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2009 DIGILAW 68 (CHH)

Pdma v. Rainsi Ram

2009-02-27

T.P.SHARMA

body2009
ORDER The applicants have filed the instant revision against the order dated 5.1.2008 passed by the District Judge, Jashpur, in unregistered miscellaneous appeal whereby the learned District Judge has dismissed the appeal filed against the order of dismissal of the application filed under Rule 9 of Order 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as `Code') on the ground that the order passed by the Court below was under Rule 3(a) of Order 17 of the Code and not under Rule 3(b) of Order 17 of the Code. 2. I have heard learned counsel for the applicants and learned Panel lawyer for State/respondent No.5 and perused the order impugned and other documents filed on behalf of the applicants. 3. Learned counsel for the applicants frankly admits that the applicants were required to file application under Section 5 of the Limitation Act, 1963 before the trial Court or were required to explain the delay in filing an application beyond the period of limitation but bonafidely and under bonafide willing, they have not filed such application and have not elaborately mentioned the fact in the application filed under Rule 9 of Order 9 of the Code but precisely mentioned the fact that after passing the order dated 14.2.2006 they have applied for a copy of the order and after obtaining a copy of the order they have filed an application within 30 days from the date of receipt of a copy of the order. Learned counsel vehemently argues that on the date of the order dated 14.2.2006 passed by the Civil Judge Class-I, Jashpur, both the parties were not present and an application for adjournment under Rule 1 of Order 17 of the Code was filed on behalf of the applicants/plaintiffs and the same was dismissed. Learned counsel vehemently argues that on the date of the order dated 14.2.2006 passed by the Civil Judge Class-I, Jashpur, both the parties were not present and an application for adjournment under Rule 1 of Order 17 of the Code was filed on behalf of the applicants/plaintiffs and the same was dismissed. Learned counsel further submits that at the time of order of dismissal, the applicants/plaintiffs were not present and therefore, the Court of first instance was not competent to proceed or to decide the suit in accordance with clause (a) of Rule 3 of Order 17 of the Code, but the Court was competent to proceed under Rule 17 of Order 2 i.e. in accordance with Order 9 of the Code, but the appellate Court has wrongly dismissed the appeal on the ground that the application filed under Rule 9 of Order 9 of the Code was not tenable before the trial Court on the assumption that the trial Court has proceeded and passed the order under Rule 3(a) of Order 17 of the Code. 4. On the other hand, order impugned is supported on behalf of the respondent No.5/State. 5. Order dated 14.2.2006 passed by the Civil Judge Class-I, Jashpur shows that on the date of hearing, both the parties were not present and an application for adjournment was filed on behalf of counsel for the applicants/plaintiffs. In the absence of the parties, the Court was not competent to pass any order in terms of clause (a) of Rule 3 of Order 17 of the Code. The Court was only competent to proceed under Rule 2 of Order 17 in accordance with Order 9 of the Code and the Court of first instance has dismissed the suit under the provisions of Rule 2 of Order 17 in accordance with Order 9 of the CPC. 6. Order 17 of the Code reads as under:- 1. The Court was only competent to proceed under Rule 2 of Order 17 in accordance with Order 9 of the Code and the Court of first instance has dismissed the suit under the provisions of Rule 2 of Order 17 in accordance with Order 9 of the CPC. 6. Order 17 of the Code reads as under:- 1. Court may grant time and adjourn hearing.- [(1) The Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during haring of the suits.] (2) Costs of adjournment.-In every such case the Court shall fix a day for the further hearing of the suit, and [shall make such orders as to costs occasioned by the adjournment or such higher costs as the Court deems fit]: Provided that ,- (a) when the hearing of the suit has commenced, it shall be continued from day- to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary, (b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party, (c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment, (d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time, (e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross- examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in- chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.] 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. [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. 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]. 7. For proceeding under clause (a) of Rule 3 of Order 17 of the Code, presence of parties is sine qua non. Presence of advocate to represent the parties and to file an application for adjournment does not constitute the presence of parties. In the present case, on the date of hearing before the trial Court, parties were not present. Counsel for the applicants has sought adjournment. The Court below was not competent to proceed or to pass any order under clause (a) of Rule 3 of Order 17 of the Code. The order passed by the trial Court may be under Rule 2 of Order 17 i.e. in accordance with the provisions of Order 9 of the Code. The order passed under clause (a) of Rule 3 of Order 17 of the Code is appealable or revisable in accordance with Section 96 or 115 of the Code, but the order passed under Rule 2 of Order 17 i.e. in accordance with Order 9 of the Code is appealable as well as party may apply for its setting aside or restoration in accordance with the provisions of Order 9 of the Code. The lower appellate Court has dismissed the appeal only on the sole ground that no remedy for setting aside the order was available to the applicants under Order 9 of the Code. The lower appellate Court has committed illegality in arriving at a finding that in the absence of the parties on the date hearing, the Court below was only competent to proceed and pass the order under clause (a) of Rule 3 of order 17 of the Code and was not competent to pass any order in accordance with Rule 2 of Order 17 i.e. in accordance with Order 9 of the Code. 8. For the foregoing reasons, the revision is allowed. The order dated 5.1.2008 passed by the District Judge, Jashpur is hereby set aside. The case is remitted back to the First Appellate Court for hearing the case and passing the order afresh. Registry is directed to send the records forthwith to the Court below. No order as to costs.