Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 1628 (RAJ)

Ghisaram v. Amba Devi

2014-10-08

ARUN BHANSALI

body2014
JUDGMENT : This appeal under Section 96 CPC is directed against the judgment and decree dated 24.03.2014 passed by the District Judge, Pali, whereby, the suit filed by the plaintiff-appellant has been dismissed. The plaintiff Ghisaram filed the suit for cancellation of sale deed executed on 22.03.1980 and registered on 14.04.1980 and for permanent and mandatory injunction. A written statement was filed by the defendant No.1 denying the averments contained in the plaint. No written statement was filed by defendant Nos. 2 & 3. Based on the averments made by the parties, the trial court framed as many as five issues. The plaintiff was afforded several opportunities to lead evidence, however, none of the witnesses was present and, therefore, opportunity was granted on 20.09.2013 on costs and when no one appeared, on 18.11.2013 the evidence of the plaintiff was closed. On 19.03.2014, the defendants also closed their evidence without producing any witness and the suit was fixed for final arguments on 20.03.2014. On 20.03.2014, plaintiff's counsel pleaded no instructions. Where after, the trial court after hearing the arguments of counsel for the defendants, decided the suit issue wise and for lack of evidence, decided issue No.1 against the plaintiff and issue Nos. 2, 3 & 4 against the defendants and, consequently, dismissed the suit. Feeling aggrieved, the present appeal has been filed by the appellant-plaintiff Ghisaram. Show cause notice was issued to the respondents and record of the trial court was summoned. At the request of learned counsel for the parties, the appeal has been finally heard. It is submitted by learned counsel for the appellant that though it appears from record that the appellant was granted several opportunities, however, factually the appellant being an aged and illiterate labourer, who is working far off at Gandhidham Kandla Port had no information regarding the suit being fixed for plaintiff's evidence and, where after, the counsel pleaded no instruction, regarding which the appellant-plaintiff was not given any notice by the counsel/court. It was further submitted that in any case the trial court was not justified in dismissing the suit on merits. It was prayed that the impugned judgment and decree be set aside and appellant be provided opportunity to lead evidence. It was further submitted that in any case the trial court was not justified in dismissing the suit on merits. It was prayed that the impugned judgment and decree be set aside and appellant be provided opportunity to lead evidence. Learned counsel for the respondents vehemently submitted that in view of the conduct of the appellant in not appearing on several occasions before the trial court, he is not entitled for grant of any relief by this Court and the appeal deserves to be dismissed on account of conduct of the appellant during the trial of the suit. I have considered the rival submissions and have perused the impugned judgment as well as the record of the trial court. From the perusal of record, it is apparent that the appellant was provided several opportunities to lead evidence, whereby, the suit was fixed for his evidence on 19.08.2011 and after adjourning it on several occasions, last opportunity was granted on 20.09.2013 on payment of cost of Rs.500/-and the right to lead evidence was, ultimately, closed on 18.11.2013. The counsel appearing for the plaintiff pleaded no instructions on 20.03.2014 and on the same date, the arguments were heard by the trial court and, ultimately, the suit was decreed on 24.03.2014. From the sequence of events noticed hereinbefore, when on 20.03.2014, the counsel for the plaintiff pleaded no instructions, either the trial court should have issued show cause notice to the plaintiff, as from the record it does not appear that before pleading no instructions, the counsel had issued any notice to the plaintiff or in any case, it should have dismissed the suit for default on part of the plaintiff. Provisions of Order XVII, Rule 2 & 3 CPC 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. [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].” Provisions of Order IX, Rule 8 CPC reads as under:- “8. Procedure where defendant only appears.– Where the 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 part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.” A bare look at the above provisions would reveal that where on the date fixed 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 order as it thinks fit. Explanation to Rule 2 of Order XVII CPC provides that where the evidence or a substantial portion of evidence of any party has been recorded, the Court may proceed with the case as if such party were present. Rule 3 provides that if the party fails to produce evidence etc. despite opportunities, if the parties are present it can decide the suit or if the parties or any one of them is, absent, proceed under Rule 2. Rule 3 provides that if the party fails to produce evidence etc. despite opportunities, if the parties are present it can decide the suit or if the parties or any one of them is, absent, proceed under Rule 2. Under Rule 8 of Order IX CPC where the defendant appears and the plaintiff does not appear, the provision mandates the Court to make an order for dismissal of the suit unless the defendant admits the claim. In the present case the explanation to Rule 2 of Order XVII CPC has no application at all as admittedly evidence of the plaintiff had not been recorded. Further in view of the mandate of Order IX, Rule 8 CPC, it is apparent that the court under the said Rule cannot inquire into the merits of the case. Even Rule 3 of Order XVII, as the counsel had pleaded no instruction and the plaintiff was absent, had no application. From the above discussion, it is apparent that the only course open for a court on account of non-appearance of plaintiff unless the case falls within explanation to Rule 2 of Order XVII CPC or the defendant admits the claim, is to dismiss the suit and it cannot proceed to decide the same on merits. In view of the above discussion, the decree passed by the trial court cannot be sustained. Coming to the prayer made by learned counsel for the appellant regarding providing an opportunity to lead evidence to the plaintiff, from the record, it is apparent that sufficient opportunity was granted by the trial court, however, looking to the status of the plaintiff, who is said to be an old, illiterate and rustic villager, in the interest of justice, it would be appropriate to grant him one more opportunity to produce his entire evidence before the trial court. As the defendant has been forced to contest the litigation for an extended period of time before the trial court for nonappearance of the plaintiff and to appear before this Court, the appellant would be liable to pay costs of Rs.7,500/-to the defendant No.1. Consequently, in view of the above discussion, the appeal is allowed. The impugned judgment and decree dated 24.03.2014 passed by District Judge, Pali is set aside. Consequently, in view of the above discussion, the appeal is allowed. The impugned judgment and decree dated 24.03.2014 passed by District Judge, Pali is set aside. The order dated 18.11.2013 closing the evidence of the appellant-plaintiff is also set aside and the matter is remanded back to the trial court to proceed from the stage of evidence of the plaintiff. The parties shall remain present before the trial court on 21.11.2014, on which date the appellant-plaintiff would produce all his witnesses. It would be required of the appellant-plaintiff to make payment of the costs to the defendant No.1/counsel for the defendant No.1 on or before 21.11.2014. Record be sent back to the trial court immediately.