# Nanku & Ors v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 838
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-30
- **Case number:** Writ-C No. 581 of 2010
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nanku-ors-v-state-of-u-p-ors-50461
- **Pages:** 30

## Headnote

Law-
Civil
Law-Code
of
Civil
Procedure-1908-Order 9 Rule 13, Order 17
Rule 2-General Rules Civil-89-A- Order
sheet of the Court concerned shows that
the transferee Court has not recorded any
satisfaction
that
the
defendants
were
informed of the transfer as required as per
sub-rule 4 of Rule 89-A of GRC-If evidence
or a substantial portion of evidence of "any
party" has been adduced and "such party"
fails to appear on any date to which the
hearing of suit is adjourned then in that
eventuality, the application on behalf of the
said party under Order 9 Rule 13 CPC would
not be maintainable. The expression "any
party" and expression "such party" are
relevant. In this case, the evidence of Gaon
Sabha was recorded in the revenue Court of
Extra
Officer-Ist,
District
Bahraich
(transferee Court) on 26.05.1995 but how
the witness of Gaon Sabha, daughter-in-law
of original plaintiff-Devta Deen, came to
know about the pendency of case in the
revenue Court of Extra Officer Ist, Bahraich,
is not clear from the record, as observed
hereinabove. However, the evidence of St.
of U.P. (defendant in suit) was not adduced.

No notice regarding transfer of the case,
in issue, was ever served or received or
issued or notified and the St.ment of
witness of St. of U.P. (one of the
defendants),
who
filed
the
separate
written St.ment, was not recorded, as
such the application was maintainable
under Order 9 Rule 13 CPC and rightly
allowed by and affirmed by the Revisional
Court concerned.

Petition dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,928 of 97,333. This is a partial read: ask again with offset=39928 for what follows._

838 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 482 Cr.P.C., hence administration
of criminal justice has already come into
play and the same cannot be set at knaught
by simultaneously invoking extra-ordinary
remedy
under
Article
226
of
the
Constitution of India, which may be a
remedy of right but as per settled law
cannot be issued as a matter of course.
Moreover, when corpus is in legal custody
under valid remand order, the present writ
petition is not be maintainable as per the
law settled by the Apex Court as well as the
High Courts.

32. Consequently, in view of the
discussions made hereinabove objection
raised by the State that the present petition
is not maintainable as the petitioner has
already invoked provisions of Section 482
Cr.P.C. and have approached the court, is
upheld.

33. Present petition, accordingly,
stands dismissed.

34. However, it is made clear that
observations
made
in
the
aforesaid
judgment shall have no bearing on any
other pending or future proceedings
----------
(2023) 6 ILRA 838
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.05.2023

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ-C No. 581 of 2010

Nanku & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Dr. L.P. Mishra, Sri Rajieu Kumar Tripathi

Counsel for the Respondents:
C.S.C., Sri Jai Kumar, Sri Pankaj Gupta, Sri
Y.K. Mishra

Civil
Law-
Civil
Law-Code
of
Civil
Procedure-1908-Order 9 Rule 13, Order 17
Rule 2-General Rules Civil-89-A- Order
sheet of the Court concerned shows that
the transferee Court has not recorded any
satisfaction
that
the
defendants
were
informed of the transfer as required as per
sub-rule 4 of Rule 89-A of GRC-If evidence
or a substantial portion of evidence of "any
party" has been adduced and "such party"
fails to appear on any date to which the
hearing of suit is adjourned then in that
eventuality, the application on behalf of the
said party under Order 9 Rule 13 CPC would
not be maintainable. The expression "any
party" and expression "such party" are
relevant. In this case, the evidence of Gaon
Sabha was recorded in the revenue Court of
Extra
Officer-Ist,
District
Bahraich
(transferee Court) on 26.05.1995 but how
the witness of Gaon Sabha, daughter-in-law
of original plaintiff-Devta Deen, came to
know about the pendency of case in the
revenue Court of Extra Officer Ist, Bahraich,
is not clear from the record, as observed
hereinabove. However, the evidence of St.
of U.P. (defendant in suit) was not adduced.

No notice regarding transfer of the case,
in issue, was ever served or received or
issued or notified and the St.ment of
witness of St. of U.P. (one of the
defendants),
who
filed
the
separate
written St.ment, was not recorded, as
such the application was maintainable
under Order 9 Rule 13 CPC and rightly
allowed by and affirmed by the Revisional
Court concerned.

Petition dismissed. (E-15)

List of Cases cited:

1. G. Ratna Raj (Dead) by Legal Representatives
Vs Sri Muthukumarasamy Permanent Fund Ltd.
&
anr.reported
in
2019
(11)
SCC
301.
6 All. Nanku & Ors. Vs. State of U.P. & Ors.
839
2. Sri Pitamber Prasad Vs Sohan Lal & ors.
reported in 1956 SCC OnLine All 182.

