Research › Browse › Judgment

Rajasthan High Court · body

1997 DIGILAW 386 (RAJ)

Bhupendra Bhandari v. State Bank of India

1997-03-17

R.R.YADAV

body1997
Honble YADAV, J. – Heard the learned counsel for the parties. (2). Perused the judgment and decree under appeal. (3). It is borne out from the record that the plaintiff-appellant filed a suit against the defendant-respondent for recovery of Rs. 57,000/- for use and occupation of the Godown. (4). The plaintiff-appellant resides in America in the State of California (Sen Francisco). (5). On 21.3.95 the case was adjourned at the cost of Rs. 150/- for plaintiffs evidence. The next date of hearing was 9.5.95 when the learned trial court Judge was on leave. The next date fixed was 17.7.75, on which date the plaintiffs counsel Shri Kanak Mal Singhvi was ill. He was suffering from high blood pressure and heart problem and was advised complete bed rest for three weeks and therefore he was not attending the court from 10th July onwards. The plaintiff-appellants brother a special power of attorney holder Shri Raj Kumar Singh Bhandari contracted the lawyer Shri Kanak Mal Singhvi on 15.7.95 for seeking instructions to appear in the court for evidence on 17.7.95. Learned counsel Shri Singhvi informed him that he is not feeling well and is on bed rest and therefore he would get the case adjourned and so he need not attend the Court. On 17.7.95 Advocate Shri K.M. Singhvi sent one Shri Natha Ram for seeking adjournment but the learned trial court did not grant adjournment and closed the evidence and adjourned the case for arguments on 24.7.95 and on that day the impugned judgment and decree was passed. (6). The basis question involved in the present case is as to whether the facts and circumstances mentioned above, the learned trial court ought to have proceeded under Order 17 Rule 2 CPC or under Order 17 Rule 3 CPC. (7). It is true that it is the discretion of the learned trial court either to proceed under sub-rule (a) of Rule 3 of Order 17 or to proceed under sub-rule (b) of Rule 3 of Order 17. (8). A close scrutiny of sub-rule (a) of Rule 3 of Order 17 gives a discretion to the civil court that if the parties are present, proceed to decide the suit forthwith or if the parties are, or any of them is, absent, proceed under Rule 2. (9). Indisputably, in the present case, the plaintiff-appellant was not present. (8). A close scrutiny of sub-rule (a) of Rule 3 of Order 17 gives a discretion to the civil court that if the parties are present, proceed to decide the suit forthwith or if the parties are, or any of them is, absent, proceed under Rule 2. (9). Indisputably, in the present case, the plaintiff-appellant was not present. If the plaintiff was not present and his counsel was confined to bed due to heart ailment then the court ought to have proceeded under Order 17 Rule 2 CPC and instead of passing a decree ought to have dismissed the suit for default as envisaged under Order 9 CPC. (10). It is well to remember that discretion given to the learned trial court under sub-rule (a) and sub-rule (b) of rule 3 of Order 17 CPC is a judicial discretion which differs from case to case and which can be exercised judiciously, taking into account all the facts and circumstances of a case. I am of the opinion that in the present case the learned trial court has not taken into account all the compelling circumstances which prevented the plaintiff to adduce evidence for progress of the suit on 17.7.95. I am further of the view that the learned trial court has to look to the facts and circumstances of each case before invoking either of the sub-rules. (11). In view of what has been discussed above, the judgment and decree under appeal dated 24.7.95 is hereby set aside and the case is remanded back to the learned trial court to decide the same on merits after giving opportunity to the parties to adduce evidence. (12). Both the parties are hereby directed to appear before the learned trial court on 3rd of May, 1997. The office is directed to remit the record of the learned trial court forthwith. (13). Before parting with the judgment it is made clear that since the case is being remanded, therefore, the plaintiff-appellant is entitled to get refund of the full court fee paid on the memo of appeal.