judgement:
Special Leave Petition (Civil) No. 5665 of 1986 From the Judgment and Order dated 17.1.1986 of the Madhya Pradesh High Court in Misc.
Petition No. 188 of 1986.
B.P. Singh and Ranjit Kumar for the Petitioner.
The Order of the Court was delivered by VENKATARAMIAH, J.
On the expiry of the period of a permit : to run a stage carriage on the route Jashpurnagar Ambikapur issued under the (hereinafter referred to as 'the Act ') in favour of the Janta Transport Co operative Society.
the petitioner and some others filed applications for the grant of the said permit before the Regional Transport Authority, Bilaspur.
The Janta Transport Co operative Society also made an application for the renew al of the permit in its favour.
The application for renewal filed by the Janta Transport Co operative Society was re jected by the Regional Transport Authority on the ground that it was barred by time.
On a consideration of the rela tive merits of the other applicants, namely.
the petitioner and others, the Regional Transport Authority granted the permit in favour of the petitioner.
The said order was challenged in appeal by M/s. Ali Ahmed & Sons respondent No. 3, which was also 203 an applicant for the said permit before the State Transport Appellate Tribunal.
The other unsuccessful applicants also filed separate appeals questioning the grant in favour of the petitioner.
The State Transport Appellate Tribunal heard all the appeals together.
The Tribunal by its order dated 19.9.1985 set aside the order granting the permit in favour of the petitioner on two grounds, namely, that Mohd. Jhahid Khan, the proprietor of the petitioner concern was a prac tising advocate and that he had ceased to carry on the transport business in his individual capacity and granted the permit in favour of M/s. Ali Ahmed & Sons.
Aggrieved by the order of the Tribunal the petitioner filed a writ peti tion in M.P. No. 2945 of 1985 on the file of the High Court of Madhya Pradesh at Jabalpur under Articles 226/227 of the Constitution of India.
That petition was taken up for hear ing on 4.10.1985 by the High Court.
On that day the High Court passed the following order: "Shri Y.S. Dharmadhikari, learned counsel for the petitioner seeks permission to withdraw the petition.
He is permitted to do so.
The petition is dismissed as withdrawn." Later on the petitioner again filed another writ peti tion before the High Court in M.P. No. 188 of 1986.
That petition came up for hearing on 17.1.1986.
At the conclusion of the hearing the High Court passed the following order: "Shri P.R. Bhave for the petitioner heard on admission.
This writ petition is directed against the order of the State Transport Appellate Tribu nal setting aside the grant in favour of the petitioner, and instead giving the permit.
to the respondent No. 3.
The petitioner earlier filed writ petition No. M.P. No. 2945/85 against the impugned order which was withdrawn on 4.10.1985.
No second writ petition lies against the same order.
The earlier petition was not withdrawn with permission to file a fresh petition.
Besides, we do not find any merit in this petition.
The Appellate Tribunal has granted the permit to the respondent No. 3 as he has been found superior to the petition er.
Besides, he being a practising lawyer could not be doing the transport business.
Similar petition of other operators has al ready been dismissed by this Court.
Accordingly, the petition is dismissed sum marily.
204 Aggrieved by the above order rejecting the writ petition at the stage of admission, the petitioner has filed the above special leave petition requesting the Court to grant the special leave to prefer an appeal against the order of the High Court.
The main contention urged before this Court by the learned counsel for the petitioner is that the High Court was in error in rejecting the writ petition out of which this case arises, on the ground that the petitioner had withdrawn the earlier writ petition in which he had ques tioned the order passed by the Tribunal on 4.10.
1985 with out the permission of the High Court to file a fresh peti tion.
It is urged by the learned counsel that since the High Court had not decided the earlier petition on merits but only had permitted the petitioner to withdraw the petition, the withdrawal of the said earlier petition could not have been treated as a bar to the subsequent writ petition.
In this case we are called upon to consider the effect of the withdrawal of the writ petition filed under Articles 226/227 of the Constitution of India without the permission of the High Court to file a fresh petition.
The provisions of the Code of Civil Procedure.
1908 (hereinafter referred to as 'the Code ') are not in terms applicable to the writ proceedings although the procedure prescribed therein as far as it can be made applicable is followed by the High Court in disposing of the writ petitions.
Rule 1 of Order XXIII of the Code provides for the withdrawal of a suit and the consequences of such withdrawal.
Prior to its amendment by Act 104 of 1976, rule 1 of Order XXIII of the Code provided for two kinds of withdrawal of a suit.
namely, (i) absolute withdrawal, and (ii) withdrawal with the permission of the Court to institute a fresh suit on the same cause of action.
The first category of withdrawal was governed by sub rule (1) thereof as it stood then, which provided that at any time after the institution of a suit the plaintiff might, as against all or any of the defendants 'withdraw ' his suit or abandon a part of his claim.
The second category was gov erned by sub rule (2) thereof which provided that where the Court was satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there were sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim.
it might, on such terms as it thought fit, grant the plaintiff permission to withdraw from such suit or abandon a part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.
Sub rule (3) of the former rule 1 of order XXIII of the Code provided that where the plaintiff withdrew from a suit or abandoned a part of a claim without the permission referred to in 205 sub rule (2) he would be liable to.
such costs as the Court might award and would be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
Since it was considered that the use of the word 'withdrawal ' in relation to both the categories of withdraw als led to confusion, the rule was amended to avoid such confusion.
The relevant part of rule 1 of Order XXIII of the Code now reads thus: "Rule 1.
Withdrawal of suit or abandonment of part of claim (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: **** **** **** (3) Where the Court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.
(4) Where the plaintiff (a) abandons any suit or part of claim under sub rule (1), or (b) withdraws from a suit or part of a daim without the permission referred to in sub rule (3), he shall be liable for such costs as the Court may award and shall be precluded from insti tuting any fresh suit in respect of such subject matter or such part of the claim.
" It may be noted that while in sub rule (1) of the former rule 1 of Order XXIII of the Code the words 'withdraw his suit ' had been used, in sub rule (1) of the new rule 1 of Order XXIII of the Code, the words 'abandon his suit ' are used.
The new sub rule (1) is applicable to a case 206 where the Court does not accord permission to withdraw from a suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.
In the new sub rule (3) which corre sponds to the former sub rule (2) practically no change is made and under that sub rule the Court is empowered to grant subject to the conditions mentioned therein permission to withdraw from a suit with liberty to institute a fresh suit in respect of the subject matter of such suit.