3. M.S. Khalsa Vs Chiranji Lal reported in 1975
SCC OnLine All 364.

4. Prakash Chander Manchanda & ors.Vs Janki
Manchanda reported in AIR 1987 SC 42

5. Balbir Singh Chauhan Vs Vijai Kumar Agarwal
reported in 1986 SCC OnLine All 694

6. Akttaryar Khan Vs Azahar Yar Khan reported
in 1993 SCC OnLine All 156

7. Sikandar Vs Akhalak reported in 2008 SCC
OnLine All 140

8. Writ Petition No. 1899 (MS) of 2012 (Jaggan
Nath & ors. Vs The District Judge, Barabanki &
ors.)

9. Anamika MishraVersus St. of U.P. &
anr.reported in 2019 SCC OnLine All 4599

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Dr. L.P.Mihsra, learned
Senior Member of Bar assisted by Sri
Rajieu Kumar Tripathi, learned counsel for
the petitioners and Sri Hemant Kumar
Pandey, learned counsel for the State of
U.P. as also Sri Pankaj Gupta, learned
counsel for the respondent No. 7/Land
Management Committee concerned.

2. Initially, by means of the present
petition, petitioners have assailed the order
dated 22.12.2009 passed by the respondent
No.4-Tehsildar, Mahsi, District-Bahraich,
whereby Tehsildar, Mahsi, directed the
Revenue Inspector of the vicinity to take
possession of the land (gatas in issue
mentioned in the order) and place the
proposal of allotment of land to eligible
persons, and consequential relief was also
sought.
Thereafter,
the
petition
was
amended. It was for the purposes of
assailing the orders dated 14.12.2009 and
24.02.2010 passed by the respondent No. 9Commissioner, Devi Patan Mandal, Gonda
and
respondent
No.10-Sub
Divisional
Magistrate, Bahraich, respectively.

3. By the impugned order dated
14.12.2009,
respondent
No.10-Sub
Divisional Magistrate, Bahraich allowed
the application dated 27.03.2008 preferred
under Order 9 Rule 13 CPC by State of
U.P.
and
Gaon
Sabha-Bhabhnauti
Shankarpur
through
D.G.C.
Revenue,
District-Bahraich
as
also
another
application for restoration of the case,
which was filed by one Rajit Ram. The
order dated 14.12.2009 was assailed by the
petitioners in the Revision No. 130, which
was filed under Section 333 of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950 (in short "Act of 1950"). The
revision filed by the petitioners in relation
to the application preferred by D.G.C.
Revenue was dismissed by the impugned
order dated 24.02.2010.

4. It would not be out of place to point
out here that the issue related to limitation in
filing the application under Order 9 Rule 13
CPC has not been pressed before this Court.
It is in view of the fact that the Revision No.
131 was filed assailing the order dated
07.12.2009, whereby the S.D.O. concerned
observed that the issue of limitation would
be considered at the stage of passing the
final order. Thereafter, both the revisions
were
clubbed
and
decided
by
the
revisional
authority/respondent
No.9Commissioner,
Devi
Patan
Mandal,
Gonda by the common order dated
24.02.2010.

5. At this stage, this Court feels it
appropriate to reproduce the main relief(s)
sought in the present petition:-
840 INDIAN LAW REPORTS ALLAHABAD SERIES

"(i) Issue a writ order or direction
in the nature of certiorari, quashing the
impugned order dated 22.12.2009 passed
by the Tehsildar, Mahsi, District Bahraich,
as contained in Annexure No.19.

(i)(a) Issue a writ, order or
direction in the nature of certiorari
quashing the impugned orders dated
14.12.2009 and 24.02.2010 respectively
passed by opp-partes nos. 9 & 10, as
contained in Annexure Nos.15 & 25,
respectively.

(ii) Issue a writ, order or direction
in the nature of mandamus, commanding
the opposite parties, to adhere to the Rules
of Law and enforce the same and not to act
in violation of the order dated 21.12.2009
passed by the Commissioner, Devipatan
Mandal, Gonda, in Revision No. 366 under
Section 333 of the U.P. Zamindari
Abolition & Land Reforms Act, 1950, and
not to interfere in the peaceful cultivator
possession
and
harvesting
the
crops
standing-over the disputed land of khata no.
172,
situate
in
Village
Babhnauti
Shankerpur, Pargana-Fakharpur, TehsilMahsi, District Bahraich by the petitioners.

(iii) Issue a writ, order or
direction in the nature of mandamus,
commanding the opp-parties, not to destroy
the standing crops and tress and also not to
dispossess the petitioners from the disputed
land of Khata No. 172, situate in Village
Babhnauti Shankerpur, Pargana-Fakharpur,
Tehsil-Mahsi,
District
Bahraich,
and,
thereby, not to carry on the proceedings of
allotment during the pendency of the Suit."

6. Needless to say that vide order
dated 28.03.2023, the original record of the
case was summoned, which is before this
Court.

7. Facts, in brief, of the case which
are relevant for the purposes of the disposal
of the case, are as under:-

(i) A Suit No. 881/194/143 (in
short "Suit") for declaration was filed under
Section 229-B of the Act of 1950 by
original plaintiff namely Devta Deen,
predecessor in interest of petitioners.

