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2010 DIGILAW 2171 (PNJ)

Santosh Kumari v. Krishan Kumar

2010-07-30

K.C.PURI

body2010
Judgment K.C.Puri, J. 1. This is an appeal directed by plaintiffs against the judgment dated 9.10.2006 passed by Sh. S.S. Lamba, Additional District Judge, Rohtak, vide which the appeal preferred by the plaintiff-appellants against judgment dated 10.6.2005 passed by Sh.H.S. Dahiya, Civil Judge (Senior Division), Rohtak, was dismissed. 2. The plaintiffs filed a suit for declaration with consequential relief of permanent injunction with the allegation that plaintiff No. 1 is the mother and plaintiff No.2 is her son. They jointly owned and possessed = share in the suit land. Jagdish Kumar, another son and Smt. Saroj Bala, daughter of plaintiff No. 1 owned and possessed the other = share in the suit land. On 7.11.1997, on obtaining a certified copy of jamabandi for the suit land, the plaintiffs were shocked to note that their share in the suit land stood transferred allegedly through sale to one Krishan Kumar son of Gowardhan Singh r/o V. Mokhra, Tehsil Meham (defendant No.1). The plaintiff immediately obtained a certified copy of alleged sham and bogus sale deed, allegedly executed and registered on 1.1.1992 vide which the 1/2 share in the total suit land belonging to plaintiffs is purported to be transferred to defendant No.l. The document is the result of fraud, impersonation and forgery and is illegal and invalid. It is further averred that the plaintiffs had never agreed to sell their land to defendant No.l and never executed the sale deed in question. They never put their signatures or thumb impressions on the same. Plaintiff No. 1 is an educated lady and always sign in English/Urdu and plaintiff no.2 is graduate, B.Sc. in Agriculture and always signs in English and not in Hindi. The signatures and thumb impressions purported to be those of each plaintiffs are forged and fabricated one. The plaintiffs never appeared before the Sub Registrar nor they accepted or paid the sale consideration for the suit land by defendant No.l or anybody else. Defendant No.l in conspiracy with other defendants must have got the sale deed executed through somebody else through impersonation. The plaintiffs alongwith Jagdish Kumar and Saroj Bala, has always been in possession of the suit land and still are in possession of the same as owners. The plaintiffs asked the defendant No. 1 that he should desist from claiming any right, title or interest in the suit land but in vain. Hence the suit. 3. The plaintiffs alongwith Jagdish Kumar and Saroj Bala, has always been in possession of the suit land and still are in possession of the same as owners. The plaintiffs asked the defendant No. 1 that he should desist from claiming any right, title or interest in the suit land but in vain. Hence the suit. 3. On put to notice, defendants No. 1 and 2 filed joint written statement contesting the suit of the plaintiff on the grounds that plaintiffs have already sold the suit land to defendant No.l and after that plaintiffs have no right, title or interest in the property sold by them. In fact, the plaintiffs at their own, have sold the land to defendant No.1 and received the agreed sale consideration. The document was registered in the office of Sub-Registrar, Rohtak, rightly, legally and validly. Other averments of the plaintiffs were also denied. Other few technical objections were also taken against the plaintiffs. 4. Defendant No.4 was proceeded against ex parte and suit qua defendant No. 3 was dismissed. 5. Replication was not filed. 6. From the pleadings of the parties, following issues were framed:- 1. Whether the impugned sale deed is illegal and inoperative qua the rights of plaintiffs to the extent of 1/2 share in the suit land, as alleged? OPP. 2. If issue No. 1 is proved, whether the plaintiffs are entitled to an injunction order restraining the defendants from alienating the suit land, as alleged? OPP. 3. Whether the suit of the plaintiffs is not maintainable in the present form? OPD 4. Relief. 7. The trial Court held that since plaintiffs could not lead any evidence despite availing three opportunities and as such the suit of the plaintiffs was dismissed under Order 17 Rule 3 CPC. 8. Feeling dissatisfied with the judgment dated 10.6.2005 passed by Sh.H.S. Dahiya, Civil Judge (Senior Division), Rohtak, the plaintiffs preferred the Ist appeal and the same was dismissed vide judgment dated 9.10.2006, passed by Sh. S.S. Lamba, Additional District Judge, Rohtak, upholding the judgment of the trial Court. 9. Still feeling dissatisfied with the judgments dated 9.10.2006 and 10.6.2005, referred to above, the plaintiff-appellants have filed the present regular second appeal. 10. I have heard counsel for both the sides and have also gone through the file of the case. 11. S.S. Lamba, Additional District Judge, Rohtak, upholding the judgment of the trial Court. 