M.S Khalsa V.
Chiranji Lal & Ors
MEMORIAL ON THE CASE
M.S Khalsa ……………………………..……………………………….……………Appellant
Vs.
Chiranji lal &
ors…..……………………………………………………………………Respondent
Subject: Civil Procedure Code
SUBMITTED TO: SUBMITTED BY:
Ms. Ana Sisodia Garima Gaur
(Assistant professor) [Link].B.
(VII Semester)
Enrolment Number:190500000035
SARDAR PATEL SUBHARTI INSTITUTE OF LAW
SWAMI VIVEKANAND SUBHARTI UNIVERSITY
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M.S Khalsa V. Chiranji Lal & Ors
ACKNOWLEDGEMENT
On very outset, I would like to pay thanks to the almighty God. It gives me immense pleasure to
acknowledge and to say thanks to the ones who helped me throughout the course of my work.
I am really thankful to our respected subject teacher ‘ Ms. Ana Sisodia’ mam under whose learned
and scholarly guidance the present work has been completed. She helped in a passive way. She
gave me moral support and guided me in different matters regarding the topic. She had been very
kind and patient while suggesting me the outlines of this Memorial and correcting my doubts.
I thank her for overall supports. Constructive suggestions have always been soothing and desired
effect, hence it my duty to express my gratitude for her constant support and encouragement.
I want to pay my sincere thanks to Dean, Faculty of Law ‘ Dr. Vaibhav Goel Bhartiya’, for his
support and guidance. I want to thank all my friends who helped me in completing my work.
Last, but not the least, my thanks to all who have helped directly or indirectly in the completion of
my work.
Thanks
Name: Garima Gaur
[Link].B.
VII Semester
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M.S Khalsa V. Chiranji Lal & Ors
In The Hon’ble ‘High Court of Allahabad
MS Khalsa (Appellant )
Vs.
Chiranji Lal (Respondent)
Memorial On Behalf Of the Respondent
NAME: Garima Gaur
(COUNSEL FOR THE RESPONDENT)
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M.S Khalsa V. Chiranji Lal & Ors
TABLE OF CONTENTS
[Link] Subject Matter Page No.
1. List of Abbreviations 5
2. Index of Authorities 6
(i) Books referred
(ii) Statutes Referred
(iii) Weblink referred
3. Statement of Jurisdiction 7
4. Statement of Facts 8
5. Issues Raised 9
6. Arguments. 10-11
7. Prayer. 12
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M.S Khalsa V. Chiranji Lal & Ors
LIST OF ABBREVIATIONS USED
1. &. — and
2. V. — Versus
3. Hon’ble. — Honourable
4. H.C. — High court
5. CPC — Civil procedure code
6. Ors. __ Others
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M.S Khalsa V. Chiranji Lal & Ors
INDEX OF AUTHORITIES
• Cases Cited
1. Lalta Prasad v. Nand kishore
2. Sangram Singh v. Election Tribunal
• Books referred
1. C.K. Takwani, Civil Procedure Code, EBC, Reprint, 2022
• Statutes Referred
1. Code of Civill Procedure,1908
• Weblink referred
1. [Link]
2. [Link]
3. [Link]
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M.S Khalsa V. Chiranji Lal & Ors
STATEMENT OF JURIDICTION
The Respondent has approached before this Hon’ble H.C. under Sec. 961 of CPC,1908.
1Appeals from original Decree
1-Save where otherwise expressly provided in the body of this Code or by any other law for the time being
in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the
Court authorised to hear appeals from the decisions of such Court.
2-An appeal may lie from an original decree passed ex parte.
3-No appeal shall lie from a decree passed by the Court with the consent of parties.
4-No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by
Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not
exceed ten thousand rupees.
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M.S Khalsa V. Chiranji Lal & Ors
STATEMENT OF FACTS
1. That The plaintiffs who are the opposite-parties in the revision, filed a suit for
ejectment of the defendant,
2. That On 20-11-1964, the suit was adjourned at the instance of the defendant to
3-12-1964. The case was again adjourned to 18-12-1964 on the application of
the defendant.
3. That the case was called up on 18-12-1964, the defendant was absent and the
trial court after recording the plaintiff's evidence decreed the plaintiff's suit
after discussing all the issues on merits.
4. That An application was moved by the defendant on 22-12-1964 under Order
IX, Rule 13, C.P.C for setting aside the ex parte decree.
5. That This application was dismissed by the Munsif on the ground that it was not
maintainable as the order had been passed under Order XVII, Rule 3, C.P
6. That the defendant filed a regular first appeal, which failed. A second appeal
against this decision was dismissed by this Court on 16-11-1965.