(ii) In the plaint, the Gaon SabhaBabhnauti Shankerpur, Pargana-Fakharpur,
Tehsil-Mahsi, District-Bahraich, has been
impleaded through Gopal Singh, Village
Pradhan and State of U.P. has been
impleaded through District Magistrate,
Bahraich.

(iii) The suit was filed, as appears
from the record, before the Assistant Sub
Divisional Officer (K), 'K' refers to
'Kaiserganj', District-Bahraich.

(iv) It transpires from the record
that after service of notice, the written
statement was filed by the Gaon Sabha
which bears the signature of Gopal Singh,
Village Pradhan. It also appears from the
written statement of Gaon Sabha that the
plaint case was opposed. (v) Another
written statement bearing signature of Shiv
Naryan Singh, Advocate Panel Lawyer/Sub
D.G.C. (Mall) was also filed wherefrom
also it appears that the plaint case was
opposed. This written statement, as appears
from the record, is a proforma written
statement and in the same, name of the
Gaon Sabha has not been indicated.

(vi) From the aforesaid facts, it
can be deduced that opposing the claim of
original plaintiff- Devta Deen, one written
statement was filed by Gaon Sabha and
another written statement was filed by the
State of U.P.
6 All. Nanku & Ors. Vs. State of U.P. & Ors.
841

(vii) At this stage, it would be
appropriate to indicate that from the record,
it appears that the Vakalatnama(s) were
filed by some Advocates on behalf of Gaon
Sabha.

(viii) It also transpires from the
record that the case for declaration of rights
under Section 229-B of the Act of 1950
filed by Devta Deen was transferred on
several occasions and the Suit was
proceeded. However, to the view of this
Court, these facts and dates are not
relevant. The last few dates and the order(s)
passed on the said dates are relevant. It is in
view of the fact that prior to final decision
in the matter vide order dated 31.05.1995,
which was recalled vide order dated
14.12.2009, the case was transferred to the
revenue Court of S.D.O. (K) and thereafter,
to the revenue Court of Extra Officer Ist,
Bahraich, who passed the final order dated
31.06.1995 and one of the pleas of State of
U.P. and Gaon Sabha in the application
preferred under Order 9 Rule 13 CPC for
recalling the final order dated 31.05.1995
passed in Suit was to the effect that the
applicants were not aware about the
pendency of Suit in the revenue Court
concerned. The said relevant part of the
application reads as "lsok esa fuosnu gS fd
eqdnek bfCrnkbZ Jhekuth dh U;k;ky; ls
fnukad 31-05-95 bZ0 dks ,d i{kh; :i ls fuxZr
gqbZ gS mDr okn dh dksbZ tkudkjh vkosnd x.k
fdlh Hkh izdkj fof/kd :i ls ugh gqbZ"

(ix) One fact, which appears from
the impugned order dated 14.12.2009, is
that at the time of recording the statement
of witnesses and passing final order dated
31.05.1995, Lallan, petitioner No. 4, (who
was substituted in suit) son of original
plaintiff- Devta Deen was the Pradhan of
village concerned and Up-pradhan was his
wife Smt. Rama Devi, who supported the
plaint case in her statement, which was
recorded on 26.05.1995, after transfer of
case in revenue Court of Extra Officer Ist,
Bahraich.

(x) The relevant order(s), to the
view of this Court, passed in the case are
on reproduction are as under:-

"31-01-95

izLrqrA oknh gkftj vnkyr i=koyh SDO
(K) ds u;k;ky; esa LFkkukUrj.k gsrq izLrqr gqbZA

vr% vkns'k gqvk fd i=koyh 12-02-95 dks
is'k gksA

g0 viBuh;

12-02-95
 .......................

8-3-95 .

......................

29-03-85
 .......................

1-4-95

.......................

11-4-95

 ......................

29-4-95
 ......................

13-5-95
 .......................

14-5-95

.......................

15-5-95 .
 ......................

17-5-95 ................

izLrqrA iqdkj djkbZ xbZ i{k gkftj
vk;sA P.W. 1 jkegsrq o PW 2 uudÅ dk c;ku
djk;k x;k lk{; lekIrA

vr% izfroknh lk{; gsrq fnukad 26-595 is'k gksA
842 INDIAN LAW REPORTS ALLAHABAD SERIES

g0 viBuh;

ftykf/kdkjh egksn; ds vkns'k fn0 055-95 ds vuqikyu esa i=koyh vfr0 vf/k0 izFke
ds U;k;ky; ij gLrkUrfjr dh tkrh gS i{k
fnukad 26-5-95 vfr0 vf/k0 izFke ds U;k;k0 ij
mifLFkr gksaA

g0 viBuh;
20-1-95

26-5-95

i=koyh U;k;ky; SDO 1⁄4eglh1⁄2 ls izkIr
gksdj is'k gqbZA iqdkj djkbZ xbZ& f}rh; i{k dh rjQ
ls iz/kku xkao viBuh; ds lk{; vafdr fd, x, lk0
lekIr gq,A

i=koyh okLrs cgl fnukad 28-5-95 dks
is'k gksA

g0 viBuh;

