TMI Blog1985 (5) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... fs, who are heirs and successors of the creditor deceased Baij Nath Rajgariya, have given the details of payment made by the defendant in para 4 of the plaint and it is stated that the interest up-till 31st October, 1965 has been paid. The defendant had issued cheque No. 002766 of ₹ 2,700/- dated 15-12-1967 and cheque No. 002792 of ₹ 2,700/- dated 31-12-1967 drawn on State Bank of India, but the same were dishonoured. The defendant had, however, in his letter dated 3-2-1968 had assured the husband of the plaintiff No. 5 that he will send a bank draft. But no bank draft was sent by the defendant as was promised. The defendant had written another letter dated 9-3-1969 in which he had assured to send money by 15th April, 1969 and again wrote several letters about the debt but no money was paid according to the promise. The defendant had, however, paid on 6-/-1972 a sum of ₹ 1000/-towards payment of interest on the above-mentioned debt and had further assured to get the above-mentioned shares, on the security of which said loan of ₹ 30,000/- was taken, transferred in the name of the plaintiffs otherwise the amount was promised to be paid. The defendant is said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Limited, Babhanan Bhabhinpur, Tahsil Utraula, District Gonda and the agreement was also written and executed at said place hence the suit is maintainable in Civil Court at Gonda. 3. On the pleadings of the parties, the following issues were framed :-- 1. Whether the defendant is personalty liable to pay the debt in question, besides the lien on the shares of the defendant, alleged in the plaint. 2. Whether the defendant is not personally liable and the plaintiff is entitled only to get transferred the said shares or to sell them as alleged in the written statement? 3. Whether this Court has no territorial jurisdiction to try this suit? 4. To what relief, if any, is the plaintiff entitled? 4. No other issue was pressed. The plaintiffs filed five papers per list 59-Ga and thirteen papers per list 22-Ga. The defendant had admitted papers Nos. 1, 2, 5, 7, 9, 11 and 13. These were marked as Exhibits 3 to 9. The aforesaid agreement regarding advance of loan dated 27th July, 1959 (paper No. Ga-23/1 and Ga-23/2) was admitted by the defendant. Receipt regarding payment of said loan amount of ₹ 30,000/- through cheque drawn on State Bank of India, Basti was also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file any written statement on 4-10-1976 and the case was directed to be put up on the date fixed, i.e. 6-10-1976. Since no written statement was filed by the defendant and none had appeared on his behalf on 6-10-1976 when the case was taken up, as such, the suit was ordered to proceed ex parte against the defendant and 27-10-1976 was fixed for hearing. The defendant had, however, moved an application on 8-10-1976 for setting aside the ex parte order dated 6-10-1976. This application was taken up lor disposal on 27-10-1976, which was the date earlier fixed for hearing. But none, appeared on behalf of the defendant on said date. The Court below had, however, in the interest of justice allowed the aforesaid application moved by the defendant by setting aside the order dated 6-10-1976 by which the case was directed to proceed ex parte against the defendant. This application was allowed on payment of ₹ 75/- as costs to be paid by 15-11-1976 with the condition that the written statement shall also be filed by the said date and in case of default or non-compliance of said order, the application was ordered to stand dismissed and the case was directed to be heard ex parte on 18-11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the case was fixed for final hearing on 2-5-1977. The case could not be taken up on 2-5-1977 as the Presiding Officer was on leave and it was adjourned to 1-6-1977. But on that date it was adjourned and fixed for final hearing on 26-7-1977 on the application of the plaintiffs as their counsel was ill. The case however could not be taken up for hearing on 26-7-1977 as defendant moved application for adjournment. It was adjourned and fixed for hearing on 30-8-1977. But on that date, the suit was dismissed in default as none appeared for the parties when the case was called for hearing. It was, however, restored vide order dated 1-10-1977 and summonses were issued to the defendant fixing 17-11-1977 for hearing. The defendant was served with the notice, but the case was adjourned and listed for final hearing on 2-1-1978. On this date none appeared on behalf of the defendant and, thus, the case was ordered to proceed ex parte against the defendant fixing 4-1-1978 for ex parte hearing. On 4-1-1978 the case was adjourned to 14-1-1978 as the Presiding Officer was on leave. No one, however, appeared on behalf of the defendant even on said date. The defendant, however, moved an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s; P. W. 1 Ratan Lal and P. W. 2 Mohan Lal. After hearing the arguments the learned lower Court fixed 14-8-1978 for pronouncement of judgment. 6. The defendant moved an application on 14-8-1978 (paper No. 119/C-2) for setting aside the order dated 10-8-1978. He also moved another application (paper No. 121/C2) for staying further proceedings. The plaintiff was granted time to file objection on these applications and the same were ordered to be put up for disposal on 21-8-1978. Delivery of judgment was also postponed till disposal of said applications. These applications were rejected by the learned lower Court vide order dated 24-8-1978 and the suit of the plaintiffs was decreed by the impugned order dated 24-8-1978. 7. We have heard the learned counsel for the parties at some length and have perused the record very carefully. 