Rule 2, and authorises the Court to proceed to a decision on merit in spite of default if there are on record materials to warrant such a decision. As Rankin, C. J. in the case of Krishta Kishore Bose v. Pancharam Maity (47 C L J 467) has observed:‑ "It is quite true that in the order as recorded it appears that the adjournment was made on the application of both parties. It is quite true that there is that notice that parties would get no further adjournment in the words "parties must come ready on that day". Still I do not think that that is what is contemplated by the terms of Rule

3. Rule 2 begins by "Where, on any day to which the hearing of the suit is adjourned'; (it does not say at whose instance it is adjourned) "the parties or any of them fail to appear." Rule 3 says "where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit." It seems to me that default of appearance in a case of general adjournment before hearing is within Rule 2 and that Rule 3 (sic) is directed to a case where a party is definitely given time in order that he may take a certain step which it is necessary for him to take if he is to prosecute his case, and fails to take that step." It will thus appear that Rule 3 is clearly inapplicable to the instant case in that there was no adjournment at the instance of either party to enable it to take any step necessary for the purpose of prosecuting its case. In my opinion, it cannot be said to come within the ambit of Rule 2 either inasmuch as there was really no adjournment of the hearing of the suit at all. It is true that in the order dated 30‑12‑58, already cited above, the learned Munsif used the word "adjournment" but that appears to have been done rather loosely instead of the proper word "fixed" in that by the order dated 22‑12‑58 the suit had in express terms been set down on 30‑12‑58 for "fixing" the date of peremptory hearing. Again even assuming that there was adjournment of hearing though, in my opinion, it was not a case of such adjournment at all, that can only be regarded as a general adjournment coming within the purview of Order XVII, rule 2, and in that case also, it is the provision of rule 3 of Order IX that would be applicable in the circumstances of the instant case. It follows that in any view of the matter the suit could not be proceeded with under the provision of Order XVII, rule 3, even if there were legal materials on record to enable the Court to make a decision on merit. It could not be dealt with under Order IX, rule 6 either, in that the most essential condition postulated therein, i.e. appearance of the plaintiff, was wanting. The only provision that could therefore, apply was rule 3 of Order IX and as such the appropriate order to, make was one of dismissal for default. Thus regard being had to the above view taken by me, nothing turns upon the question whether the deposition of Jamila Khatun taken on commission, though not tendered, was legal evidence on the record of the Court in the sense that the Court was under an obligation to read it and decide the case upon it even if there was no appearance at the hearing of the parties or even though that was not tendered. I shall therefore not go into the same except observing that even in a case which is otherwise within rule 3 of Order XVII of the Code of Civil Pro cedure the Court is not obliged to dispose of the case by looking into the evidence taken on commission. The appeal is accordingly allowed. The judgments and decree of both the learned Courts below are set aside and the case is sent back to the Court of first instance. The learned Munsif will proceed with the suit and dispose of the same in accordance with the law and in the light of the observations made above. In doing so, he will also keep in view the joint petition of compromise purported to have been filed by both the parties and deal with the same in accordance with the law. Regard being had to the circumstances of the case I make no order as to costs in this Court. K. B. A. Appeal accepted.