28-5-95

izLrqrA iqdkj ij oknh e; vf/koDrk
gkftj vk,A cgl lquh x;hA

i=koyh okLrs vkns'k fn0 31-5-95 dks is'k
gksA

g0 viBuh;

31-5-95

i=koyh is'k gqbZA cgl gks pqdh gSA eSaus
i=koyh dk v/;;u euu dj voyksdu fd;kA nkok
oknh fMdzh fd;k tkrk gSA 2 fdrk vkns'k layXu
i=koyh gSA okn vko';d dk;Zokgh i=koyh nkf[ky
nQ~rj gksA
g0 viBuh;
EO-I
31-5-95"

(xi) What reflects from the order
sheet of the case including the orders,
quoted above, is as under:-

(a)
From
the
order
dated
31.01.1995, it appears that the paper book
of the Suit, in issue, was received from the
S.D.O. (K), 'K' refers to 'Kaiserganj', in the
Court of S.D.O., Mahsi on 31.01.1995.

(b) After receiving the file in the
revenue Court of S.D.O., Mahsi, the parties
appeared on different dates and on
17.05.1995, the statement(s) of PW1/Ramhetu
and
PW-2/Nankau
were
recorded and the case was fixed for
26.05.1995
for
evidence
of
defendants/opposite parties.

(c) Vide order dated 05.05.1995
passed by the District Magistrate, the Suit
was transferred from revenue Court of
S.D.O., Mahsi, District- Bahraich to Extra
Officer Ist, District- Bahraich and based
upon the same, the order sheet was drawn
directing
the
parties
to
appear
on
26.05.1995 before the revenue Court of
Extra Officer Ist, District- Bahraich and
this order appears to be passed on
21.01.1995.

(d) The date i.e. 21.01.1995
appears to be inadvertently mentioned. It is
in view of the fact(s) that the order dated
31.01.1995 shows that the paper book of
Suit, in issue, was received from revenue
Court of S.D.O., (K) in revenue Court of
S.D.O., Mahsi on 31.01.1995 and on
17.05.1995, the statement(s) of witnesses
of PW-1 & PW-2 were recorded. Thus, it
appears that the order dated 05.05.1995
passed
by
the
District
Magistrate
transferring the case was not received prior
to proceedings carried out on 17.05.1995
fixing
next
date
as
26.05.1995
for
recording evidence of defendants/opposite
parties. If it was received prior to
17.05.1995 then in that eventuality the
6 All. Nanku & Ors. Vs. State of U.P. & Ors.
843
statements of witnesses were not recorded
on 17.05.1995.

(e) Between 17.05.1995 and
26.05.1995, the dates fixed in the case, the
order
of
District
Magistrate
dated
05.05.1995 was not received in revenue
Court of S.D.O., Mahsi and upon receiving
the order dated 05.05.1995 of District
Magistrate transferring the case to the
revenue Court of Extra Officer Ist,
Bahraich, an order bearing date
as
21.01.1995 (wrongly indicated) was passed
directing the parties to appear in the
revenue Court of Extra Officer Ist on
26.05.1995, the date already fixed vide
order dated 17.05.1995.

(f) From the aforesaid, it is
apparent that on 21.01.1995 (wrongly
indicated), the parties were not present and
accordingly, it can be deduced that the
parties were not aware regarding transfer of
the case.

(g) Notice regarding transfer of
case to revenue Court of Extra Officer Ist
was neither issued, nor notified nor the
parties were informed by the S.D.O., Mahsi
or Extra Officer Ist regarding transfer and
pendency of case in the Court of Extra
Officer Ist.

(h) On 26.05.1995, the statement of
witness (Smt. Rama Devi, daughter-in-law of
original
plaintiff-Devta
Deen)
of
one
defendant to the Suit namely "Gaon Sabha"
was recorded but it is not clear from the order
sheet/proceedings drawn by the concerned
revenue Courts that how and in what manner,
this witness of defendant-Gaon Sabha namely
Smt. Rama Devi w/o Lallan s/o Devta Deen
(original plaintiff), who supported the plaint
case, came to know about the pendency of
the case in revenue Court of Extra Officer Ist.

(i) The order sheet drawn by the
Court on 31.01.1995 to 31.05.1995 does
not
bear
the
signature
of
counsel
representing Gaon Sabha and also of the
counsel representing State of U.P.

