Research › Search › Judgment

Chhattisgarh High Court · body

2010 DIGILAW 88 (CHH)

ASHOK KUMAR v. NAGAR PALIK NIGAM

2010-03-15

N.K.AGARWAL

body2010
ORDER As per Hon'ble Shri N.K. Agarwal, J. :- 1. The instant first appeal under Section 96 of C.P.C. is directed against the order dated 28-2-2003 passed by IInd Additional District Judge, Durg in Civil Suit No. 6-A/2001 whereby and whereunder the appellant's/ plaintiff's suit has been dismissed for want of proof under Order 17 Rule 3 of C.P.C. 2. Brief facts of the case areas under:- 3. The appellant/plaintiff had filed a suit claiming relief of declaration, permanent injunction as well as for execution of sale deed in plaintiffs favour. The trial Court framed various issues on 10-1-2002. Thereafter the case was fixed for plaintiff's evidence on 28-2-2003. On 28-2-2003, neither plaintiff nor his witnesses were present before the Court. The counsel appearing on behalf of the plaintiff/appellant sought adjournment on the ground that the plaintiff is out of station. Prayer was opposed by the respondent's counsel. Learned trial Court after recording a finding that despite having several opportunities to adduce evidence, the plaintiff failed to adduce any evidence and since the suit is an old one and last chance was given to the plaintiff for producing his witnesses, thus it would not be in the interest of justice to grant him further time and dismissed the suit under Order 17 Rule 3 of C.P.C. and thereafter vide this Court's direction dated 9-12-2005, a decree has also been drawn by the Court below. 4. Shri M.K. Bhaduri, learned counsel for the appellant would submit that indisputably on the date fixed for evidence i.e. 28-2-2003, neither plaintiff nor his witnesses were present before the Court. It is also not in dispute that till then evidence was yet to begin and therefore, in such cases, learned trial Court has erred in dismissing the suit under Order 17 Rule 3 of C.P.C. As per him, the suit ought to have been dismissed by the trial Court under Order 17 Rule 2 of C.P.C. 5. On the other hand, Shri H.B. Agrawal, learned Sr. counsel and Smt. Renu Kochar, learned counsel appearing for the respondents supported the under and contended that the appellant was grossly negligent in prosecuting his suit. Despite several opportunities, he did not adduce any evidence and as such the trial Court has rightly dismissed the suit under Order 17 Rule 3 of C.P.C. 6. counsel and Smt. Renu Kochar, learned counsel appearing for the respondents supported the under and contended that the appellant was grossly negligent in prosecuting his suit. Despite several opportunities, he did not adduce any evidence and as such the trial Court has rightly dismissed the suit under Order 17 Rule 3 of C.P.C. 6. I have heard learned counsel for the parties and perused the order impugned and record of the Court below. 7. The scope and ambit of the Order 17 Rule 2 and 3 falls for determination in this appeal. Order 17 Rules 2 and 3 of C.P.C. read thus:- "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. 8. Order 17 Rule 2 of C.P.C. permits the Court to adopt any mode provided in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. 8. Order 17 Rule 2 of C.P.C. permits the Court to adopt any mode provided in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the Court to act under the specified circumstance i.e. where evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appeal on any day to which the hearing of the suit is adjourned. If such is the factual situation, the Court may, in its discretion deem that such party was present. Under Order 9 Rule 8 of C.P.C. if defendant appears and the plaintiff does not appear, when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim or part thereof, in which case, the Court shall pass a decree against the defendant upon such admission and, where only part of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. In Rule 2, expression used is "make such order as it thinks fit", as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3 (b), the only course open to the Court is to proceed under Rule 2, when a party is absent. If Order 17 Rule 3(b) is read with explanation to Order 17 Rule 2, it would be clear that the explanation gives discretion to the Court to proceed with the case under rule 3, even if a party is absent But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the Court has no option but to proceed as provided under Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the Court to decide the suit forthwith. The basic distinction between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter, the party though present has committed anyone or more of the enumerated defaults. The explanation to Rule 2 is in the nature of a deeming provision when under given circumstances, the absentee party is deemed to be present. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The Court while acting under the explanation, may proceed with the case if that prima facie is the position. Therefore, a conjoint reading of expression "make such order as it thinks fit" and the explanation to Rule 2 would mean the Court may proceed to dispose of the suit if evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit, otherwise the Court has to dismiss the suit under Order 9 of C.P.C. 9. Indisputably, in the present case, the plaintiff and his witnesses were absent. The plaintiff was represented by his counsel, sought adjournment, which was refused, evidence of parties was yet to begin and, therefore the deeming provision under the explanation is not available. Order 17 Rule 2 of C.P.C. permits the Court to dismiss the suit under Order 9 of C.P.C., when on any day to which the hearing of the suit is adjourned, the party or any of them failed to appear. Under Order 17 Rule 3 of C.P.C. where any party and his witnesses are absent on the day when the suit is adjourned for recording evidence, then also the Court has to proceed under Order 17 Rule 2 of C.P.C. 10. Order 3 of C.P.C. authorizes an advocate to plead on behalf of a party. Under Order 17 Rule 3 of C.P.C. where any party and his witnesses are absent on the day when the suit is adjourned for recording evidence, then also the Court has to proceed under Order 17 Rule 2 of C.P.C. 10. Order 3 of C.P.C. authorizes an advocate to plead on behalf of a party. Certainly, he cannot adduce evidence on behalf of a party and, therefore, for the purpose of Order 17 Rule 3, appearance of counsel cannot be said to be appearance of a party and, therefore, it cannot be said that since the Advocate had appeared for seeking adjournment, then his presence would be the presence of the party and, therefore, the suit has not been dismissed under Order 17 Rule 2 of C.P.C. but has been dismissed under Order ,17 Rule 3 (a) of C.P. C. amounting to decree. 11. Almost identical facts fell for consideration of the Supreme Court in case of Mohandas and others Vs. Ghisia Bai and others-1 in which on the date when the case was fixed for evidence, the counsel for plaintiff/appellant moved an application for a short adjournment which was rejected, then again, counsel for the plaintiff moved an application under Order 17 Rule 1 of C.P.C. on the ground that the plaintiff is seriously ill and, therefore, the case may be adjourned, the said application was also rejected, thereafter the trial Court dismissed the suit under Order 17 Rule 3 of C.P.C., there-against, an appeal was preferred and the case was remanded back by the Supreme Court holding that the order passed was not under Order 17 Rule 3 but was under Order 17 Rule 2 of C.P.C. The Supreme Court in para 3 of its judgment has observed as under:- 1 AIR 2002 SC 2436 "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. 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." 12. In the light of the dictum of Supreme Court in the above referred case and in view of the fact that the plaintiff and his witnesses were absent as aforesaid, I have no hesitation to hold that the trial Court has erred in dismissing the suit under Order 17 Rule 3 of C.P.C. The case has to be dismissed under Order 17 Rule 2 of C.P.C. Even Rule 3 provides that if parties are, or any of them is, absent, the Court shall proceed to decide the suit under Order 17 Rule 2 of C.P.C. 13. For the foregoing, the trial Court's order being erroneous deserves to be and is hereby set aside. The order under appeal is remitted back to the trial Court to decide the matter in accordance with law. 14. The appeal is allowed. 15. There shall be no order as to costs. 16. Record of the trial Court be sent back forthwith. Appeal Allowed.