8. Learned counsel for the appellant had urged that the lower Court had acted illegally and with material irregularity in exercise of jurisdiction in proceeding to decide the case under Order XVII, Rule 3 of the Code. His contention was that since the learned counsel for the defendant Sri S. P. Shukla, who had moved the adjournment application on 10- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant-appellant that since the defendant's counsel had instructions only to put in appearance on behalf of the defendant and to move application for adjournment and besides that he had no further instructions to conduct the case on behalf of the defendant, and, as such, the defendant could not be treated to be present on the said date of hearing when the Court, after rejecting the applications for adjournment, proceeded under Order XVII, Rule 3, to decide the case on merits. 9. In reply learned counsel for the plaintiffs-respondents urged that since on the previous date of final hearing the suit was adjourned and fixed for final hearing on 14-8-1978 on an application moved by the defendant himself and the defendant had failed to bring his evidence on said date for which time was granted to him, and, as such, the learned court below rightly proceeded to decide the case under Order XVII, Rule 3 of the Code by rejecting the application moved for adjournment by the learned counsel for the defendant. Learned counsel also referred to various adjournment applications moved by the defendant on earlier hearing in the suit and contended that the learned Court below rightly rejected th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjournment, and, as such, the defendant would be deemed to be present and the Court below rightly proceeded to decide the suit under Order XVII, Rule 3 of the Code and no exception can to taken to the judgment and decree passed by the Court below on the aforesaid argument urged by the learned counsel for the appellant. 10. We have considered the aforesaid arguments very carefully and we find no substance in the argument urged by the learned counsel for the defendant-appellant. 11. The foremost crucial question for consideration in the present case would be whether the Court below could proceed to decide the suit under Order XVII, Rule 3 of the Code on the facts and circumstances of the case stated above, or not. 12. Having perused very carefully the provisions of Order XVII, Rules 2 and 3 we are of the Opinion that Rule 2 applies, where the adjournment has been generally granted and not at the instance of any party for any specific purpose mentioned in Rule 3 of Order XVII. It is also clear that Rule 2 would not apply where the party has failed to apear at the hearing. The Court in that event may proceed to dispose of the suit under one of the modes directed in that beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeded to decide the case under Order XVII, Rule 3 of the Code. 15. Learned counsel for the defendant-appellant had strenuosly contended that since after the rejection of the application for adjournment, the learned counsel for the defendant had left the Court as he had no further instructions in the case and was instructed only to move application for adjournment and, thus, the defendant cannot be deemed to be present at the time of hearing. The case would, therefore, not be covered under Rule 3 and the decree passed in the suit could be taken to be an ex parte decree falling under Order XVII, Rule 2 read with Order IX of the Code, In other words his contention was that since the defendant was not physically present at the time of hearing and his counsel Sri S. P. Shukla was engaged to move application for adjournment and he had no further instructions to proceed with the suit on behalf of the defendant, and, as such, the defendant cannot be deemed to be present at the time of hearing although the defendant had, on the previous date of hearing, obtained adjournment and was granted time to lead evidence on the said adjourned date of hearing. We have carefully considered the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by Order XVII, Rule 3 only in case he has failed to dp any of the acts envisaged by Order XVII, Rule 3. In such circumstances the party would not be taken to be absent, but would be deemed to be present in view of the Explanation added to Order XVII, Rule 2. Thus, on the facts and circumstances of the present case, we are of the opinion that the defendant would be deemed to be present on the said adjourned date of hearing as his counsel- had put in appearance and had moved an application for adjournment. The case was, thus, covered by Order XVII, Rule 3 as the defendant had failed to produce evidence on the adjourned date of hearing for which he was granted time. 18. Learned counsel for the appellant had, however, referred to a decision in Smt. Gulab Bai, Bhopal v. Dr. Moti Lal, AIR 1983 All 191 wherein learned single Judge by quoting certain observations of the judgment delivered by K. B. Asthana, J. had observed that :-- Rule 3 can only be resorted to when the party, to whom time was given to produce evidence or to cause attendance of the witnesses or to perform any other act necessary for further progress of the suit is actually present on the adjourned date of hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Full Bench on the aforesaid point, and we are unable to persuade ourselves to take the view expressed in Smt. Gulab Bai's case for holding that it is only factual presence which has to be taken into consideration and not the fictional presence envisaged by Explanation to Rule 2 for determining whether the case would fall under Order XII, Rule 3 or under Order XVII, Rule 2 of the Code. In our opinion the case would be covered by Order XVII, Rule 3 where the defendant is either personally present at the time when the case is taken up on the adjourned date of hearing or is deemed to be present as is envisaged by Explanation to Rule 2 of Order XVII of the Code. With due respect to the learned Judge we are unable to agree with the view expressed in Smt. Gulab Bai's case (supra) on the said point and this decision is hereby overruled. 