8. In the aforesaid background of the
case, Dr. L.P. Mishra, learned Senior
Member of the Bar assisted by Sri Rajieu
Kumar
Tripathi,
learned
counsel
representing the petitioners stated that two
applications were preferred for recalling the
order dated 31.05.1995 under Order 9 Rule
13 CPC. One by Gaon Sabha through Rajit
Ram and another by D.G.C. Revenue,
which indicates that the same was preferred
by the State of U.P. and Gaon Sabha. Both
these applications were allowed by the
impugned order dated 14.12.2009 by the
respondent
No.
10/Sub-Divisional
Magistrate, Bahraich, though, the same
were not maintainable under Order 9 Rule
13 CPC in view of explanation to Rule 2 of
Order 17 CPC as also Order 9 Rule 6 CPC
read with Order 17 Rule 1 & 2 CPC
particularly the explanation to the same. It
is for the reason that the case was
transferred from S.D.O. (K) to the Court of
S.D.O., Mahsi as appears from the order
dated 31.01.1995, which is available on the
record of the concerned Authority and after
the said transfer, the statements of PW-1 &
PW-2 were recorded on 17.05.1995 fixing
26.05.1995
for
recording
the
statement/evidence
of
defendants
and
thereafter, though, the case was transferred
to the revenue Court of Extra Officer, Ist
from the Court of S.D.O. Mahsi, as appears
from the order sheet dated 26.05.1995, the
evidence of defendant to the suit namely
Gaon Sabha concerned was recorded on
26.05.1995 itself and the explanation
appended to Rule 2 of Order 17 CPC shows
that if sufficient evidence has been adduced
by the party then on his behalf, the
844 INDIAN LAW REPORTS ALLAHABAD SERIES
application would not be maintainable
under Order 9 Rule 13 CPC. Thus, the
order
passed
by
the
Sub-Divisional
Magistrate
dated
14.12.2009
is
not
sustainable.

9. Further submission is that the order
dated 14.12.2009 was challenged before the
Revisional Authority by means of Revision
Nos. 130
and
131. The Revisional
Authority decided the revision by an order
dated 24.02.2010, which is also impugned
in this petition. The operative portion of
this order indicates that the revision was
allowed against the respondent/Rajit Ram
and the same was dismissed with regard to
the application dated 27.03.2008 preferred
by the D.G.C, Revenue under Order 9 Rule
13 CPC on behalf of State of U.P. and
Gaon Sabha, which was allowed vide order
dated 14.12.2009.

10. Sri Mishra further stated that the
aforesaid aspect of the case, which is based
upon the fact that sufficient evidence of
defendant-Gaon Sabha was recorded after
transfer of the case from S.D.O, Mahsi to
Extra Officer, Ist, Bahraich and accordinlgy,
the application under Order 9 Rule 13 CPC
was not maintainable was overlooked by the
Revisional Authority, though, the same ought
to have been considered, as such, the order
dated 24.02.2010 is also liable to be
interfered with by this Court.

11. Sri Mishra also indicated some facts
on the merits of the case including regarding
initiation of proceedings twice against the
original plaintiff- Devata Deen, which were
initiated by the Gaon Sabha under Section
229-B of the Act of 1950. However, to the
view of this Court, the factual aspect of the
case is not necessary to be dealt with. It is in
view of the issue involved in the present case.
As such, the said part of the arguments is not
being made part of this judgment.

12. Sri Mishra in support of his
contentions has placed reliance on the
following judgment(s) passed in the case(s)
of:-

1. G. Ratna Raj (Dead) by
Legal
Representatives
Vs.
Sri
Muthukumarasamy Permanent Fund
Ltd. and another reported in 2019 (11)
SCC 301.

2. B. Janakiramaiah Chetty Vs.
A.K. Parthasarthi and others reported in
(2003) 5 SCC 641.

3. Sri Pitamber Prasad Vs.
Sohan Lal & others reported in 1956
SCC OnLine All 182.

4. Smt. Saroj and other Vs.
State of U.P. and others reported in
[2018 (138) RD 282].

5. Rame Gowda (dead) by LRs.
Vs. M. Varadappa Naidu (dead) by LRs.
and another reported in (2004) 1 SCC
769.

6. Ram Rattan and others Vs.
State of U.P. reported in (1977) 1 SCC
188.

7. Civil Appeal No. 4257 of 2009
[Poona Ram Vs. Moti Ram (dead) Th.
LRS. And ORS.].

8. Puran Singh and others Vs.
State of Punjab reported in (1975) 4 SCC
518.

9. Electrosteel Castings Limited
Vs. UV Asset Reconstruction Company
6 All. Nanku & Ors. Vs. State of U.P. & Ors.
845
Limited And Others reported in (2022) 2
SCC 573.

10. My Palace Mutually Aided
Co-operative Society Vs. B. Mahesh and
Others reported in 2022 SCC OnLine SC
1063.

11. M.S. Khalsa Vs. Chiranji
Lal reported in 1975 SCC OnLine All
364.

13. To the view of this Court,
reference to the following judgments would
be sufficient as the same are on the issue
raised/involved in the instant case, which is
based upon explanation to Rule 2 of Order
17 CPC.

(i) G. Ratna Raj (Dead) by
Legal
Representatives
Vs.
Sri
Muthukumarasamy Permanent Fund
Ltd. and another reported in 2019 (11)
SCC 301.

(ii) Sri Pitamber Prasad Vs.
Sohan Lal & others reported in 1956
SCC OnLine All 182.

(iii) M.S. Khalsa Vs. Chiranji
Lal reported in 1975 SCC OnLine All
364.