Sub rule (4) of the new rule 1 of Order XXIII of the Code provides that where the plaintiff abandons any suit or part of claim under sub rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub rule (3), he would be liable for such costs as the Court might award and would also be precluded from instituting any fresh suit in respect of such subjectmatter or such part of the claim.
The Code as it now stands thus makes a distinction between 'abandonment ' of a suit and 'withdrawal ' from a suit with permission to file a fresh suit.
It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in subrule (3) of rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
The principle underlying rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit.
Invito benificium non datur.
The law confers upon a man no rights or benefits which he does not desire.
Whoever waives, abandons or disclaims a right will loose it.
In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub rule (3) of rule 1 of Order XXIII.
The principle underlying the above rule is rounded on public policy, but it is not the same as the rule of res judicata contained in section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or sub stantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
The rule of res judicata 207 applies to a case where the suit or an issue has already been heard and finally decided by a Court.
In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudi cation of a suit.
or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub rule (4) of rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub rule (3) in order to prevent the abuse of the process of the Court.
The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying rule 1 of Order XXIII of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution of India also.
It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seek ing permission to institute a fresh writ petition.
A Court which is unwilling to admit the petition would not ordinari ly grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition.
It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ peti tion because he cannot be considered as a party aggrieved by the order passed by the High Court.
He may as stated in Daryao and Ors.
vs The State of U.P. and Ors., in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Article 32 of the Constitution of India because in such a case there has been no decision on the merits by the High Court.
The relevant observation of this Court in Daryao 's case (supra) is to be found at page 593 and it is as follows: "If the petition is dismissed as with drawn it cannot be a bar to a subsequent petition under article 32, because in such a case there has been no decision on the merits by the Court.
We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other." The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a 208 fresh petition can file a fresh writ petition in the High Court under that Article.
On this point the decision in Daryao 's case (supra) is of no assistance.
But we are of the view that the principle underlying rule 1 of Order XXIII of the Code should be extended in the interests of administra tion of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above.
It would also discourage the litigant from indulging in bench hunting tactics.
In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again.
While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdraw al does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission.
In the instant case the High Court was fight in holding that a fresh writ petition was not maintainable before it in respect of the same subject matter since the earlier writ petition had been withdrawn without permission to file a fresh petition.
We, however.
make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petition er prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental fight guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether.
We however leave this question open.
Even on merits we do not find any ground to reverse the decision of the High Court.
In the result we dismiss the special leave petition.
P.S.S. Petition dismissed.

summary/full:
Sub rule (1) of rule 1, Order XXIII of the Code of Civil Procedure ) permits a plaintiff to abandon his suit against all or any of the defendants at any time after the institu tion of the suit; sub rule (3) lays down that where the court is satisfied (a) that a suit must fall by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit, it may grant permission to him to withdraw from such suit with liberty to institute a fresh suit, while sub rule (4) provides that where the plaintiff abandons any suit under sub rule (1) or withdraws from it without the permission referred to in sub rule (3), he shall be precluded from instituting any fresh suit in respect of such subject matter.
The provisions of the Code of Civil Procedure, 1908 are not in terms applicable to the writ proceedings.
However, the procedure prescribed, therein, as far as it can be made applicable, is followed by the High Court in disposing of the writ petitions.
The petitioner withdrew its earlier writ petition filed under article 226/227 of the Constitution without permission of the Court to file a fresh petition.
Later on it filed anoth er writ petition against the order assailed in the first petition.
The High Court summarily dismissed it taking the view that no second writ petition lies against the same order where the earlier petition was not withdrawn with permission to file a fresh petition.
In this petition for special leave it was contended that since the 201 High Court had not decided the earlier petition on merits but had only permitted the petitioner to withdraw it the withdrawal could not be treated as a bar to the subsequent writ petition.
On the question: Whether a petitioner after withdrawing a writ petition filed by him in the High Court under article 226/227 of the Constitution without permission to institute a fresh petition can file a fresh writ petition in the High Court under these Articles, and whether it would advance the cause of justice if the principle underlying rule 1, Order XXIII of the Code of Civil Procedure is adopted in respect of the writ petitions under these Articles.
Dismissing the special leave petition, the Court.
HELD:1.
The High Court was right in holding that a fresh petition was not maintainable before it in respect of the same subject matter since the earlier writ petition had been withdrawn without permission to file a fresh petition.
[208D] 2. 1 The principle underlying rule 1, Order XXIII of the Code of Civil Procedure that when a plaintiff once insti tutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject matter again after abandoning the earlier suit or by withdrawing it without the permission Of the Court to file fresh suit.
should be ex tended in the interest of justice on the ground of public policy to cases of withdrawal of writ petition also.
[206D, 208A] 2.2 Invito beneficium non datur.
The law confers upon a man no rights or benefits which he does not desire.
Whoever waives.
abandons or disclaims a right would loose it.
[206E] 2.3 Where a petitioner withdraws a writ petition filed by him in the High Court under article 226/227 without permis sion to institute a fresh petition he should be deemed to have abandoned the remedy under these Articles in respect of the cause of action relied on in the writ petition and barred from filing a fresh petition.
[207H,208C] 3.1 The principle embodied in rule 1, Order XXIII of the Code is rounded on public policy.
It is not the same as the rule of res judicata contained in section II of the Code, which applies to a case where the suit or an issue has already been heard and finally decided by a Court.
In the case of abandonment or withdrawal of a suit, there is no prior adjudica 202 tion of a suit nor an issue is involved.
The plaintiff is precluded from instituting any fresh suit in respect of the same subject matter to prevent the abuse of the process of the Court.
[206G, H, D, 207B] 3.2 Such withdrawal would not bar other remedies like a suit or a petition under article 32 of the Constitution before the Supreme Court in a case involving the question of en forcement of fundamental rights since such withdrawal does not amount to res judicata and there has been no decision on the merits by the High Court.
[208C, 207E] Daryao and Ors.
vs The State of U.P. and Ors., referred to.
[A petition involving the personal liberty of an indi vidual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under article 21 of the Constitu tion stands on a different footing altogether.
This question is left open.] [208E]


judgement:
: Civil Appeal No. 329 of 1956.
Appeal by special leave from the decision dated April 29, 1954, of the Labour Appellate Tribunal, Lucknow, in Appeal No. III 97 of 1953 arising out of the Award dated January 24, 1953, made by the 57 444 Central Government Industrial Tribunal, Calcutta, in Appli cation No. 106 of 1952.
