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2016 DIGILAW 651 (RAJ)

Gyarsi Lal v. Prabhu

2016-05-09

PRASHANT KUMAR AGARWAL

body2016
ORDER : Prashant Kumar Agarwal, J. The plaintiff-appellants have filed this Civil Misc.Appeal under Section 104 read with Order 43, Rule 1 (c) C.P.C. against the order dated 17.9.2012 passed by the Additional District Judge No.2, Jaipur District, Jaipur in Civil Misc. Application No.35/2002 whereby the learned Court below dismissed the application under Order 9, Rule 9 C.P.C. filed by the appellants as not maintainable which was filed against the order and decree dated 10.7.2002 passed in Civil Suit No.11/1999 whereby the learned trial Court dismissed the suit filed by the appellants on the ground that they failed to produce evidence on their behalf. 2. Brief relevant facts for the disposal of this appeal are that Civil Suit No.11/1999 came to be filed by the appellants for specific performance of agreement, declaration and permanent injunction against the respondents in the trial Court. The aforesaid suit was fixed by the trial Court on 10.7.2002 for production of evidence on behalf of the appellants but on the date so fixed no evidence was produced on their behalf. Learned trial Court dismissed the suit by observing that the appellants have failed to produce their evidence despite the fact that several opportunities have been given to them. It is to be noted that decree was also prepared by the trial Court in this regard. Against the order dated 10.7.2002 the aforesaid Civil Misc. Application No.135/2002 under Order 9, Rule 9 C.P.C. was filed by the appellants on the same date i.e. 10.7.2002 with a prayer to restore the aforesaid suit to its original number. Reply to the application was filed by the respondents but came to be dismissed by way of impugned order on the ground that the suit filed by the appellants was dismissed vide order and decree dated 10.7.2002 on the ground that appellants failed to produce their evidence and not in their absence and, therefore, application for restoration of the suit is not maintainable. It was further observed by the Court below that the appropriate remedy against the order and decree dated 10.7.2002 is by way of appeal. 3. It is to be noted that prior to the present appeal, appellants filed S.B.Civil Regular First Appeal No. 570/2012 against the order dated 10.7.2002 and 17.9.2012 but the same was dismissed as withdrawn by the High Court vide order dated 9.1.2013 with liberty to file proper proceedings for challenging the aforesaid orders. 3. It is to be noted that prior to the present appeal, appellants filed S.B.Civil Regular First Appeal No. 570/2012 against the order dated 10.7.2002 and 17.9.2012 but the same was dismissed as withdrawn by the High Court vide order dated 9.1.2013 with liberty to file proper proceedings for challenging the aforesaid orders. It is in these circumstances the present appeal has been filed. 4. It was submitted by the learned counsel for the appellants that on 10.7.2002 when the suit filed by the appellants was dismissed, neither any of the appellants nor their counsel was present in Court when the case was called by the Court and, therefore, the Court had no alternate but to dismiss the suit in default under Order 17, Rule 2 C.P.C. and it was wrong on its part to dismiss the suit by the reason that evidence was not produced by the appellants on that date. It was further submitted that if a suit is dismissed in default even at the stage of recording of evidence, provisions of Order 9, Rule 9 C.P.C. would be applicable and such suit can to be restored to its original number if sufficient cause is shown by the plaintiff for his absence but the learned Court below dismissed the application filed by the appellants as not maintainable without considering the cause shown by the appellants for their absence. 5. Inviting attention towards the contents of application dated 10.7.2002 filed on behalf of appellants, it was also submitted that when the case was called by the trial Court neither appellants or their counsel was present in the Court and, therefore, it was wrong on the part of the Court to dismiss the suit on the ground that evidence was not produced on their behalf. It was submitted that as the first appeal filed by the appellants has been dismissed as withdrawn, the appellants would stand remedyless if the impugned order is sustained by this Court. 6. On consideration of submissions made on behalf of the appellants and having regard to the material made available on record and more particularly looking to the reasons recorded by the Court below in support of the impugned order dated 17.9.2012, I do not find any illegality or perversity in the same requiring interference by this Court. 6. On consideration of submissions made on behalf of the appellants and having regard to the material made available on record and more particularly looking to the reasons recorded by the Court below in support of the impugned order dated 17.9.2012, I do not find any illegality or perversity in the same requiring interference by this Court. From the order dated 10.7.2002, it is more than clear that the suit was fixed for production of evidence on behalf of the appellants and when the case was called counsel for both the parties were present but no witness was present on behalf of the appellants and, therefore, suit was dismissed by trial Court observing that the appellants have failed to produce their evidence despite the fact that opportunity has been given to them. As already said, decree was also prepared by the Court in this regard. In the light of order dated 10.7.2002, this submission made on behalf of the appellants cannot be accepted that when the case was called neither appellants nor their counsel was present in the Court and, therefore, at the most the suit could have been dismissed in default. Impugned order shows that every aspect of the matter including whether suit was dismissed under Rule 2 or Rule 3 Order 17 C.P.C. was properly considered by the trial Court. It cannot be disputed that if a suit is dismissed under Order 17, Rule 3 C.P.C. in the presence of the parties on the ground that evidence has not been produced by the plaintiff, remedy lies in appeal and not in restoration of the suit. It is to be noted that the first appeal was filed by the appellants in the year 2012 against the aforesaid both the orders and they were permitted to withdraw the same for which the appellants must blame themselves. Consequently, the appeal being meritless is, hereby, dismissed. The stay application also stands dismissed.