14. Relevant paragraphs of the
judgment passed in the case of G. Ratna
Raj (Dead) (supra) referred by Sri Mishra
are as under:-

"14. In our opinion, the question
involved in these appeals is required to be
decided keeping in view the provisions of
Order 9 Rule 6(1)(a) and Order 17 Rules 2
and 3 of the Code.

"Order 9 Rule 6(1)(a)

6. Procedure when only plaintiff
appears.- (1) Where the plaintiff appears
and the defendant does not appear when
the suit is called on for hearing, then-

(a) When summons duly served.-
If it is proved that the summons was duly
served, the Court may make an order that
the suit be heard ex parte;"

15. Rule 6(1)(a) provides that
where the plaintiff appears and the
defendant does not appear when the suit is
called on for hearing, then if the summons
is held duly served on the defendant, the
Court may make an order that the suit be
heard ex parte.

16. Order 17 Rules 2 and 3 read
as under:

Order 17 Rules 2 and 3

2. Procedure if parties fail to
appear on 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 9 or make such other
order as it thinks fit.

Explanation.-Where
the
evidence or a substantial portion of the
evidence of any party has already been
recorded and such party fails to appear on
any day to which the hearing of the suit is
adjourned, the Court may, in its discretion,
proceed with the case as if such party were
present.

3. Court
may
proceed
notwithstanding either party fails to
produce evidence, etc.- Where any party
to a suit to whom time has been granted
846 INDIAN LAW REPORTS ALLAHABAD SERIES
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-

(a) if the parties are present,
proceed to decide the suit forthwith; or

(b) if the parties are, or any of
them is, absent, proceed under Rule 2."

17. Order 17 Rule 2 of the Code
provides that 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 9 or make such other order as it
thinks fit.

18. The Explanation appended to
Order 17 Rule 2 of the Code provides that
where the evidence or a substantial portion
of the evidence of any party has already
been recorded and such party fails to
appear on any day to which the hearing of
the suit is adjourned, the court may, in its
discretion, proceed with the case as if such
party was present.

20. The scope of Order 17 Rule 2
and Order 17 Rule 3 of the Code came up
for consideration before this Court in B.
Janakiramaiah
Chetty v. A.K.
Parthasarthi [B.
Janakiramaiah
Chetty v. A.K. Parthasarthi, (2003) 5 SCC
641] wherein Arijit Pasayat, J., speaking
for the Bench held in paras 7 to 10 as
under : (SCC pp. 645-46)

"7. In order to determine whether
the remedy under Order 9 is lost or not
what is necessary to be seen is whether in
the first instance the Court had resorted to
the Explanation of Rule 2.

8. The Explanation permits the
court in its discretion to proceed with a
case where substantial portion of evidence
of any party has already been recorded and
such party fails to appear on any day to
which the hearing of the suit is adjourned.
As the provision itself shows, discretionary
power given to the court is to be exercised
in a given circumstance. For application of
the provision, the court has to satisfy itself
that : (a) substantial portion of the evidence
of any party has been already recorded; (b)
such party has failed to appear on any day;
and (c) the day is one to which the hearing
of the suit is adjourned. Rule 2 permits the
court to adopt any of the modes provided in
Order 9 or to make such order as he thinks
fit when on any day to which the hearing of
the suit is adjourned, the parties or any of
them fail to appear. The Explanation is in
the nature of an exception to the general
power given under the rule, conferring
discretion on the court to act under the
specified circumstance i.e. where evidence
or a substantial portion of evidence of any
party has been already recorded and such
party fails to appear on the date to which
hearing of the suit has been adjourned. If
such is the factual situation, the court may
in its discretion deem as if such party was
present. Under Order 9 Rule 3 the court
may make an order directing that the suit
be dismissed when neither party appears
when the suit is called on for hearing.
There are other provisions for dismissal of
the suit contained in Rules 2, 6 and 8. We
are primarily concerned with a situation
covered by Rule 6. The crucial words in the
Explanation are "proceed with the case".
Therefore, on the facts it has to be seen in
each case as to whether the Explanation
was applied by the court or not.
6 All. Nanku & Ors. Vs. State of U.P. & Ors.
847

9. In Rule 2, the expression used
is "make such order as it thinks fit", as an
alternative to adopting one of the modes
directed in that behalf by Order 9. Under
Order 17 Rule 3(b), the only course open to
the court is to proceed under Rule 2, when
a party is absent. Explanation thereto gives
a discretion to the court to proceed under
Rule 3 even if a party is absent. But such a
course can be adopted only when the
absentee party has already led evidence or a
substantial part thereof. If the position is
not so, the court has no option but to
proceed as provided in Rule 2. Rules 2 and
3 operate in different and distinct sets of
circumstances. Rule 2 applies when an
adjournment has been generally granted
and not for any special purpose. On the
other hand, Rule 3 operates where the
adjournment has been given for one of the
purposes mentioned in the Rule. While
Rule 2 speaks of disposal of the suit in one
of the specified modes, Rule 3 empowers
the court to decide the suit forthwith. The
basic distinction between the two Rules,
however, is that in the former, any party
has failed to appear at the hearing, while in
the latter the party though present has
committed any one or more of the
enumerated defaults. Combined effect of
the Explanation to Rule 2 and Rule 3 is that
a discretion has been conferred on the
court. The power conferred is permissive
and not mandatory. The Explanation is in
the nature of a deeming provision, when
under given circumstances, the absentee
party is deemed to be present.

