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2011 DIGILAW 38 (CHH)

Sunny Hasbil v. Hitesh Kumar Patel

2011-02-02

I.M.QUDDUSI, PRASHANT KUMAR MISHRA

body2011
ORDER I.M. Quddusi, J. 1. Heard. 2. This appeal has been filed against the dismissal of the claim petition preferred under Section 166 read with Section 140 of the Motor Vehicles Act, 1988 (henceforth 'the Act'). The Claims Tribunal, while closing the evidence of the claimant under Order 17 Rule 3 of the Code of Civil Procedure, 1908 (henceforth 'the Code'), dismissed the claim petition with costs for want of evidence vide impugned order dated 26-6-2006. 3. We need not discuss the facts of the case at this stage except the following: The claim petition was filed by the Appellant, who was injured due to the accident took place on 30-4-2002. The Claims Tribunal granted time to produce evidence. Once medical officer remained present to prove the permanent disability certificate, but the certificate was not available on record as it was not filed by the claimant. Anyhow, on 26-6-2006, an application was moved on behalf of the claimant to adjourn the case. It is pertinent to mention here that when the case was called out for hearing on 26-6-2006, none was present for non-claimants/Respondents No. 1 and 2 and the name of non-claimant/Respondent No. 3 was already deleted, therefore, two Respondents, i.e., non-claimants/Respondents No. 1 and 2 were absent. In such a situation, the learned Claims Tribunal decided to close the evidence without rejecting the application for adjournment moved on behalf of the claimant and dismissed the claim petition with costs, however, in next paragraph, it is mentioned that the parties shall bear their own costs. 4. Before proceeding further, it is necessary to peruse the provisions of Order 17 Rule 3 of the Code, which read thus: Order 17 Rule 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. 5. 5. A bare perusal of the above-quoted provisions will show that under Clause (a) of Rule 3 of Order 17 of the Code, the order can be passed only in a situation if the parties are present, but in case the parties are, or any of them is, absent, the Court had to proceed under Rule 2 of Order 17 of the Code only and in that situation the Plaintiff or the claimant would be entitled to move an application under Order 9 of the Code. In such a situation, the provisions of Rule 2 of Order 17 of the Code would be applicable and the suit can be disposed of in one of the modes directed in that behalf by Order 9 of the Code. 6. In the instant matter, non-claimants/Respondents No. 1 and 2 were not present, therefore, there was no question of applicability of Clause (a) of Rule 3 of Order 17 of the Code and only Clause (b) of Rule 3 of Order 17 of the Code could be made applicable and the order was liable to be passed only in Clause (b). In B. Janakiramaiah Chetty v. A.K. Parthasarthi and Ors. AIR 2003 SC 3527, the Hon'ble Supreme Court has laid down principles in paragraphs 9 and 10 as under: 9. The Explanation permits the Court in its discretion to proceed with a case 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. As the provision itself shows, discretionary power given to the Court to be exercised in a given circumstances. For application of the provision, the Court has to satisfy itself that (a) substantial portion of the evidence of any party has been already recorded; (b) such party has failed to appear on any day and (c) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the Court to adopt any of the modes provided in Order IX 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. Rule 2 permits the Court to adopt any of the modes provided in Order IX 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 evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the Court may in its discretion deem as if such party was present. Under Order IX, Rule 3 the Court may make an order directing that the suit be dismissed when neither party appears when the suit is called on for hearing. There are other provisions for dismissal of the suit contained in Rules 2, 6 and 8. We are primarily concerned with a situation covered by Rule 6. The crucial words in the Explanation are 'proceed with the case'. Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the Court or not. 10. In Rule 2, the expression used is "make such order as it deems fit", as an alternative to adopting one of the modes directed in that behalf by Order IX. Under Order XVII, Rule 3(b), only course open to the Court is to proceed under Rule 2. When a party is absent, explanation thereto gives a discretion to the Court to proceed 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 in 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 any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the Court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present. 7. In view of the above mentioned facts and circumstances of the case and the law laid down by the Hon'ble Supreme Court in B. Janakiramaiah Chetty v. A.K. Parthasarthi and Ors. AIR 2003 SC 3527 (supra), the impugned order, dismissing the claim petition, is not sustainable in the eye of law. Therefore, we allow this appeal in part, set aside the impugned order and remit the matter back to the Claims Tribunal to take a fresh decision. The parties shall appear before the Claims Tribunal on 28th February, 2011. It will be open for the parties to amend their pleadings, adduce evidence, file documents or get the documents verified for which adequate opportunity shall be given to the parties and thereafter the decision shall be taken afresh. 8. Needless to mention that non-claimant/Respondent No. 3 which was not a party before the Claims Tribunal need not appear before it, however, this will not debar the claimant or any other party to move for impleadment of the non-claimant/Respondent No. 3 as party. There shall be no order as to costs.