9. Still feeling dissatisfied with the judgments dated 9.10.2006 and 10.6.2005, referred to above, the plaintiff-appellants have filed the present regular second appeal. 10. I have heard counsel for both the sides and have also gone through the file of the case. 11. From the submissions made by both the sides, following substantial question of law has arisen in the present case:- 1. Whether the trial Court could have dismissed the suit of the plaintiffs under Order 17 Rule 3 CPC or simply under Order 17 Rule 2 CPC when neither the plaintiffs nor their witnesses were present on 10.6.2005? 12. To properly appreciate the facts of the case, provisions of Order 17 Rule 2 CPC and Order 17 Rule 3 RPC are reproduced 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. [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]. 13. The zimini order dated 10.6.2005 passed by the trial Court is also reproduced to properly appreciate the law point involved in the present case:- "No evidence of plaintiffs is present. 13. The zimini order dated 10.6.2005 passed by the trial Court is also reproduced to properly appreciate the law point involved in the present case:- "No evidence of plaintiffs is present. A perusal of case file shows that plaintiffs have already availed of three effective opportunities including two last opportunities for evidence but failed to do so, hence, evidence of plaintiffs is closed by court order. On the other hand, learned counsel for defendants stated at bar that as the plaintiffs have failed to lead any evidence in support of their case, therefore, he does not want to lead any evidence on behalf of defendants. Heard. Vide my separate judgment of even date, the suit of the plaintiffs is dismissed with costs. Decree sheet be prepared accordingly and file be consigned." 14. So, from the perusal of the same, it is revealed that on 10.6.2005, no evidence of the plaintiffs was present. From the bare perusal of Order 17 Rule 2 and Order 17 Rule 3 CPC, it is revealed that the suit can be decided under Order 17 Rule 3 CPC, if parties are present. Order 17 Rule 3 (b) CPC clearly envisages that if parties or any of them is absent, the Court shall proceed under Order 17 Rule 2 CPC . Order 17 Rule 2 CPC envisages that in case any of the parties fails to appear, the Court can dismiss the suit in default. The Honble Apex Court has dealt this aspect of the case in authority reported as Mohan Das and others v. Ghisia Bai and others, 1 AIR 2002 Supreme Court 2436. The concluding paragraph No. 3 of the said judgment is reproduced as under:- 3. In the present case what we find is neither the plaintiff-appellant nor his witnesses were present on 7th May, 1994. Therefore, the case has to be dismissed under Order XVII, Rule 2. Even Rule 3 itself provides that if the parties or any of them absent, the Court shall proceed to decide the suit under Order XVII, rule 2. In view of the said legal position, we are of the view that the view taken by the Court below was erroneous and deserves to be set aside. We, therefore, set aside the judgment under appeal and sent the case back to the trial Court to decide the matter in accordance with law." 15. In view of the said legal position, we are of the view that the view taken by the Court below was erroneous and deserves to be set aside. We, therefore, set aside the judgment under appeal and sent the case back to the trial Court to decide the matter in accordance with law." 15. In the present case also, the plaintiffs and their witnesses were not present and as such the trial Court could have proceeded under Order 17 Rule 2 CPC by dismissing the suit in default. The authority in Mohan Dass case (Supra), was produced before the Ist Appellate Court, but the Ist Appellate Court has wrongly mentioned that the same is not applicable to the facts of the case on the ground that three opportunities have been granted to the plaintiffs to lead the evidence. The judgment of the Ist Appellate Court is against the law laid down by the Honble Apex Court in Mohan Dass case (Supra). The ratio of the said judgment is that the trial Court could have proceeded under Order 17 Rule 2 CPC when the plaintiffs or his witnesses were not present, although counsel for the plaintiffs was present. The trial Court could have only proceeded under Rule 17 Rule 3 CPC in case plaintiffs or his witnesses have been present. So, both the Courts below have committed illegality by wrongly applying the provisions of Order 17 Rule 3 CPC instead of Order 17 Rule 2 CPC. The question of law raised above stands answered in favour of the appellants, as discussed above. 16. So, in view of the above discussion, the appeal stands accepted. 17. The judgments of both the Courts below stand set aside and the case is remanded back to the trial Court for fresh decision in accordance with law. 18. Parties are directed to appear before the trial Court on 25.8.2010. The files of the Courts below be sent well before that date, if summoned.