Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 1007 (MP)

Har Prasad v. Maniram

2015-09-22

VANDANA KASREKAR

body2015
ORDER : Vandana Kasrekar, J. The petitioners have filed this Civil Revision challenging the order dated 25.04.2013 passed by Additional District Judge, Amarpatan, District Satna in Civil Appeal No. 17/2012 thereby affirming the order dated 10.05.2012 passed by Civil Judge Class-II, Amarpatan, District Satna in MJC No. 01/2012. 2. Brief facts of the case are that, the applicants had filed a suit for permanent injunction against the respondents restraining the respondents/defendants from raising any construction over the land which was in front of his shopping complex admeasuring to 12 x 15 feet. 3. On 09.07.2009 the case was fixed for plaintiffs' evidence and on that date neither the plaintiffs nor their witnesses were present and an application was filed under Order 17, Rule 1 of the C.P.C. for adjournment. 4. The trial Court vide its order dated 09.07.2009 has rejected the said application and while rejecting the said application it was stated by the trial Court that the said order was passed by exercising the powers under Order 17, Rule 3 of the C.P.C. 5. The applicants thereafter, filed an application under Order 9, Rule 9 of the C.P.C for setting aside the order. It has been stated in the application that the Court ought to have exercised its power as prescribed under Order 17, Rule 2 of the C.P.C. 6. The trial Court vide order dated 10.05.2012 has dismissed the application filed by the applicants under Order 9, Rule 9 of the C.P.C as not maintainable and the trial Court has observed that the applicants should have filed an appeal against the said order. Being aggrieved by the order dated 10.05.2012 the applicants have preferred an appeal, which was dismissed by the Appellate Court vide order dated 25.04.2013. The appellate Court has affirmed the order passed by the Trial Court and submits that the application under Order 9, Rule 9 of the C.P.C was not maintainable. 7. The learned counsel for the applicants argues that the trial Court has acted illegally or with material irregularity in rejecting the application for setting aside the order dated 09.07.2009. The appellate Court has affirmed the order passed by the Trial Court and submits that the application under Order 9, Rule 9 of the C.P.C was not maintainable. 7. The learned counsel for the applicants argues that the trial Court has acted illegally or with material irregularity in rejecting the application for setting aside the order dated 09.07.2009. He submits that the trial Court should have passed an order under Order 17, Rule 2 of the C.P.C instead under Order 17, Rule 3 of the C.P.C. He further argues that the Courts below have adopted hyper-technical approach in rejecting the application filed by the applicants and merely because of wrong provision of law was mentioned in the application the same should not have been rejected and an opportunity to correct the same should have extended to him. He relied on the Full Bench Judgment passed by this Court in the case of Ram Rao and Others v. Shantibai and Others, 1977 JLJ 147 . 8. On the other hand, the learned counsel appearing for the respondents supports the order passed by the trial Court as well as the Appellate Court. He argues that the Appellate Court as well as the Provisional Court has not committed any error in rejecting the application. He further submits that the Appellate Court can decide the correctness of the order only with reference to that provision and the appellate Court can not treat the dismissal under Order 17, Rule 2 of the C.P.C without specific provision has been mentioned by the trial Court itself. For the said preposition he relies on the two judgments passed by this High Court in the case of Govardhan Badrilal Mahajan and Another v. Ganesh Balkrishna Deshmukh, 1962 MPLJ 325 and Maruti Damaji Ashtinkar v. Gangadhar Rao Kher, 1964 MPLJ 919. 9. I have heard learned counsel for the parties and perused the record. Order 17 Rules 2 and 3 is 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 9 or make such other order as it think 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. 10. Order 17, Rule 2 provides for procedure if the parties fail to appear on the date which is faxed by the Court and as per this rule where, on the date to which the hearing of the suit is adjourned, the parties or any of them fail to appear, then the Court may proceed to disposed of the suit in one of the modes directed in that behalf by order IX. 11. Rules 3 of the said order provides the procedure when the parties to a suit fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary for the purpose of the suit, then the trial Court can proceed to decide the suit forthwith or to any party proceed under rule 2. 12. From perusal of the order it is clear that the trial Court has passed the order by dismissing the suit under Order 17, Rule 3 of the C.P.C as the plaintiffs' have failed to produced the evidence. As the suit was dismissed under Order 17, Rule 3 of the C.P.C only remedy lies to the applicants to file an appeal against the said order. 13. The Full Bench judgment relied on by learned counsel for the applicants is not applicable in the present case, as the judgment in the case of Ram Rao and Others (supra) has been passed under Order 17, Rule 2 of the C.P.C. 14. 13. The Full Bench judgment relied on by learned counsel for the applicants is not applicable in the present case, as the judgment in the case of Ram Rao and Others (supra) has been passed under Order 17, Rule 2 of the C.P.C. 14. While in the present case the trial Court has passed the order under Order 17, Rule 3 of the C.P.C and, therefore, as per the judgment relied on by the learned counsel for the respondents in the case of Govardhan Badrilal Mahajan and Another (supra) and Maruti Damaji Ashtinkar (supra), it has been held that when an order is passed under the specific provision of law then the Appellate and Revisional Court can decide its correctness only with reference to this provisions. 15. In the light of the said judgment, as in the present case the trial Court has dismissed the suit by exercising the powers under Order 17, Rule 3 of the C.P.C and, therefore, the said order cannot be treated as an order under Order 17, Rule 2 of the C.P.C as held by this Court in the case of Govardhan Badrilal Mahajan (supra) which is read as under:- "Civil Procedure Code (1908), O. 17, Rr. 2, 3 and O. 9, Rr. 8, 9 - Order passed under specific provision of law-Appellate or revisional Court can decide its correctness only with reference to that provision-Dismissal of suit for default-Decree drawn up under Order 17, Rule 3 even though provisions of Order 17, Rule 2 were more appropriate-Appellate Court cannot treat dismissal as one under Order 9, Rule 8 read with Order 17, Rule 2 and set it aside under Order 9, Rule 9." 16. The judgment relied by the respondents in the case of the Maruti Damaji Ashtinkar (supra) in paragraph 5 is read as under:- "5. When the trial Judge expressly passed an order under Order 17, Rule 3 dismissing the suit although it had no power to proceed thereunder and acted erroneously in doing so, the plaintiff's only remedy was no doubt of filing the appeal which he did in the Court of the Additional District Judge, Jabalpur........" 17. In the said judgment the Single Judge of this Court has held that the trial Court has expressly passed an order under Order 17, Rule 3 of the C.P.C thereby, dismissing the suit. In the said judgment the Single Judge of this Court has held that the trial Court has expressly passed an order under Order 17, Rule 3 of the C.P.C thereby, dismissing the suit. Although, it has no power to proceed thereunder and acted erroneously in doing so. The only remedy available to the plaintiffs is to file an appeal. Thus in the light of the judgment of trial Court as well as the Appellate Court have not committed any error in dismissing the application filed by the applicants on the ground that the same is not maintainable and only remedy lies to the applicants to file an appeal against the said order. Thus, no illegality or irregularity has been committed by the trial Court as well as the Appellate Court in passing the said order. 18. Thus the revision fails and is hereby dismissed without any order as to costs.