7. That defendant filed an appeal against the order of the Munsif dated 10-3-1965
rejecting his application under Order IX, Rule 13, C.P.C This appeal was
dismissed by the Additional. Civil Judge on 27-3-1968
8. That final hearing on 2-4-1968. On this date, counsel, for the plaintiff moved an
application for adjournment of the case on the ground that the plaintiff was ill.
The application was rejected and thereafter the counsel stated that he had no
instruction.
9. That counsel for defendants stated that he had no further instructions, and was,
therefore, withdrawing from the case.
10. That The Court directed that the case will proceed under Order XVII, Rule 3,
C.P.C
11. That the plaintiff produced his evidence and closed his case.
12. That The Court fixed 2-8-1969 for judgment.
13. That On 2-8-1969 the suit was decreed on the merits.
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M.S Khalsa V. Chiranji Lal & Ors
ISSUES RAISED
1. Whether Rule 3 of Order XVII can at all apply if one or the other of the parties has failed to appear?
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M.S Khalsa V. Chiranji Lal & Ors
ARGUMENTS
ISSUE: Whether Rule 3 of Order XVII can at all apply if one or the other of the parties has failed to
appear?
CONTENTION: The counsel on behalf of the respondent's argued that once the court
passing the decree purported to act under Order XVII, Rule 32, this Court was bound
by such action and must accept that the decree was passed under that Rule and in the
case of Lalta Prasad vs Nand Kishore3 it is ordered that the claim be dismissed for
default of appearance and for want of prosecution with costs.”The court, after the case
has been heard, shall pronounce judgment, and on such judgment, a decree shall
follow.”According to Sec 33 of CPC4This section makes a distinction between the
hearing of a case by the court on the one hand, and the pronouncing of the judgment by
the court after the hearing. The pronouncing of judgment is not part of the hearing of
the case. It is an event which happens after the hearing is over and completed. Therefore,
when the court, after recording whatever evidence is available, fixes a date only for
delivery of judgment, such a date is not for hearing or for further hearing within
meaning of Order IX, Rule 1, or Order XVII, Rule 1, to which Rule 2 of Order
XVII may apply. The fact that the defendant did not appear on 2-8-1969 will not make
the decree passed by the court on that day a decree passed ex parte against the
defendants. It was a decree passed after a hearing on the merits, with the result that an
application under Order IX, Rule 13, C.P.C for its setting aside was not maintainable.
“Where any party to a suit to whom time has been granted fails to produce his evidence,
or to cause the attendance of his witness, 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”. Where previous to
any such day, the evidence or a substantial portion of the evidence of any party has 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
2 The rejection of the plaint on any of the grounds hereinbefore mentioned shall
not of its own force preclude the plaintiff from presenting a fresh plaint in respect
of the same cause of action.
3
1900) ILR 22 All 66
4 The Court, after the case has been heard, shall pronounce judgment, and on such
judgment a decree shall follow.
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M.S Khalsa V. Chiranji Lal & Ors
and in the case of Sangram Singh's case,5the Supreme Court emphasised that right to proceed
ex parte occurs from day to day of the adjourned hearing. The same principle is applicable to Order
XVII, Rule 3 If on a particular date of hearing Rule 3 is attracted, the court can proceed to try the
suit on that day, and if for some reason it is unable to conclude the hearing or decision of the suit
on that day and adjourns the further hearing to another day, the next date will not automatically be
governed by Rule 3. It will depend on the circumstances prevailing on that day. This section makes
a distinction between the hearing of a case by the court on the one hand, and the pronouncing
of the judgment by the court after the hearing The pronouncing of judgment is not part of the
hearing of the case. It is an event which happens after the hearing is over and completed. Therefore,
when the court, after recording whatever evidence is available, fixes a date only for delivery
judgment, such a date is not for hearing or for further hearing within meaning of Order IX, Rule
1,6 or Order XVII, Rule 17, to which Rule 2 of Order XVII may apply. The fact that the
defendant did not appear on 2-8-1969 will not make the decree passed by the court on that day a
decree passed ex parte against the defendants. It was a decree passed after a hearing on the merits,
with the result that an application under Order IX, Rule 13, C.P.C8. for its setting aside was not
maintainable. The application was rightly dismissed therefore the appeal has no substance.
5 1955 AIR 425, 1955 SCR (2) 1
6 Parties to appear on day fixed in summons for defendant to appear and answer
7 Court may grant time & adjourn hearing .
8 Setting aside exparte decree
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M.S Khalsa V. Chiranji Lal & Ors
PRAYER
In the light of the issues raised, arguments advanced and authorities cited, the counsel of the
petitioner humbly pray before this Hon’ble H.C. to kindly
1. The appeal has no substance.
Or pass any order as the hon’ble Court may deem fit in the interest of justice, equality, and
good conscience and the respondent shall forever; beseech the Hon’ble Court for its congnitive
consideration.
All of which is most humbly submitted
Name: Garima Gaur
(Counsel for the Respondent )
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