B.R. L. Iyengar and B. C. Misra, for the appellant.
Veda Vyasa, K. L. Mehta and I. section Sawhney, for the respond ent. 1957.
September 17.
The following Judgment of the Court was delivered by BHAGWATIJ.
This appeal with special leave is directed against the decision of the Labour Appellate Tribunal of India, Lucknow, confirming, on appeal, the award made by the Central Government Industrial Tribunal, Calcutta, in a dispute between the appellant and the respondent.
The appellant took up service with the respondent then knownm the Bharat Bank Ltd., with effect from July 1, 1944, as an Inspector at Bombay in the grade of Rs. 170 10 200 20 400 and was given three increments when the first increment fell due as from October 1, 1945.
He was also given promo tions on October 1, 1946, and on October 1, 1947, and was drawing Rs. 240 per month plus a special allowance for a servant of Rs. 30 per month at the time when he was dis charged by the respondent on August 5, 1949, on the plea that he had become surplus to the requirement of the re spondent.
The Government of India, Ministry of Labour had by Notification No. LR. 2 (273), dated February 21, 1950, referred for adjudication to the Central Government Indus trial Tribunal at Calcutta the disputes pending between the various banks and their employees, and the appellant 's case came up for hearing in the course of those proceedings before the Tribunal which held on December 5, 1950, that the order of discharge of the appellant was illegal and that the respondent should take him back in service as well as pay the appellant his arrears of salary and allowances from the date of discharge.
This direction was to be carried out within a month of the date of the publication of the award which was actually published in the Gazette of India (Part II, Section 3, page 1143) of December 30, 1950.
445 On January 30, 1951, the respondent preferred an appeal against the said order to the Labour Appellate Tribunal, Calcutta, sitting at Allahabad, which by its decision dated September 25, 1951, upheld the directions given by the Industrial Tribunal and dismissed the appeal.
The respond ent failed and neglected to implement the decision of the Labour Appellate Tribunal within the prescribed period in spite of the appellant 's intimating to the respondent by his letter dated October 10, 1951, at its address at 37, Faiz Bazar, Delhi, that he was at Bombay and that he would like to know where he should report himself for duty.
By this letter he also claimed arrears of salary and allowances which had not till then been paid to him, apart from the payments made under the interim orders of the Labour Appel late Tribunal.
The respondent did not send any reply to the said letter with the result that the appellant served on the respondent a notice on November 5, 1951, through his solici tors intimating that the respondent had failed and neglected to reinstate the appellant inspite of his letter dated October 10, 1951, requesting it to do so.
The appellant further intimated to the respondent that by reason of its failure to reinstate him within the prescribed period the respondent had committed a breach of the directions of the Labour Appellate Tribunal and the appellant had therefore become entitled to compensation for the same.
The appellant therefore called upon the respondent to pay to him a sum of Rs. 32,388 as the amount of compensation to which he was entitled on account of the pay he would have earned till his 55th year, i.e., upto May 4, 1960, Provident Fund contribu tion on pay at 6 1/4 % as allowed by the Rules of the Bank and gratuity for about 16 years from July 1, 1944, to May 4, 1960, at month 's pay per year of service, adjustment being made at 6% per annum for payment, if made as demanded.
This amount was exclusive of other claims against the respondent such as amounts due to him under the order dated February 17, 1951, of the Labour Appellate Tribunal of India, Allaha bad, arrears of salary etc.
, withheld by the respondent.
A, , the respondent failed 446 and neglected to send any reply to the said notice or to comply with the requisitions therein contained, the appel lant made an application to the Government of India on February 22, 1952, for recovery of money under section 20(1) of the Industrial Disputes (Appellate Tribunal) Act, 1950 (hereinafter referred to as " the Act ") to which he re ceived a reply on May 13, 1952, stating that an application for recovery of money under that section could be enter tained only if it was confined to the arrears of salary and allowances from the date of his discharge upto the date of the application, and advising him to submit a revised appli cation accordingly.
A suggestion was also made in that letter that the appellant might approach the Industrial Tribunal, Calcutta, under s.20(2) of the Act for a computa tion in terms of money of the benefit of reinstatement, as it was only when a definite sum had been so determined that action for recovery under section 20(1) of the Act could be taken by the Government.
It appears that in the meantime the respondent had trans ferred its banking business under an agreement with the Punjab National Bank Ltd., and had also changed its name to Bharat Nidhi Ltd.
By its letter dated April 3, 1952, the respondent in its new name of the Bharat Nidhi Ltd., ad dressed a letter to the appellant stating that due to the transfer of its liabilities and equivalent assets to the Punjab National Bank Ltd., and the closure of all its branches in India, the appellant was surplus to its require ments.
It therefore purported to give to the appellant two months ' notice of its intention to terminate the said award and his services in terms of section 19(6) of the .
The letter further proceeded to state that the appellant had not so far reported himself for duty at its office at Delhi which was the only office that it had in India since March 10, 1951, and which was its Head Office and registered office before that date.
The appel lant replied by his Advocate 's letter dated April 16, 1952, pointing out that in spite of his letter dated October 10, 1951, addressed to the respondent the latter had not in formed him as 447 to when and where he should report for duty nor had it cared to respond to the same.
He intimated that he had already made an application to the Government of India under section 20(1) of the Act and was awaiting the result thereof.
The letter dated April 3, 1952, addressed by the respondent to the appellant was under the circumstances characterized by the appellant as evidently addressed to him with some ulte rior motive.
The respondent by its letter dated May 10, 1952, addressed to the appellant reiterated that in spite of its asking the appellant to do so, he had failed to join its office.
It stated that by its letter dated April 3, 1952, it had clearly asked the appellant to join at Delhi but that the appellant had failed to do so and the conduct of the appellant clearly amounted to evasion of its instructions and absence from duty.
It also stated that the notice dated April 3, 1952, had effect from the date of receipt thereof by the appellant, viz., April 9, 1952.
No further reply was made by the appellant to the aforesaid letter but it appears that on June 28, 1952) the respondent addressed a letter to the Under Secretary, Government of India, New Delhi, in answer to a communication dated June 12, 1952, addressed by the latter to it that the appellant had already been paid arrears of his pay and allowances awarded by the Tribunal, that he was further asked by it to resume duty which he had failed to do, and, in the circumstances be was being consid ered absent from duty.
