Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 3798 (ALL)

Ram Shabad v. Ram Ratti

2015-12-03

MAHENDRA DAYAL

body2015
JUDGMENT Mahendra Dayal, J. This second appeal was admitted on 17.04.2014 on a substantial question of law as to whether the learned trial court passed the judgment on merit without hearing the parties or without evaluating their evidence in their absence and recorded evidence on issues suo-motu. 2. Heard Shri R.K. Sharma, learned counsel for the appellant and learned counsel appearing for the respondents. 3. The brief facts necessary for disposal of this second appeal are that plaintiff-appellant filed a suit for permanent injunction against the respondents to which the respondents filed their written statement and thereupon the learned trial court framed proper issues. However, when the date was fixed for evidence of the plaintiff-appellant, he neither appeared nor sought time for giving evidence. Consequently, evidence of the plaintiff-appellant was closed and further date was fixed for evidence of the defendant-respondents. On the said date, learned counsel for the parties were present, but the defendant-respondents neither sought time nor produced their evidence and consequently their evidence was also closed. A perusal of the record of lower court reveals that on the same date, learned trial court heard the counsel and reserved the case for judgment. Thereafter by the impugned judgment and decree dated 09.05.2005, the suit was dismissed. 4. Feeling aggrieved by the judgment and decree passed by the learned trial court, the plaintiff-appellant preferred a time barred appeal before the District Judge, Ambedkar Nagar along with an application under Section 5 of the Limitation Act for condonation of delay. The defendant-respondents filed objections against the application for condonation of delay and the learned District Judge by the impugned order dated 02.03.2013 rejected the application for condonation of delay on the ground that the delay has not been sufficiently explained by the plaintiff-appellant. 5. Shri R.K. Sharma, learned counsel for the appellant has contended that the learned trial court has committed material irregularity and has illegally passed the impugned judgment on merit when there was absolutely no evidence on record. The learned trial court treated the pleadings of the parties as evidence and recorded its findings on each issue. On the basis of the findings recorded, the suit of the plaintiff-appellant was dismissed. Since the plaintiff-appellant was suffering from serious heart ailment, he shifted to Ahemdabad for treatment. The learned trial court treated the pleadings of the parties as evidence and recorded its findings on each issue. On the basis of the findings recorded, the suit of the plaintiff-appellant was dismissed. Since the plaintiff-appellant was suffering from serious heart ailment, he shifted to Ahemdabad for treatment. Therefore, the appeal could not be filed within time and when the appeal was filed in the Court of District Judge with the prayer to condone the delay, the learned District Judge rejected his application on the ground that the plaintiff-appellant has failed to explain the delay sufficiently. 6. The contention of the learned counsel for the appellant is that when a party appears or does not appear and in a case where either party fails to produce evidence, the provision of Order 17 Rules 2 and 3 CPC are attracted. Rule 2 of Order 17 CPC provides that where on any date 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 of the Code or make such other order as it thinks fit. 7. Rule 3 of Order 17 CPC provides that 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 or any of them is absent, proceed under Rule 2. 8. The argument on behalf of the appellant is that when both the parties failed to produce evidence in spite of opportunity to produce the evidence, the Court had two options either to decide the suit if the parties are present or proceed under Order 2 if one or any one of the parties are absent. In the present case the proper course for the trial court was to dismiss the suit under Order 9 CPC because neither the parties were present nor they had produced any evidence. The decision on issues without there being any evidence was not at all justified. In the present case the proper course for the trial court was to dismiss the suit under Order 9 CPC because neither the parties were present nor they had produced any evidence. The decision on issues without there being any evidence was not at all justified. Learned trial court was not competent to treat the pleadings of the parties as evidence and record findings only on the basis of pleadings of the parties. The result of such illegality is that the appellant is precluded to file another suit because the findings recorded by the court below would operate as res-judicata against him. 9. Learned counsel for the respondents has argued that the learned District Judge has not committed any error or illegality in rejecting the application for condonation of delay because the Court did not find any sufficient ground to condone the delay. With regard to the judgment