Birbal v. Lal singh — 1957 DIGILAW 64 (RAJ)

The circumstances that give rise to this second appeal may briefly be stated thus: Birbal instituted- a suit in the court of the Assistant Collector, Bharatpur against Lal Singh and Shrichand on 26.7.55 of declaration of his tenancy rights and grant of a perpetual injunction. It was averred in the plaint that the plaintiff had been the non-occupancy tenant of the land in dispute since Svt 2007, that in Svt. 2011 the defendants succeeded in having the entry in the Gasht Girdawari made in their favour, that they were attempting to eject him wrongfully and hence it was prayed that the plaintiff be declared to be a non-occupancy tenant and the defendants be restraised from interfering with his possession. The suit was contested on the ground that the plaintiff was never a tenant of the land in dispute, that the entries for Svt. 2008 to 2010 were made wrongly by the Patwari at the instance of the plaintiff, that the entry for Svt. 2011 was correct and that the defendants had been in continuous possession of the land. Issues were framed in the suit on 10.10.55 and the case was adjourned to 22.10.55 to be taken up at Sajola village for recording the evidence of the parties. On this date i.e. 22.10.1955 the court could not proceed to Sajola and hence the case was adjourned to 12.11.55 evidently in the absence of the parties On 12.11.55 the case was taken up at village Sajola. The plaintiffs counsel was present and applied for an adjournment on the ground that a death had taken place in the plaintiffs family which had necessitated the plaintiffs going along with his family for condolence purposes. It may also be observed here that on 12-10 55 the plaintiff had applied for issue of summons to the village Patwari along with the record for being examined as a witness in the case and had deposited the requisite costs in that behalf. The learned Assistant Collector rejected this request on the ground that the court had proceeded to the village and hence the parties were bound to lead evidence. Thereafter the plaintiffs counsel stated that he was prepared to pay the costs of the adjournment as well but that request was also turned down. The plaintiffs counsel then stated that he had no further instructions in the matter. Thereafter the plaintiffs counsel stated that he was prepared to pay the costs of the adjournment as well but that request was also turned down. The plaintiffs counsel then stated that he had no further instructions in the matter. The learned Assistant Collector recorded the statements of two witnesses produced by the defendants and adjourned the case to 17.11.55. On this date the plaintiff was present in the court and stated that a death in his family had prevented his attending the court on last date of hearing and hence he prayed that an opportunity be given to him to lead his evidence. The learned Assistant Collector rejected this application merely with the observations that it was without strong reasons and he passed an order which, translated in English, would run as below :— "This case was taken up on 12.11.55 at the site in the presence of the plaintiffs vakil, the defendants and their counsel. The plaintiff did not lead any evidence. The defendants examined two witnesses and their statements were recorded. In the absence of any proof the case be dismissed under O. 17, R. 3. The parties be informed. Sd/-Assistant Collector, 17.11-55. The plaintiff went up in appeal before the Additional Commissioner. The respondent defendants contended that the only remedy available to the appellant was to apply for setting aside the exparte order and that the appeal was incompetent. This plea found favour with the learned Additional Commissioner and hence the appeal was rejected. Hence this second appeal by the plaintiff. 2. The learned counsel appearing for the appellant has argued before us that the order of the trial court, dated 17-11 1955 was expressed to be under O.17 R. 3, that a decree was also drawn up in accordance with this order, that the trial court had no jurisdiction to set aside this decree and that the only remedy available to the appellant was to go up in appeal against this decree which he did. Reliance has been placed in this connection upon A.I.R. 1948 Nagpur 310. This case bears a marked resemblance to the facts of the present case. In the Nagpur case the counsel for the plaintiff appeared and applied for an adjournment on the ground of the absence of the plaintiff. The court rejected the application and proceeded with the case by examining the defendant. This case bears a marked resemblance to the facts of the present case. In the Nagpur case the counsel for the plaintiff appeared and applied for an adjournment on the ground of the absence of the plaintiff. The court rejected the application and proceeded with the case by examining the defendant. The suit was dismissed and a decree was passed. It was held that the decision was on merits and the case was governed by O. 17, R. 3. A I.R. 1944 Allahabad 211 has also been cited in this connection. It was observed in this case that once the judge has passed the order under R. 3 and not under R. 2, he has no jurisdiction to set it aside. 