A copy of the letter dated May 10, 1952, addressed by it to the appellant as also a copy of the letter of the same date addressed to the Chief Labour Com missioner (Central), New Delhi, were enclosed therewith for information.
Nothing further transpired and on October 8, 1952, the appellant filed the petition under section 20(2) of the Act for computation of the money value of the benefit of reinstatement because of non implementation of the direc tions contained in the award by the respondent.
He claimed a sum of Rs. 47,738 computed in the mariner indicated in annexure 'D ' to that petition.
The respondent filed its written statement on December 4, 1952, wherein the only plea taken was 448 that there was a flagrant violation by the appellant of its instructions to join duty and that thereby the appellant had forfeited his right to claim reinstatement and all benefits flowing therefrom.
It further stated that without prejudice and with a view to close his case it had offered him salary upto June 19, 1952, by its letter dated November 15, 1952, under intimation to the Conciliation Officer, Central Gov ernment, New Delhi, but the appellant had not replied to the same.
The respondent further contended that the award in question was in force for only one year under section 19(3) of the , and that the same was therefore no longer in force and the respondent had already terminated the same.
The claim of the appellant was there fore illegal and preposterous and the respondent prayed that the petition be dismissed with costs.
The petition came up for hearing before the Central Govern ment Industrial Tribunal at Calcutta and it was observed that there were three aspects of the case, viz., (i) whether the respondent refused to implement the award or the subse quent decision of the Labour Appellate Tribunal by not taking the appellant in service as directed by the Tribunals (as urged on behalf of the appellant); (ii) whether it was the petitioner who failed to resume his duty in spite of having been asked to do so and thereby forfeited the right conferred upon him in terms of the award (as urged by the respondent); (iii) To what relief or compensation in lieu of reinstatement the petitioner was entitled in the peculiar circumstances in which Bharat Bank ceased functioning soon after the award of December, 1950, and in the light of various other applications of other employees in which only retrenchment relief was awarded.
On the first two questions the Industrial Tribunal held in favour of the appellant and then proceeded to consider the third question, viz., as to what relief or compensation in lieu of reinstatement the appellant was entitled to.
After discussing the legal position it came to the conclusion that the measure of damages was that laid down under section 95 of.
the Code of Civil Procedure which put it at a figure 449 of Rs. 1,000.
It therefore assessed the value of rein.
statement asked for at the sum of Rs. 1,000 and awarded that sum under section 20(2) of the Act.
The other prayers of the appellant regarding arrears were not dealt with by the ' Industrial Tribunal in so far as they were the subject matter of the application under section 20(1) of the Act which the appellant had already made to the Central Government.
The appellant being, aggrieved by the award of the Industri al Tribunal carried an appeal to the Labour Appellate Tribu nal of India at Lucknow.
A preliminary objection was taken by the respondent before the Labour Appellate Tribunal that the appeal was not competent under the provisions of section 7 of the Act.
This objection found favour with the Labour Appel late Tribunal and holding that no substantial question of law was raised by the award it dismissed the appeal as incompetent.
The appellant applied for and obtained special leave to appeal against this decision of the Labour Appel late Tribunal and that is bow the present appeal is before us.
The two questions of fact, viz., (i) whether the respondent refused to implement the award by not taking .the appellant back in service and (ii) whether it was the appellant who had failed to resume his duty in spite of having been asked to do so and thereby forfeited the right conferred upon him in terms of the award are concluded by the findings arrived at by the Industrial Tribunal after due consideration of the correspondence which passed between the parties.
We also have perused the said correspondence and we see no reason to disturb those findings.
If therefore the appellant was ready and willing to be reinstated in the service of the respondent and was not guilty of any default in the matter of reporting himself for duty, the only question that re mains to be considered by us here is what is the amount at which this benefit of reinstatement which was awarded to the appellant should be computed within the meaning of section 20(2) of the Act.
That was the only scope of the enquiry before the Industrial Tribunal and we have to determine what is the correct method of such computation.
450 Section 20(2) of the Act reads as follows: Section 20.
Recovery of money due from an employer under an award or decision.
(1). . . . . (2)Where any workman is entitled to receive from the empoly er any benefit under an award or decision of an industrial tribunal which is capable of being computed in terms of money, the amount at which such benefit should be computed may, subject to the rules made under this Act, be determined by that industrial tribunal, and the amount so determined may be recovered as provided for in subsection (1).
It may be noted that sub section (1) above referred to provides that: any money due from an employer under any award or decision of an industrial tribunal may be recovered as arrears of land revenue or as a public demand by the appropriate Gov ernment on an application made to it by the person entitled to the money under that award or decision.
The petition of the appellant proceeded on the basis that the benefit of reinstatement which he was entitled to re ceive under the terms of the award was capable of being computed in terms of money and that position was not disput ed by the respondent.
Even though there was no plea by the respondent in its written statement that there were any circumstances which made it impossible for the respondent to reinstate the appellant in its service except the failure of the appellant to resume his duty in spite of his having been asked to do so, the respondent.
was allowed to lead evidence in regard to the transfer of its liabilities and equivalent assets to the Punjab National Bank Ltd., and the closure of its banking business in all of its branches in India in order to show that the respondent was not in default and the value of the benefit of reinstatement in terms of money had thus dwindled into insignificance.
Reliance was placed on the further circumstance that the Punjab National Bank Ltd., was not under any obligation to take into its employ the employees of the respondent, that as a matter of fact only 10% of the employees of the 451 respondent bad been absorbed by the Punjab National Bank Ltd., and in regard to the rest who were not so absorbed the only sums awarded to them by the Industrial Tribunals were salary for the notice month.
and retrenchment compensation.
We are of opinion that these circumstances cannot be availed of by the respondent.
It is no doubt true that the respond ent transferred its liabilities and equivalent assets to the Punjab National Bank Ltd., some time in March 1951.
The correspondence which was carried on between the appellant and the respondent however shows that in spite of such transfer to the Punjab National Bank Ltd., and the change of the name of the respondent from the Bharat Bank Ltd., to Bharat Nidhi Ltd., the respondent never contended that Bharat Nidhi Ltd. was not in a position to reinstate the appellant in its service.
The correspondence proceeded all along on the footing that Bharat Nidhi Ltd., was in a posi tion to reinstate the appellant in its service and as a matter of fact took up the plea that it had invited the appellant to join it at Delhi but that the appellant bad failed and neglected to do so.