and decree passed by the learned trial court, the submission of the learned counsel for the respondents is that Clause (a) of Rule 3 of Order 17 CPC empowers the Court to decide the suit even in the absence of evidence provided the parties are present. Learned counsel has referred to the order-sheet of the learned trial court which makes it clear that on 30.04.2005 when the case was fixed for evidence of the defendant, the counsel for both the parties were present. Thus, in the presence of the counsel for the parties, the Court could not proceed under Rule 2 of Order 17 CPC. Although the parties did not produce any evidence in support of their cases but Clause (a) of Rule 3 of Order 17 CPC empowers the Court to decide the suit forthwith if the parties are present. The learned trial court has, therefore, not committed any illegality in proceeding under Clause (a) as referred to above. Learned counsel has further submitted that during the pendency of the trial, a commission was also issued and the report of the Commissioner was also on record which was taken into consideration by the court while recording findings on different issues. In these circumstances, it cannot be said that the learned trial court acted illegally in deciding the suit on merit. 10. In these circumstances, it cannot be said that the learned trial court acted illegally in deciding the suit on merit. 10. Learned counsel for the respondents has relied upon one Hon'ble Supreme Court's decision reported in 2003 SCC Page 641 in which the Hon'ble Supreme Court has held that in case failure of a party to appear on a date of hearing, the Court has discretion to proceed with the case on being prima-facie satisfied on facts of the case that evidence on record is sufficient to substantiate the stand of the parties, who is absent. On the basis of the observations made by Hon'ble the Supreme Court, the submission of the learned counsel for the respondents is that the judgment and decree passed by the learned trial court is in accordance with the provision of Rule 3 of Order 17 CPC as well as law laid down by Hon'ble the Supreme Court in the case referred to above. 11. Upon hearing learned counsel for the parties and on perusal of the record of lower court, it has not been disputed that except the report of the Commissioner, there was absolutely no material on record as both the parties had not produced any evidence in support of their cases. It is also not disputed that on the date when the Court proceeded to decide the suit, counsel for the parties were present. In these circumstances, there was no occasion for the court to proceed under Rule 2 of Order 17 CPC. The Court could have proceeded under Clause (a) of Rule 3 of Order 17 CPC, but it cannot be denied that the suit can only be decided on the basis of material on record and the evidence of the parties. The pleadings of the parties cannot be treated as evidence. So far as the Commissioner report is concerned, the same is also not a substantive peace of evidence. The purpose of issuing a commission for spot inspection is only to assist the Court to arrive at a correct finding but the commission report is considered in the light of the oral evidence of the parties. 12. So far as the Commissioner report is concerned, the same is also not a substantive peace of evidence. The purpose of issuing a commission for spot inspection is only to assist the Court to arrive at a correct finding but the commission report is considered in the light of the oral evidence of the parties. 12. In the present case, a perusal of the judgment passed by the learned trial court reveals that the learned trial court has recorded its findings only on the basis of pleadings of the parties and the Commissioner report which was not within his jurisdiction. It is also very strange that none of the parties adduced any evidence before the Court and they submitted their arguments upon which the Court proceeded to decide the case when there was absolutely no evidence on record of the court below. What the learned counsel argued before the learned trial court, is also not clear from the judgment of the court below. When there was no material before the court, the proper course for the trial court was to dismiss the suit for want of evidence instead of deciding the suit on merit after recording specific findings on issues. 13. In view of discussions made hereinabove, I am of the view that the judgment and decree of the learned trial court being without jurisdiction is liable to be set aside and the second appeal deserves to be allowed. The substantial question of law as formulated in the second appeal is answered in the manner that the court below passed the impugned judgment and decree on merit without there being any evidence on record. 14. In the result, the second appeal succeeds and is allowed. The judgment and decree passed by the learned court below in Regular Suit No.104/1994 decided on 09.05.2005 is hereby set aside and the suit filed by the plaintiff-appellant for permanent injunction against the defendant-respondents is dismissed for want of evidence of the parties. 15. The parties shall bear their own costs.