Research › Search › Judgment

Jharkhand High Court · body

2007 DIGILAW 901 (JHR)

Ashok Kumar Singh v. Prabhat Kumar Ghose

2007-12-05

M.Y.EQBAL

body2007
ORDER :- This application under Article 227 of the Constitution of India is directed against the order dated 4.8.2007 passed by Sub. Judge -IX, Ranchi in Misc. Case No. 05 of 2006 whereby the petition filed by the Plaintiff-petitioner under Order IX, Rule 8 read with Section 151 C.P.C. for setting aside the order dated 26.6.2006 and for restoration of Title Suit No. 304 of 2003 has been dismissed on the ground that the petition is not maintainable. 2. The facts of the case lie in a narrow compass : The plaintiff filed Title Suit No. 304 of 2003 for declaration that defendant No. 1 has no right, title, interest or possession in the suit property and that plaintiff is in rightful possession of the said property. Defendant-respondents on being summoned appeared and filed written statement and contested the suit. Both parties filed their respective issues and the court below settled the issues on 5.5.2005 and the suit was posted for evidence. Since plaintiff failed to produce witnesses, the court below closed the evidence of the plaintiff. However, the said order was subsequently recalled and the case was again posted for evidence. Since plaintiff failed to produce witnesses, the court below dismissed the suit by passing order dated 26.6.2006 purported to be under Order XVII, Rule 3(a) C.P.C. The plaintiff thereafter filed petition under Order IX, Rule 8 read with Section 151 C.P.C. for restoration of suit. The said application was registered as Misc. Case No. 05 of 2006. However, the court below dismissed the said application by order dt. 4.8.2007 holding that the said application is not maintainable. 3. Mr. Ajit Kumar, learned counsel appearing for the petitioner, assailed the impugned order as being illegal and wholly without jurisdiction. Learned counsel firstly submitted that the court below has committed serious error of law in holding that the dismissing the suit under Order XVII, Rule 3(a) C.P.C. is a decree and therefore, application for restoration of the suit is not maintainable. Learned counsel further submitted that the court below has further committed serious illegality in holding that against the order of dismissal of suit under Order XVII, Rule 3(a) C.P.C., only an appeal or review before the appropriate Court is maintainable. 4. Mr. Learned counsel further submitted that the court below has further committed serious illegality in holding that against the order of dismissal of suit under Order XVII, Rule 3(a) C.P.C., only an appeal or review before the appropriate Court is maintainable. 4. Mr. Prashant Kumar Singh, learned counsel appearing for the defendant-respondents, on the other hand, submitted that the suit was posted for evidence and the court below, therefore, rightly dismissed the suit under Order XVII, Rule 3(a) C.P.C. as the plaintiff failed to adduce evidence. 5. Before appreciating the submission of the learned counsels, I would first like to refer the order dated 26.6.2006 whereby the suit was dismissed applying Order XVII, Rule 3(a) C.P.C. The order reads as under :- "Both the parties have filed their attendance through their learned counsel. Today is the date fixed for recording evidence on behalf of the plaintiff. On 9.6.2006 a last chance was given to the plaintiff to adduce evidence. On perusal of the judicial record, I find that in this suit the issues were settled on 5.5.2005 and the record was posted for recording evidence. After providing eight adjournments, on 7.7.2005 the evidence of plaintiff was closed. It reveals from judicial record that on 27.1.2006 the then Presiding officer of the Court recalled its own order of closure of evidence. The record was again posted for recording evidence. After re-opening the record at the stage of evidence i.e. since 18.2.2006 eight adjournments have again been provided to the plaintiff to adduce evidence but the plaintiff has taken all the adjournments wantonly. In this case altogether sixteen adjournments have been provided to adduce evidence but not a single witness has been examined so far. In spite of repeated directions of the Court, closure of his evidence but reopened with cost and giving last chance to the plaintiff to adduce evidence - the plaintiff has not produced any witness in Court. Today an adjournment petition has been filed on behalf of the plaintiff. But the petition does not bear signature of any one. Moreover, Order XVII, Rule 1 proviso of the C.P.C. provides only three adjournments to be granted to a party during hearing of the suit. As there is a legislative restriction on adjournment, I am unable to grant a seventeenth (17th) adjournment to the plaintiff to adduce evidence. And hence the plaintiff's evidence is hereby closed. Moreover, Order XVII, Rule 1 proviso of the C.P.C. provides only three adjournments to be granted to a party during hearing of the suit. As there is a legislative restriction on adjournment, I am unable to grant a seventeenth (17th) adjournment to the plaintiff to adduce evidence. And hence the plaintiff's evidence is hereby closed. On perusal of judicial record, I find that not a single witness has been examined on behalf of the plaintiff. This is a case of no evidence. And hence, the plaintiff's suit is dismissed u/O XVII Rule 3(a) of the C.P.C. The parties will bear their own cost." 6. As noticed above, the petitioner-plaintiff thereafter filed an application for restoration of the suit which was dismissed as not maintainable by order dated 04.08.2007. The order dated 04.8.2007 reads as under :- The petitioner has filed the petition to restore the original T.S. No. 304/03 which was dismissed on 26.06.06 under Order XVII, Rule 3(a) of the C.P.C. A decision passed 'forthwith' under Rule-3 is one on the merits as gathered from available facts. Where the court so proceeds, it is not open to the party aggrieved by the decision to file an application for setting aside the decree u/O IX Rule-13 of the CPC. A decision under Rule-3(A) Order XVII is a decree. The remedy of a party aggrieved by an order under this rule is by way of appeal or review and by an order under this is by way of appeal or review and not by way of an application for restoration u/O IX Rule 9 or Order Rule 13. During hearing, a question was raised by the learned counsel for the applicant that whether, "Vakalatan Hazri" (attendance through counsel) can be considered that the parties were present to attract the provision of order XVII Rule 3 (a) of the CPC. To my dismay an advocate who has been empowered through Vakalatnma by the executant party to conduct the suit, if files attendance on behalf of his client party it will be deemed that the party was present in court and the provision of Order XVII Rules 3(a) will very much attracted. Accordingly, the miscellaneous case is rejected at the stage of its admission itself." 