Not only in its letter dated May 10, 1952, did the Bharat Nidhi Ltd., state that the appellant 's failure to join it at Delhi amounted to absence from duty but as late as June 28, 1952, in its letter ad dressed to the Under Secretary to the Government of India, New Delhi, it reiterated that the appellant was asked to resume duty which he had failed to do and that in the cir cumstances he was being considered as absent from duty.
It is clear therefore that the Bharat Nidhi Ltd., was all the time insisting that the appellant should join its service at Delhi and never took up the plea that the transfer of its liabilities and equivalent assets to the Punjab National Bank Ltd., and also the possibility of the Punjab National Bank Ltd., not absorbing the appellant in its employ were circumstances available to it by way of defence.
The appel lant having become surplus to its requirement was of course a plea taken by it in the course of the correspondence and by its letter dated April 3, 1952, the Bharat Nidhi Ltd., gave the appellant two months ' notice of its intention to 58 452 terminate the award and service of the appellant.
In this behalf it also relied on the provisions of section 19 (6) of the , but when it came to file its written statement it did not put forward that plea as an answer to the claim of the appellant under section 20(2) of the Act.
We fail to understand therefore how these circum stances could ever have been taken into consideration by the Industrial Tribunal while arriving at the computation in terms of money of the benefit of reinstatement awarded to the appellant under the terms of the award.
Such computa tion has therefore got to be made regardless of those cir cumstances which were put forward by the respondent as a last resort.
The Industrial Tribunal computed the money value of this benefit on the analogy of section 95 of the Code of Civil Proce dure.
It treated the non implementation of the direction in the award made by an Industrial Tribunal on a par with the obtaining of arrest, attachment or injunction on insuffi cient grounds and awarded to the appellant the sum of Rs. 1,000 which it deemed to be a reasonable compensation for the injury caused to him.
Even if the direction given by the Industrial Tribunal in its award be treated as a statu tory obligation imposed on the respondent, this certainly could not be a measure of compensation or damaoes and it was fairly conceded by the learned counsel for the respondent that he was not in a position to support that part of the judgment.
Mr. lyengar who appeared for the appellant before us urged that the computation of the money value of the benefit of reinstatement awarded to the appellant should be made on one or the other of the three bases which he suggested for the purpose, viz., (i) the order of reinstatement should be construed as entitling the appellant to the full tenure of service in accordance with the terms of the original con tract and the appellant should be awarded compensation commensurate with the salary and the benefits which he would have earned during his service with the respondent for the full term of 55 years which was the age of superanntiation; (ii) the non implementation of the direction as 453 to reinstatement should be treated as a breach of contract on the part of the respondent and the appellant should be awarded damages for breach of the contract which would be calculated again on the same, basis; (iii) the non implemen tation should be treated as a breach of a statutory duty and the appellant should be awarded damages for non implementa tion as on a tort committed by the respondent.
The appel lant would in that event be entitled not only to general damages but also special damages by reason of oppressive conduct on the part of the respondent.
The position as it obtains in the ordinary law of master and servant is quite clear.
The master who wrongfully dismisses his servant is bound to pay him such damages as will compensate him for the wrong that he has sustained.
" They are to be assessed by reference to the amount earned in the service wrongfully terminated and the time likely to elapse before the servant obtains another post for which he is fitted.
If the contract expressly provides that it is terminable upon, e.g., a month 's notice, the damages will ordinarily be a month 's wages. . .
No compensa tion can be claimed in respect of the injury done to the servant 's feelings by the circumstances of his dismissal, nor in respect of extra difficulty of finding work resulting from those circumstances.
A servant who has been wrongfully dismissed must use diligence to seek another employment, and the fact that he has been offered a suitable post may be taken into account in assessing the damages." (Chitty on Contracts, 21st Ed., Vol.
(2), p. 559 para.
1040).
If the contract of employment is for a specific term, the servant would in that event be entitled to damages the amount of which would be measured prima facie and subject to the rule of maitigation in the salary of which the master had deprived him.
(Vide Collier vs Sunday Referee Publishing Co., Ltd. (1)).
The servant would then be entitled to the whole of the salary, benefits, etc., which he would have earned had be continued in the employ of the master for the full (1) [1940] 4 All E.R. 237.
454 term of the contract, subject of course to mitigation of damages by way of seeking alternative employment.
Such damages would be recoverable by the servant .for his wrongful dismissal by the master only on the basis of the master having committed a breach of the contract of employ ment.
If, however, the contract is treated as subsisting and a claim is made by the servant for a declaration that he continues in the employ of the master and should be awarded his salary, benefits, etc., on the basis of the continuation of the contract, the servant would be entitled to a declara tion that he continues in the employ of the master and would only be entitled to the payment of salary, benefits, etc., which accrued due to him up to the date of the institution of the suit.
The benefit of reinstatement which is awarded to a workman under the terms of the award does not become a term or condition of the contract between him and the employer.
There are no doubt other reliefs by way of changes in the terms and conditions of employment which when awarded by the appropriate tribunal might be treated as implied terms of the contract between the employer and the workers to whom the award applies and would enure for the benefit of the worker until varied by appropriate legal proceedings.
There is no statutory provision in that behalf contained in the Industrial "Disputes Act, 1947.
But it is interesting to note that in the Industrial Disputes Order, 1951, obtaining in England there is enacted section 10 which runs as follows: Section 10: Award to be implied term of contract: Where an award on a dispute or issue has been made by the Tribunal then as from the date of the award or from such other date, not being earlier than the date on which the dispute or issue to which the award relates first arose, as the Tribu nal may direct, it shall be an implied term of the contract between the employer and workers to whom the award applies that the terms and conditions of employment to be observed under the contract shall be in accordance with the award until varied by agreement between the parties or by a subse quent award of the Tribunal 455 or until different terms and conditions of employment in respect of the workers concerned are settled through the machinery of negotiation or arbitration for the settlement of terms and conditions of employment in, the trade or industry or section of trade or industry or undertaking in which those workers are employed.
Whatever be the position in regard to the terms and condi tions of employment thus varied in accordance with the terms of the award, the benefit of reinstatement awarded to a workman certainly cannot be treated as part of the contract between him and the employer.
The effect of an order of reinstatement is merely to set at nought the order of wrong ful dismissal of the workman by the employer and to rein state him in the service of the employer as if the Contract of employment originally entered into had been contiuning.
The terms and conditions of the contract which obtained when the workman was in the employ of the employer prior to his wrongful dismissal which has been set aside continue to govern the relations between the parties and the workman continues in the employ of the employer under those terms and conditions.