20. In the present case it is not disputed that the learned counsel for the defendant had put in appearance on 10-8-1978 and had moved applications for adjournment, which were rejected. Since the defendant was represented by a counsel, though allegedly engaged only for moving an application for adjournment, he would be taken to be presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it did not decide the case on that very day. The case was adjourned to 14-8-1978. He, thus, contended that the judgment and decree which was passed in the suit by the learned Court below on 24-8-1978 cannot be treated to be covered by Order XVII, Rule 3 of the Code and it is merely an ex parte decree and deserves to be set aside as the defendant has shown sufficient cause for his absence on 10-8-1978 when the Court had proceeded to record the evidence of the plaintiff in purported exercise of jurisdiction under Order XVII, Rule 3 of the Code to decide the case on merits. In support of his contention learned counsel placed reliance upon a decision in Dayalji Wasanji v. Kedarnat Onkarmal, AIR 1953 Nag 222 wherein it has been held that, As I understand this rule, a Court proceeding under this provision must decide the suit 'forthwith' that is, on the same date, and it cannot adjourn the hearing of the suit to some other date and then purport to decide it under Order 17, Rule 3 . We are unable to agree with the view expressed in aforesaid decision. The word 'forthwith' appearing in Order XVII, Rule 3 of the Code cannot be so construed as held in the aforesaid decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of above we do not find any substance in the aforesaid argument of the learned counsel for the appellant that since the court below had not decided the suit forthwith on that very day, i.e. 10-8-1978 when it had proceeded to decide the case under Order XVII, Rule 3 of the Code and had recorded evidence of the plaintiff. In our opinion, the word forthwith used in Order XVII Rule 3 cannot be taken to be a mandate to decide the suit the same day as a penalty for default. Thus, the judgment and decree dated 24-8-1978 passed by the Court below is clearly covered by the provisions contained in Order XVII, Rule 3 of the Code and no exception can be taken to it on the aforesaid ground urged by the learned counsel for the appellant. 23. Learned counsel for the appellant had next contended that the court below had acted illegally and with material irregularity in exercise of jurisdiction in refusing to adjourn the case on an application for adjournment moved by the defendant's counsel on 10-8-1978 wherein sufficient cause was shown for the non-appearance of the defendant and his witnesses. Learned counsel had further contended that the past conduct of the defendant in seeking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case these applications were also not supported by affidavits and the defendant had taken no steps for producing his evidence, and, as such, we are unable to hold that the learned lower court had acted illegally or improperly in not granting adjournment to the defendant, who, as already observed above, had got the case adjourned several times and it was specifically mentioned that no further adjournment will be granted. Thus, in our opinion, no error has been committed by the learned court below in rejecting the adjournment applications moved on behalf of the defendant and in proceeding to decide the suit under Order XVII Rule 3 of the Code. 25. Learned counsel for the appellant next contended that the judgment and decree passed by the court below cannot be sustained on the fact and law. His contention was that the defendant-appellant had taken loan on the security of the shares of the Seksaria Sugar Mills Pvt. Limited, and so no personal money decree could be passed against the defendant on the loan transaction evidenced by agreement dated 17th July, 1959 (Exhibit 3). In other words he contended that the plaintiffs could proceed only against the 465 shares enumerated in the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat this plea, though taken in the written statement, was not pressed in issue. But apart from it, this suit appears to be well within limitation. A sum of ₹ 1000/-, the receipt of which has been filed and marked Exhibit-9, was paid as interest on 6-7-1972 on the aforesaid loan amount, and, as such, the suit filed by the plaintiffs was well within limitation. 30. Learned counsel for the appellant next contended that there were interpolations in the receipt dated 6-7-1972 (Exhibit 9) and the words 'Varna Roopaiya doonga' were subsequently written in the said document. We have perused the said receipt Exhibit-9 and we do not find any substance in the aforesaid argument. 31. It is not disputed that a sum of ₹ 1000/- was paid by the defendant to the plaintiffs on 6-7-1972 vide aforesaid receipt, Exhibit-9. The execution of the said document is admitted except for the aforesaid words, which, according to the, defendant, were subsequently added. In our opinion, the addition of these words in the receipt subsequently would not make the said receipt inadmissible in evidence because its execution has been admitted by the defendant. We have already held above that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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