7. Order XVII lays down the procedure for granting adjournment. Accordingly, the miscellaneous case is rejected at the stage of its admission itself." 7. Order XVII lays down the procedure for granting adjournment. The provision has been substantially amended so that while granting adjournment, Court has to exercise its discretion and to record reasons for giving adjournment. Rule 1 of Order XVII C.P.C. provides that at any sage of the suit, Court may grant time to the parties and may adjourn the hearing of the suit after recording reasons, but no adjournment shall be granted more than three times to a party during hearing of the suit. Sub-rule (2) 1 of Rule makes provisions for imposing cost while granting adjournment. Order XVII Rule 2 C.P.C. provides that on the day of hearing of the suit, if the party fails to appear, the Court will proceed to dispose of the suit in one of the modes provided under Order IX of the Code or to pass such orders as it thinks fit. Explanation to Rule 2 provides that in cases where substantial portion of evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may in its discretion proceed with the case as if such party were present. Rule 3 of Order XVII C.P.C. is relevant for the present case. Rule 3 of Order XVII C.P.C. reads as under :- "3. Court may proceed notwithstanding either party fails to produce evidence, 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 necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, - (a) if the parties are present, proceed to decide the suit forthwith, or (b) if the parties are, or any of them is, absent, proceed under rule 2." 8. Clause (a) and (b) of Rule 3 have been substituted for the words "proceed to decide the suit forthwith" appearing at the end of old Rule 3 by the C.P.C. (Amendment) Act, 1976. The said amendment made it clear that action can be taken by the Court when parties are present as well as in their absence. Clause (a) and (b) of Rule 3 have been substituted for the words "proceed to decide the suit forthwith" appearing at the end of old Rule 3 by the C.P.C. (Amendment) Act, 1976. The said amendment made it clear that action can be taken by the Court when parties are present as well as in their absence. For proper appreciation of Rule 3 of Order XVII CPC, it would be useful to refer Rule 2 of Order 17 CPC which reads as under :- "2. Procedure if parties fail to appear on day fixed. - Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit." 9. In this Rule, Explanation has been inserted by C.P.C. (Amendment) Act, 1976. From bare reading of Rule 2, it is manifestly clear that on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in the manner provided under Order IX of the Code of Civil Procedure. However, the Explanation aforesaid confers power to the Court to proceed with a case even in absence of any party in a case where evidence or substantial portion of the evidence of such party has already been recorded. 10. Rule 3 of Order XVII clearly provides that in a suit where either the plaintiff or the defendant to whom time has been granted, falls to produce his evidence or cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit for which time has been allowed, then the Court may proceed to decide the suit forthwith if the parties are present or if the parties are absent, then proceed under Rule 2. In other words, on the date when the suit was fixed by the Court for producing evidences, such party although present but fails to produce evidence, then the Court shall proceed to decide the suit forthwith. 11. In other words, on the date when the suit was fixed by the Court for producing evidences, such party although present but fails to produce evidence, then the Court shall proceed to decide the suit forthwith. 11. The words, "decide the case forthwith" as used in Order XVII, Rule 3 presuppose and imply the presence before the Court of materials of some kind on which to base its decision. 12. In the Law Lexicon, the word "decide" means to determine; to form a different opinion; to give judgment for or against a party to suit or other proceeding in Court. To decide include the power and right to deliberate, to weigh the reasons for or against. 13. In the light of the aforesaid provisions, i.e. Rules 2 and 3 of Order XVII C.P.C. the Court has to examine the correctness of the impugned order passed by the Court below dismissing the suit in purported exercise of power under Order XVII, Rule 3(a) C.P.C. In the impugned order dated 26.6.2006, the court below recorded that in spite of several adjournments plaintiff failed to produce evidence. The Court further found that not a single witness was examined by the plaintiff. The court below therefore, held that it is a case of no evidence and hence, the plaintiff's suit is dismissed under Order XVII, Rule 3(a) of the Code of Civil Procedure. From bare perusal of the impugned order, it is evidently clear that the court below without going into pleadings of the parties and without going into any material, dismissed the suit holding that it is a case of no evidence. 14. In my considered opinion, therefore, the impugned order passed by the court below dismissing the suit cannot and shall not be treated as an order under Order XVII, Rule 3(a) of the C.P.C. Admittedly, the Court while dismissing the suit has not gone into the pleadings of the parties available on record, nor the Court has, in fact, decided any dispute involved in the suit. The Court below rather dismissed the suit for non-production of evidence. Hence, in my opinion, it is an order under Order IX, Rule 8 CPC. In that view of the matter, application filed by the petitioner under Order IX, Rule 9 CPC ought not to have been dismissed by the Court as not maintainable. 15. The Court below rather dismissed the suit for non-production of evidence. Hence, in my opinion, it is an order under Order IX, Rule 8 CPC. In that view of the matter, application filed by the petitioner under Order IX, Rule 9 CPC ought not to have been dismissed by the Court as not maintainable. 15. In the facts and circumstances of the case and having regard to the law discussed herein above, the impugned order passed by the court below dismissing the suit and also the order dismissing the restoration application not maintainable cannot be sustained in law. Hence, this application is allowed. The impugned orders are set aside. The court below is directed to entertain the restoration application and dispose of the same in accordance with law. Let it be clarified that I have not gone into merit of the restoration application which shall be considered by the court below in accordance with law. Application allowed.