There is no variation of those terms and conditions of the contract.
The only thing which happens is that the workman is reinstated in his old service as before.
The monetary value of the benefits of such reinstatement is therefore to be computed not on the basis of a breach of the contract of employment nor on them basis of a tort alleged to have been committed by the employer by reason of the non implementation of the direction for reinstatement contained in the award.
The analogy of a suit for a declaration that the workman is continuing in the employ of the employer and that he should be paid the safary and benefits, etc., which would have been earned by him up to the date of the institu tion of the suit also does not strictly apply for the simple reason that the workman here is not asking for a declaration that he is still continuing in service on the ground that there was a termination of his service after the award, which termination is void.
What he is asking for is a computation in terms 456 of money of the benefit of reinstatement which was granted to him by the Industrial Tribunal and which the employer did not implement.
The purpose of the enactment of section 20(2) of the Act is not to award to the workman compensation or damages for a breach of contract or a breach of a statutory obligation on the part of the employer.
Any money which is due from an em ployer under the award can by virtue of the provisions of section 20(1) of the Act be recovered by the appropriate Government on an application made to it by the workman.
Where however any benefit which is not expressed in terms of money is awarded to the workman under the terms of the award it will be necessary to compute in terms of money the value of that benefit before the workman can ask the appropriate Govern ment to help him in such recovery.
Section 20 sub section
(2) provides for the computation in terms of money of the value of such benefit and the amount at which such benefit should be computed is to be determined by the Industrial Tribunal to which reference would be made by the appropriate Govern ment for the purpose.
Such computation has relation only to the date from which the reinstatement of the workman has been ordered under the terms of the award and would have to be made by the Industrial Tribunal having regard to all the circumstances of the case.
The Industrial Tribunal would have to take into account the terms and conditions of em ployment, the tenure of service, the possibility of termina tion of the employment at the instance of either party, the possibility of retrenchment by the employer or resignation or retirement by the workman and even of the employer him self ceasing to exist or of the workman being awarded var ious benefits including reinstatement under the terms of future awards by Industrial Tribunals in the event of indus trial disputes arising between the parties in the future.
Even in the case of ordinary contracts 'between master and servant such considerations have been imported by the courts.
The observations of Greer, 457 L.J., in Salt vs Power Plant Co., Ltd. (1) are apposite in this context: " This is the case of a man who had, according to my view, got an engagement which was to last for life, or at any rate for the joint lives of himself and the company, but I think for his life, because, I think there are authorities to the effect that if a company winds up, that is a dismissal of the servants, and they can then prove for damages and get their dividend, whatever it may happen to be.
Fortunately, the company has not been wound up, but in estimating the damages, of course, the tribunal estimating them will have to take into consideration the fact that at any time after June 26, 1935, it might have appeared to the directors that they had good reasons for terminating the plaintiff 's serv ices, reasons connected with his conduct.
The present value of what his salary would be for the rest of his life must also be considered, and there must also be taken into ac count the fact that he is a man who might at any time termi nate his service by his life coming to an end, and other matters with which I need not deal." These and similar considerations would equally be germane in the matter of the computation in terms of money of the value of the benefit of reinstatement which was awarded to the appellant in the case before us.
Turning therefore to the terms and conditions of employment we find that the respondent had enacted bye laws for the employees of Bharat Bank Ltd., which were applicable to the appellant.
Bye law 9 provides that an employee may resign from the service of the respondent by giving one month 's notice.
Bye law 11 provides that the respondent shall have the option to terminate an employee 's service on giving him the same notice as he is required to give to the respondent under rule No. 9 (which can be served even when the employee may be on leave), or by paying him salary for the notice period in lieu of notice, in the absence of an agreement to the contrary, provided that no notice shall be necessary when he is (1) , 325.
458 dismissed on account of misconduct, dishonesty, gross negli gence, insubordination or disregard of any of the standing instructions.
Bye law 13 lays down that every employee is required to retire on attaining the age of 55 years.
He may be retained in service after that age only with the express sanction of the authorities but such extension of service will not exceed more than 2 years at a time.
If regard be had to these terms and conditions, it was possible for the respondent to terminate the service of the appellant by paying him one month 's salary in lieu of no tice.
If there was nothing more the appellant would have been entitled only to that amount as and by way of compensa tion for nonimplementation of the direction for reinstate ment.
There was however a finding recorded by the Industri al Tribunal which made the award dated December 5, 1950, that the respondent had been guilty of unfair labour prac tice and victimization and the ordinary right, which the respondent would have been in a position to exercise, of terminating the service of the appellant on giving him one month 's salary in lieu of notice could not be availed of by the respondent.
On an industrial dispute raised by the appellant on the respondent 's terminating his service at any time in the future, it would be open to the Industrial Tribunal to go into the question whether the termination of the appellant 's service by the respondent was justified and if the Industrial Tribunal came to an adverse conclusion, it would be open to it to reinstate the appellant in the serv ice of the respondent with all back salary, allowances, etc.
Even if the respondent wanted to retrench the appellant, the same considerations would arise with a possible result against the respondent.
On the other hand, there was also a possibility of the respondent being in the right and being entitled to lawfully terminate the service of the appellant in which event of course the appellant would be without any redress whatever.
In computing the money value of the benefit of reinstatement the Industrial Tribunal would also have to take into account the present value of what his salary, benefits, 459 etc ' would be till he attained the age of superannuation and the value of such benefits would have to be computed as from the date when such reinstatement was ordered under the terms of the award.
Having regard to the considerations detailed above it is impossible to compute the money value of this benefit of reinstatement awarded to the appellant with mathematical exactitude and the best that any Tribunal or Court would do under the circumstances would be to make as correct an estimate as is possible bearing of course in mind all the relevant factors pro and con.
We have ourselves devoted very anxious thought to this aspect of the matter and we have come to the conclusion that having regard to all the circumstances of the case it would be reasonable to compute the benefit of reinstatement which was awarded to the appel lant at an amount of Rs. 12,500 (Rupees twelve thousand and five hundred only).
We accordingly allow the appeal and set aside the decision of the Labour Appellate Tribunal of India, Lucknow as well as the award made by the Central Government Industrial Tribunal, Calcutta and award that the appellant shall recov er from the respondent the said sum of Rs. 12,500 (Rupees twelve thousand and five hundred only) being the computation of the money value of the benefit of reinstatement awarded to him under the terms of the award of the Central Govern ment Industrial Tribunal at Calcutta dated December 5, 1950.