10. The crucial expression in the
Explanation is 'where the evidence or a
substantial portion of the evidence of a
party'. There is a positive purpose in this
legislative expression. It obviously means
that the evidence on record is sufficient to
substantiate the absentee party's stand and
for disposal of the suit. The absentee party
is deemed to be present for this obvious
purpose. The court while acting under the
Explanation may proceed with the case if
that prima facie is the position. The court
has to be satisfied on the facts of each case
about this requisite aspect. It would be also
imperative for the court to record its
satisfaction in that perspective. It cannot be
said that the requirement of substantial
portion of the evidence or the evidence
having
been
led
for
applying
the
Explanation is without any purpose. If the
evidence on record is sufficient for disposal
of the suit, there is no need for adjourning
the suit or deferring the decision.""

15. Relevant paragraphs of the
judgment passed in the case of Sri
Pitamber Prasad (supra) referred by Sri
Mishra, on reproduction, read as under:-

"3. On a consideration of the case
law and the relevant provisions of the Code
of Civil Procedure it appears to us that the
contention of the learned counsel for the
respondent is correct. In all cases in which
in the absence of one of the parties a final
order has been passed against him in a case
on an adjourned date, there are always two
questions to be considered:

(1)
What
was
the
Court
empowered to do-to proceed under O. IX
or to decide on merits?

(2) What has the Court actually
done- has it proceeded under Order IX or
decided on merits

4. First as to the power of the
Court.

5. Order XVII of the Code of
Civil Procedure refers to adjournments.
848 INDIAN LAW REPORTS ALLAHABAD SERIES
Rule 1 authorises the court at any stage of
the suit to adjourn the case from time to
time if sufficient cause is shown. Rule 2 as
amended by this Court and as it stands at
present is as follows:-

"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.
Where the evidence, or a substantial
portion of the evidence, of any party has
already been recorded, and such party fails
to appear on such day, the Court may in its
discretion proceed with the case as if such
party were present, and may dispose of it
on the merits.

Explanation:-"No party shall be
deemed to have failed to appear if he is
either present or is represented in court by
an agent or pleader, though engaged for the
purpose of making an application."

6. Rule 2, therefore, deals with a
case in which one of the parties in fact fails
to appear on an adjourned hearing. If no
evidence, or a substantial portion of the
evidence of the absent party has been
recorded then the court may pass any one
of two orders, i.e., (a) if the plaintiff is
absent, dismiss the suit for default under O.
IX, Rule 8 and if the defendant is absent,
decree the suit ex parte under Order IX,
Rules 6, 11 or 12, or (b) it may make such
other order as it thinks fit, i.e., adjourn
case.

7. If, however, evidence or a
substantial portion of the evidence of a
party has been recorded and such party fails
to appear on the date fixed, the court may
proceed to decide the case on merits, even
though the party is absent, or it may pass
any of the orders mentioned above, i.e. an
order under O. IX, or an order of
adjournment.

8. The explanation states the
circumstances under which a party is not to
be deemed to have failed to appear. If the
case falls under the Explanation the party
concerned cannot be considered to be
absent, and no order under O. IX can be
passed, and the court may either adjourn
the case or decide it on merits.

9. Rule 3 as originally enacted by
the Legislature was as follows:

"Where, in a case to which Rule 2
does not apply, 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."

10. This was amended by the
Allahabad High Court by notification No.
6324/35(a) dated December 2, 1926 to read
as follows:-

"Where any party to a suit, to
whom time has been granted, fails without
reasonable excuse, to produce his evidence,
or to cause the attendance of his witnesses,
or to comply with any previous order, or to
perform any other act necessary to the
further progress of the suit, for which time
has been allowed, the Court may, whether
such party is present or not, proceed to
decide the suit on the merits."

11. As amended, therefore, a suit
could be decided on the merits under this
6 All. Nanku & Ors. Vs. State of U.P. & Ors.
849
rule even though the party was absent. By
an
amendment
dated
1-7-1944
this
amendment was cancelled by the Court and
the original rule as enacted by the
Legislature
was
restored.
When
this
original rule was restored it was held in one
case by a Division Bench of this Court
(see Qudrutullah v. Md. Karim Khan11),
chat this rule did not apply when a party to
whom time had been granted was absent
and that it applied only when the party
concerned
was
present.
But
in Sri
Kishen v. Radha Kishen2 another Division
Bench held that the rule could apply even
when the party concerned was absent
provided that the conditions laid down in
the rule were satisfied. This conflict of
opinion was however avoided by a later
amendment of the rule made in the year 1953
by which it was made clear that the rule did
not apply when the party concerned was
absent. Thus as Rule 3 stands at present in
this Court it can apply only when the party
concerned is present on the adjourned date or
is deemed to be present under the explanation
to Rule 2 and he fails to do things for which
the adjournment was granted to him and in
such a case the court may decide the case on
the merits or adjourn it but has no power to
pass an order under O. 9.

