Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 26 (MP)

Prathvi Raj Singh v. Krishan Gopal

2017-01-04

S.K.AWASTHI

body2017
ORDER : S.K. Awasthi, J. This civil revision under Section 115 of CPC has been filed by the applicants against the order dated 17.06.2013 passed by Second Additional District Judge, Sheopur in Miscellaneous Civil Appeal No. 17/2013, setting aside the order dated 19.12.2012 passed by Second Civil Judge Class I Sheopur in Miscellaneous Civil Case No. 15/2011 by which the trial Court initially rejected the application under Order 9, Rule 9 of CPC for restoration of original Civil Suit No. 76/2005 (New No. 109/2008). 2. The short facts of the case are that the respondent has filed a civil suit for permanent injunction in respect of agricultural land survey No. 843, 844, 848, 849 and 854 total area 7.034 hectare situated at village Baroda Tehsil and District Sheopur (M.P.), which was registered as Civil Suit No. 76-A/2005. This suit was listed on 20.04.2010 for recording evidence of the plaintiff and earlier also the opportunities were given to the plaintiff for pursuing his evidence but on that date plaintiff and his witnesses were not present and prayer was made by the counsel for the plaintiff/respondent for adjournment. The learned trial Court, however, rejected the prayer and vide order dated 20.04.2010 dismissed plaintiff's suit for want of evidence. Thereafter, plaintiff moved an application under Order 9, Rule 9 of CPC seeking restoration of original suit No. 76/2005 which was registered as Misc. Civil Case No. 15/2011. This application was dismissed by the learned trial court holding that original suit was dismissed in the light of the provision of Order 17, Rule 3 CPC, therefore, the appeal is maintainable and no application for restoration under Order 9, Rule 9 CPC lies. Being aggrieved by the order passed by the trial Court, respondent/plaintiff filed an appeal before the District Judge which was allowed by the impugned order dated 17.06.2013, which is subject matter of this revision petition. 3. Learned counsel for the applicants submitted that the Second Additional District Judge Sheopur passed the impugned order ignoring the mandatory provisions contemplated under Order 17, Rule 3 of CPC and restored the civil suit without jurisdiction and contrary to law. Since the suit was dismissed under the provisions of Order 17, Rule 3 of CPC, the application under Order 9, Rule 9 CPC is not maintainable. Hence, the impugned order dated 17.06.2013, deserves to be dismissed. . 4. Since the suit was dismissed under the provisions of Order 17, Rule 3 of CPC, the application under Order 9, Rule 9 CPC is not maintainable. Hence, the impugned order dated 17.06.2013, deserves to be dismissed. . 4. Learned counsel for the respondent/plaintiff supported the impugned order and prayed of dismissal of this civil revision. 5. I have heard the contention of learned counsel for both the parties. The singular question which requires to be determined is whether the order dated 20.04.2010, dismissing the suit of the respondent/plaintiff was passed under Rule 3 or Rule 2 Order 17 CPC. Rule 2 Order 17 CPC provides for the procedure where parties fail to appear on any day to which the hearing of the suit is adjourned. In the case of State Bank of India, Ratlam v. Nandram (deceased) through Lr's and others, reported in 1999 (1) MPLJ 719 , this Court has held that the following conditions are necessary for application of Order 17, Rule 3 of CPC: "For application of Order 17, Rule 3 of the Civil Procedure Code three conditions are necessary; (1) time must have been granted to a party to take all or any of the steps mentioned therein for the progress of the suit, (2) there must have been a default in taking such steps, and (3) the party concerned should have appeared in court. Rule 3 would obviously apply only when the party concerned is present on the adjourned date and he fails to do the things for which adjournment was granted. Mere presence of counsel seeking adjournment would not amount to the presence of the party within the meaning of clauses (a) and (b) of Order 17. Rule 3. Rule 3 applies only where the hearing has commenced and an application for an adjournment is then made by one of the parties, but when before the hearing is commenced, Plaintiff fails to appear on an adjourned date and the counsel merely appears to seek adjournment, the court in case refuses the prayer for adjournment can proceed only under Rule 2 and not under Rule 3." 6. In the instant case, the suit was called for hearing, the respondent/plaintiff was not present in person and the counsel appeared and sought adjournment because he was instructed by the plaintiff to ask for adjournment only and not to proceed with the trial. In the instant case, the suit was called for hearing, the respondent/plaintiff was not present in person and the counsel appeared and sought adjournment because he was instructed by the plaintiff to ask for adjournment only and not to proceed with the trial. In such circumstances, Rule 2 Order 17 CPC applies in case of dismissal of suit and against that application lies under Order 9, Rule 9 CPC. 7. In view of above said position of law, no interference in the revision is warranted. The present revision has no substance and is hereby dismissed.