The respondent will pay the appellant 's costs of this appeal as well as the proceedings before the Industrial Tribunal and the Labour Appellate Tribunal.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant was in the service of the respondent but sub sequently he was discharged on the plea that he had become surplus 4443 to the requirement of the respondent.
The Industrial Tribu nal found that the respondent had been guilty of unfair labour practice and victimisation and held that the order of discharge was illegal and that he should be reinstated, with arrears of salary and allowances from the date of discharge.
The respondent having failed to implement the award, the appellant filed an application under section 2o(2) of the Industrial Disputes (Appellate Tribunal) Act, 1950, for computation of the money value of the benefit of reinstate ment.
The Industrial Tribunal assessed the value of rein statement at the sum of Rs. 1,000 by adopting the measure of damages as laid down under section 95 of the Code of Civil Procedure.
Under the bye laws framed by the respondent the services of an employee could be terminated on giving one month 's notice.
Held, that the monetary value of the benefit of reinstate ment is to be computed not on the basis of a breach of the contract of employment nor on the basis of a tort alleged to have been committed by the employer by reason of the non implementation of the direction for reinstatement contained in the award.
The computation has to be made by the Indus trial Tribunal having regard to all the.circumstances of the case, such a?, the terms and conditions of employment, the tenure of service, the possibility of termination of the employment at the instance of either party, the possibility of retrenchment by the employer or resignation or retirement by the employee and even of the employer himself ceasing to exist, or of the employee being awarded various benefits including reinstatement under the terms of future awards by Industrial Tribunals in the event of industrial disputes arising between the parties in the future.
The observations of Greer L. J. in Salt vs Power Plant Co., Ltd. , 325, relied on.
In the instant case, having regard to the bye laws, the appellant would have been entitled to only one month 's salary in lieu of notice, as and by way of compensation for non implementation of the direction for reinstatement, but this right could not be availed of by the respondent in view of the finding of the Tribunal that he was guilty of unfair labour practice and victimisation, and a correct estimate of the value of the benefit of reinstatement had to be made bearing in mind all the relevant factors.


judgement:
ivil Appeal No. 2847 of 1986 290 From the Judgment and Order dated 1.8.1986 of the Delhi High Court in F.A.O. No. 146 of 1986.
Soli J. Sorabjee, E.C. Agarwala and Lalit for the Appel lants.
T.S.K. Iyer, B.P. Maheshwari, V.N. Ganpule, S.K. Agniho tri and J. Singh for the Respondent.
The Judgment of the Court was delivered by OZA, J.
This appeal arises as a result of leave granted by this Court against the summary dismissal of the first appeal by the appellant before the High Court of Delhi.
The first appeal was filed against an order passed by Sub Judge 1st Class, Delhi rejecting the review petition filed by the petitioner.
The facts necessary for disposal of this case are that in a suit filed against the present appellant in the Court of Sub Judge 1st Class, Delhi when the matter was fixed for evidence of the defendant as the plaintiff 's evidence was over and defendant present appellant 's evidence was to begin when the case was taken up on 24th January, 1985.
The order sheet of the Court shows that no DW is present and at the request of the counsel of the defendant the case was adjourned to 7th May, 1985.
It is stated that on this date for some reason, the. case was transferred to another board and in the transferee court, the order sheet showed presence of the counsel for parties and it further shows that as the case was received on transfer it was ordered to be put up on 21st August, 1985.
Learned counsel for the appellant disputed the mention in these proceedings about the presence of the counsel of the defendantappellant.
But in any event as it is not impor tant for the decision of this appeal it is not necessary to go into that question.
On 21st, August, 1985 it appears that there was a holi day and therefore the case was put up before the learned Judge on 22nd August, 1985 and it was postponed to 30th October, 1985 for the evidence of the defendant.
On 30th October, 1985 the order sheet showed that the counsel for plaintiff was present but no one was present for the defend ant.
The Court therefore directed the case to be taken up at 1 P.M.
At 1 P.M. again the situation remained the same as it is clear from the order sheet.
It also shows that none of the witnesses for defendant was also present and therefore the Court passed the order: "the case was called but none has appeared on behalf of the defendant and no DWs present.
The evidence of defendant closed.
291 Now to come up for arguments.
" The next date fixed was 1st November, 1985.
On this date also nobody appeared for the defendant and counsel for the plaintiff who was present sought adjournment and the case was adjourned to 8th Novem ber, 1985.
On 8th November, 1985 arguments of the plaintiffs counsel were heard and as none was present for the defendant the case was fixed for judgment on 11th November, 1985.
On this date also counsel for the plaintiff was present.
Nobody was present for the defendant and order sheet shows that as judgment was not ready it was postponed to 21st November, 1985.
On 21st November, the judgment was dictated and pro nounced and the order sheet also shows that the learned Judge ordered decree to be prepared.
It appears that after this the defendant claimed that they came to know about the decree on 18th January, 1986 as on that day the plaintiff came to take possession and therefore filed an application under Order 9 Rule 13 for setting aside the exparte decree which was dismissed by the trial court holding that the case was disposed of not in accordance with Order 17 Rule 2 but in accordance with Order 17 Rule 3 and therefore the appli cation under Order 9 Rule 13 was not maintainable.
The appellant defendant thereafter filed an application for review but that application also was dismissed by the trial court.
Thereafter the first appeal Was filed before the High Court of Delhi which was dismissed summarily by the impugned order.
Learned counsel for parties submitted at length the controversy that existed before the amendment of Code of Civil Procedure in 1976 about the interpretation of Order 17 Rule 2 and Order 17 Rule 3.
Apparently there were two views.
one was that Order 17 Rule 3 could be used for deciding the matter on merits if the party is present but has failed to do what was expected of that party to do and this rule could not be used against a party who was present whereas the other view was that even if a party is absent but has failed to do what was expected of him then it was the discretion of the Court either to proceed under Order 17 Rule 2 or under Order 17 Rule 3.
In some decisions, the High Courts have gone to the extent of saying that even if the trail court disposes of the matter as if it was disposing it on merits under Order 17 Rule 3 still if the party against whom the decision was pronounced was absent it could not be treated to be a dis posal in accordance with Order 17 Rule 3 and provisions of Order 9 will be available to such a party either for resto ration or for setting aside an exparte decree.