12. There is a difference between
dismissing or decreeing the suit under O. IX
and decreeing or dismissing the suit on
merits. In the former case, an application for
restoration of the suit or for setting aside
the ex parte decree lies to the court which
passed the order. In the latter case, no such
application can be made and the aggrieved
party must proceed either by means of an
application for review or by means of an
appeal to a higher Court."

16. Relevant paragraphs of the
judgment passed in the case of M.S. Khalsa
(supra), as indicated by Sri Mishra, are as
under:-

"51. The explanation added by
this Court, by a fiction, makes a party
present (where his counsel makes an
adjournment application). When a party is
deemed to be present, the same position
follows as when he is actually present but
does not participate in the hearing. Since he
is present, the Court cannot proceed ex
parte. The hearing will naturally be on
merits and if the suit is decided on that day,
the decree will be on merits, which cannot
be set aside on an application under Order
IX, Rule 9 or 13, C.P.C.

77. Order IX, Rule 13, authorises
the defendant to apply to the court by
which the decree was passed for an order to
set it aside "in any case in which a decree is
passed ex
parte against
a
defendant".
Order IX, Rule 6(1)(a) entitles the court to
proceed ex parte where the plaintiff appears
and the defendant does not appear when the
suit is called on for hearing."

17. In the above referred judgments of
this Court, Rule 2 of Order 17 CPC as
amended by this Court was also taken note
of.

18. Based upon the aforesaid
judgment, Sri Mishra also stated that where
the evidence or substantial portion of
evidence of a party has been recorded and
such party fails to appear on the date to
which the hearing of the suit has been
adjourned, the Court may in its discretion
proceed with the case as if such party was
present. In the instant case, sufficient
evidence of the defendant-Gaon Sabha was
recorded and being so, it is presumed that
the party concerned was present before the
Court and was having due knowledge of
850 INDIAN LAW REPORTS ALLAHABAD SERIES
the proceedings and for this reason, the
application preferred under Order 9 Rule
13 CPC was not maintainable.

19. He further submitted that
explanation to Rule 2 of Order 17 added by
this Court, by a fiction, makes a party
present (where his counsel makes an
adjournment application). When a party is
deemed to be present, the same position
follows as when he is actually present but
does not participate in the hearing. Since he
is present, the Court cannot proceed ex
parte. The hearing will naturally be on
merits and if the suit is decided on that day,
the decree will be on merits, which cannot
be set aside on an application under Order
IX, Rule 9 or 13, C.P.C. and then in that
eventuality,
the
judgment
would
be
appealable and being so, an application for
setting aside the judgment by calling it an
ex-parte
judgment
would
not
be
maintainable.

20. He further submitted that the
application under Order 9 Rule 13 CPC
would be maintainable only if the concerned
party satisfies the Court the summon was not
duly served and on account of the same, he
failed to appear on the date fixed or that he
was prevented by any sufficient cause from
appearing when the suit was called on for
hearing. As such, this case would not be
covered under Order 9 Rule 13 CPC. It has
been indicated by the Hon'ble Apex Court
that for the purposes of making an application
under Order 9 Rule 13 CPC, the concerned
has to show the sufficient cause of nonappearance. In the instant case, the witness of
defendant had appeared and she was duly
examined and also cross examined, thus, the
present case would fall under explanation to
Rule 2 of Order 17 CPC. In this view of the
matter, the present petition is liable to be
allowed and the orders impugned are liable to
be set aside.

21. Opposing the present petition, Sri
Hemant Kumar Pandey, learned State
Counsel and Sri Pankaj Gupta, learned
Counsel
appearing
for
opposite
party
No.7/Gaon Sabha concerned stated that the
application under Order 9 Rule 13 CPC was
maintainable as no notice was served upon
the Gaon Sabha concerned as also on the
State of U.P., after transfer of the case from
the revenue Court of S.D.O., Mahsi to Extra
Officer- Ist, Bahraich.

22. It is also stated from the side
opposite that the case was initially filed in the
Court of A.S.D.O.(K) and thereafter on
several times, it was transferred. On some
occasions, the notice was served and on
other, it was not served. However, after being
transferred from the revenue Court of S.D.O.,
Mahsi, no notice was served on the Gaon
Sabha or the State of U.P. indicating that now
the case would proceed in the court of Extra
Officer-
Ist,
Bahraich.
As
such,
the
application was maintainable.

23. It is also submitted that
sufficient cause on the date of nonappearance has to be shown and as in the
present case, no notice was served and on
coming to know about the ex-parte final
order dated 31.05.1995, an application
was preferred under Order 9 Rule 13 CPC
through DGC, Revenue, Bahraich for
restoration of the case and hearing the
case on merits. As such the application
was well within the time.