3. On behalf of the respondents reliance has been placed upon a decision of the Honble High Court of Judicature for Rajasthan, Ramkaran vs. Radha Mohan decided on 27.7.52 (1954 RLW. 230). The facts of this ruling are clearly distinguishable from the present case inasmuch as in that case neither the plaintiff nor his counsel was present before the court and what is more important is the fact that no evidence either of the plaintiff or of the defendant was recorded by the court. It was because of these considerations that their Lordships were pleased to observe that even thought the order may be expressed to have been passed under O.17, R. 3 C.P.C. yet it ought to be deemed to have been passed only under O.17, R.2 C. P. C. A I. R. 1953 M. B. 258 has also been cited in this connection. In that case the plaintiff though physically present in court refused to take part in the proceedings after the dismissal of his application for adjournment and it was held that it cannot be said to have been present there as par-taking in the proceedings. His physical presence cannot be taken cognizance of and the only conclusion that one could come to was that he did not appear at the hearing. It was held that case was governed by O.17 R. 2. In that case also there was no decision on merits and the dismissal was for default of the plaintiff. 4. The principles to be borne in mind have been enunciated by the Supreme Court in AIR 1955 S.C. 425 . It was held that case was governed by O.17 R. 2. In that case also there was no decision on merits and the dismissal was for default of the plaintiff. 4. The principles to be borne in mind have been enunciated by the Supreme Court in AIR 1955 S.C. 425 . "There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings :that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle." In the present case it will be found that the plaintiffs counsel applied for an adjournment on 12.11.55 on the ground of his relations death. The fact that his relation did in fact die was not challenged by the defendants before the trial court. The plaintiff even undertook to re imburse costs of the defendants to be fixed by the court. As pointed out above, this was the first date of hearing fixed in the case for recording the evidence, the previous one having been adjourned because the court itself could not proceed to the village. The plaintiffs counsel naturally expressed his inability to lead any evidence in the matter and pleaded absence of instructions evidently on that ground. On 17.11.55 the plaintiff appeared before the trial court and assigned an explanation for his absence on the last date of hearing. It is really unfortunate that the trial court even then did not consider it desirable to allow him an opportunity and passed a decree against him under O.17, R. 3. In view of the decisions cited by the appellants counsel, it is clear that the order of the trial court purporting to be under O.17 R. 3 was really speaking under that very provision and cannot be deemed to be under O.17, R. 2 C.P.C. The appellant had no other remedy but to go up in appeal which he actually did. The absence of the plaintiff appellant on 12.11.55 was neither deliberate nor wilful. It is for sufficient grounds and the ends of justice demand that he should not be penalised for being absent for circumstances beyond his control. It is the duty of the courts to administer substantial justice in actions that are put up before them and not to insist on enforcing some sort of military discipline that may ignore the demands of real justice between the parties. As observed by their Lordships of the Supreme Court, procedure should not be allowed to become a penal enactment for punishment and penalties or a thing designed to trap people up. Once the trial court had passed the order it had no jurisdiction to set it aside in as much as it was not an order under O.17, R. 2 but was one passed under O.17 R. 3. But now when the matter is in appeal before us we ought to take into con-deration the plea put forth by the plaintiff for his absence. As pointed out above the plaintiff could not attend the court because of a death in his family. This fact has not been denied either in the trial court or in appeal before us. The plaintiff took the earliest possible opportunity to attend the court and applied for leading his evidence in the case. We are therefore of the opinion that the plaintiff had clearly made out a case of reasonable excuse. We therefore think that this is a fit case in which the plaintiff should be given a fresh opportunity to prove his case. We therefore, allow this appeal, set aside the decrees of the court below and send the case back to the court of first instance for trial according to Jaw.