Learned counsel placed before us a 292 number of decisions of various High Courts on this aspect of the matter.
But in our opinion in view of the amendment to these two rules which have been made by 1976 amendment of the Code of Civil Procedure it is not disputed that to the facts of this case, Code of Civil Procedure as amended will be applicable and therefore it is not necessary for us to go into that question.
Order 17 Rule 2 and Rule 3 as they now stand reads: "Order 17, Rule 2: Procedure if parties fail to appear on day fixed: Where, on any day to which the beating 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 of Order IX 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.
Order 17 Rule 3: Court may proceed notwith standing either party fails to produce evi dence, 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 neces sary 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.
" It is clear that in cases where a party is absent only course is as mentioned in Order 17(3)(b) to proceed under Rule 2.
It is therefore clear that in absence of the defend ant, the Court had no option but to 293 proceed under Rule 2, Similarly the language of Rule 2 as now stands also clearly lays down that if any one of the parties fail to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9.
The explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence.
It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined upto that date the Court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure.
It is therefore clear that after this amendment in Order 17 Rules 2 and 3 of the Code of Civil Procedure there remains no doubt and therefore there is no possibility of any con troversy.
In this view of the matter it is clear that when in the present case on 30th October 1985 when the case was called nobody was present for the defendant.
It is also clear that till that date the plaintiffs evidence has been recorded but no evidence for defendant was recorded.
The defendant was only to begin on this date or an earlier date when the case was adjourned.
It is therefore clear that upto the date i.e. 30th October, 1985 when the trial court closed the case of defendant there was no evidence on record on behalf of the defendant.
In this view of the matter there fore the explanation to Order 17 Rule 2 was not applicable at all.
Apparently when the defendant was absent Order 17 Rule 2 only permitted the Court to proceed to dispose of the matter in any one of the modes provided under Order 9.
It is also clear that Order 17 Rule 3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of defendant was closed nobody appeared for the defendant.
In this view of the matter it could not ' be disputed that the Court when proceeded to dispose of the suit on merits had committed an error.
Unfor tunately even on the review application, the learned trial Court went on in the controversy about Order 17 Rules 2 and 3 which existed before the amendment and rejected the review application and on appeal, the High Court also unfortunately dismissed the appeal in limine by one word.
The learned counsel for the respondent attempted to contend that in this view of law as it now stands an appli cation under Order 9 Rule 13 will be maintainable.
However it was suggested that there was also an objection of limita tion about the acceptance of that applica 294 tion.
It is apparent that the learned trial Court has not considered the application on merits but has only rejected it as not maintainable and that order has been maintained.
This objection of the learned counsel for the respondent is not necessary for us to go into at this stage as in view of the law discussed above, the order rejecting the application as not maintainable, has to be set aside and it will be open to the learned trial Court to consider the application under Order 9 Rule 13 and dispose it of in accordance with that law and while so doing, it may even examine the objections that may be raised by the respondent.
The appeal is therefore allowed with costs.
The order passed by Hon 'ble the High Court and also the trial court rejecting the application of the appellant under Order 9 Rule 13 is set aside and it is directed that the learned trial court will proceed to hear and dispose of the applica tion under Order 9 Rule 13 filed by the appellant in accord ance with law.
A.P.J. Appeal al lowed.

summary/full:
In a suit in which the appellant was defendant, after the plaintiff 's evidence was over, the defendant was to begin his evidence on 24th January, 1985.
As no witness was present, at the request of defendant 's counsel the case was adjourned to 7th May, 1985.
On that day, the case was trans ferred to another Court and the transferee Court ordered the case to be put up on 21st August, 1985.
It being a holiday, the case was put up on 22nd August, 1985 when it was ad journed to 30th October, 1985.
On that day, no one was present for the defendant.
The case was again taken up at 1 p.m. but the situation remained the same.
Since none of the witnesses for defendant was also present, evidence was closed and case fixed for arguments for 1st November 1985.
On this date also nobody appeared for the defendant and the case was adjourned to 8th November, 1985.
On that day, arguments of the plaintiff 's counsel were heard and as none was present for defendant, the case was fixed for judgment on 11th November, 1985.
On this date also nobody was present for defendant and since judgment was not ready it was post poned to 21st November, 1985.
On this date the judgment was dictated, pronounced and decree was ordered to be prepared.
The defendant filed an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 for setting aside ex parte decree urging that he came to know about decree on 18th January, 1986 when the plaintiff came to take posses sion.
The trial Court dismissed the application holding that it was not maintainable because the case was disposed of not in accordance with Order 17 Rule 2, but in accordance with Order 17 Rule 3.
An application for review was also dis missed by the Trial Court.
The first appeal too was summari ly dismissed by the High Court.
Allowing the appeal, 289 Held: 1.
The order passed by the High Court and also the trial Court rejecting the application of the appellant under Order 9 Rule 13 of the Civil Procedure Code 1908 are set aside and the trial Court is directed to dispose of the application in accordance with law.
[294C] 2.
In cases where a party is absent, only course is as mentioned in Order 17(3)(b) to proceed under Rule 2.
The language of amended Rule 2 also lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9.
The Explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in case where a party which is absent has led some evidence or has examined substantial part of their evidence.
Therefore, if on a date fixed, one of the parties remains absent and for that party no evidence has been examined upto that date the court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure.
After this amendment in Order 17 Rules 2 and 3 in 1976 there remains no doubt, and therefore, there is no possibility of any controversy.
[292H 293C] 3.
In the present case, on 30th October 1985 when the case was called nobody was present for the defendant, and till that date the plaintiff 's evidence had been recorded but no evidence for defendant was recorded.
The defendant was only to begin on this date or an earlier date when the case was adjourned.
It is, therefore, clear that upto 30th October 1985 when the trial Court closed the case of defend ant there was no evidence on record on his behalf.
There fore, the Explanation to Order 17 Rule 2 was not applicable at all.
Apparently when the defendant was absent Order 17 Rule 2 only permitted the Court to proceed to dispose of the matter in any one of the modes provided under Order 9.
[293D E] 4.
Order 17 Rule 3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of the defendant was closed nobody appeared for the defendant and, therefore, the Court when it proceeded to dispose of the suit on merits had committed an error.
Even on the review application, the trial Court went on in the controversy about Order 17 Rules 2 and 3 which existed before the amendment and rejected the review application and on appeal, the High Court also unfortunately dismissed the appeal in limine by one word.
[293F G]