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2018 DIGILAW 333 (MP)

Rameshwar v. Govind

2018-03-19

VIVEK RUSIA

body2018
JUDGMENT 1. The appellant/Plaintiff' has filed the present second appeal being aggrieved by the judgment dated 12.7.2017 by which the first appeal has been dismissed as not maintainable. 2. The appellant/plaintiff filed the suit seeking relief of declaration and permanent injunction in respect of the land bearing Survey No. 1332, area 0.209 hectares . He sought declaration to the effect that, he is entitled for correction of entries by way of decree of the area of the land which has wrongly been recorded as 0.209 hectares in place of 0.245. Vide order dated 6.8.2015, the suit was directed to be registered and the summons were issued to the defendants. By 11.9.2015, both the defendants have filed their written statement. Vide order dated 13.10.2015, the suit was fixed for framing of issues and the parties were directed to submit their list of witnesses. Vide order dated 21.11.2015, the case was fixed for plaintiff's evidence on 18.11.2015. On 18.11.2015, the counsel for the plaintiff has filed application seeking adjournment that the plaintiff is not present in the Court due to his health condition. Learned trial Court has declined to adjourn the case and dismissed the suit for want of evidence. 3. Being aggrieved by the aforesaid order dated 18.11.2015 the plaintiff preferred an appeal under section 96 of the CPC. Learned Additional District Judge vide order dated 12.7.2017 has dismissed the appeal as not maintainable, hence, the present second appeal before this Court. 4. In this second appeal, the appellant has proposed following substantial questions of law for admission of this appeal : "A. Whether the lower appellate Court has committed an illegality in dismissing the appeal as unmaintainable by misconstruing the provisions of Order XVII rule 2 and Order IX CPC and without considering that the dismissal of the suit for want of evidence would amount to a decree which can be assailed under section 96 CPC.? B. Whether the course adopted by the trial Court in dismissing the suit for want of evidence on the very first date fixed for recording the evidence, without considering the provisions of proviso to other XVIII rule 1 CPC is perverse and illegal? " 5. B. Whether the course adopted by the trial Court in dismissing the suit for want of evidence on the very first date fixed for recording the evidence, without considering the provisions of proviso to other XVIII rule 1 CPC is perverse and illegal? " 5. The sole question involved in this appeal is whether the first appeal filed by the plaintiff is maintainable under section 96 of the CPC for want of the decree and if first appeal is held to be maintainable, then the present second appeal would also be maintainable. 6. Under section 96 of the CPC, the appeal shall lie from every decree passed by any Court exercising its original jurisdiction. The word "decree" is defined in section 2(2) of CPC and according to which a decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint but shall not include any order of dismissal for default. 7. In case of Banarsi and others v. Ram Phal, reported in (2003)9 SCC 606 , the apex Court has held as under : "8. sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal (See Phoolchand and Anr. v. Gopal Lal, (1967) 3 SCR 153 ; Smt. Jatan Kanwar Golcha v. M/s Golcha Properties (P) Ltd., (1970) 3 SCC 573 ; Smt. Ganga Bai v. Vijay Kumar and ors., (1974) 2 SCC 393 . No appeal lies against a mere finding. It is significant to note that both sections 96 and 100 of the CPC provide for an appeal against decree and not against judgment." 7. In the present case, the suit has not been dismissed in default but was dismissed in presence of counsel for the plaintiff . 8. No appeal lies against a mere finding. It is significant to note that both sections 96 and 100 of the CPC provide for an appeal against decree and not against judgment." 7. In the present case, the suit has not been dismissed in default but was dismissed in presence of counsel for the plaintiff . 8. In case of Hardevinder Singh v. Paramjit Singh and others, reported in (2013) 9 SCC 261 , the apex Court has observed that if a judgment and decree prejudicially affects a person needless to emphasize, he can prefer an appeal. 9. In the present case, by dismissal of the suit, the plaintiff is precluded from filing another suit on the same cause of action, but facts remains that , there is no adjudication of any issue between the parties due to dismissal of the suit, therefore, the first appeal filed by the appellant was not maintainable and the learned appellate Court has rightly dismissed the same. The appellant had a remedy to apply under Order 9 rule 9 of the CPC for setting aside the dismissal. 10. Learned first appellate Court has rightly held that appeal is not maintainable as the suit was dismissed under Order 17 rule 2 of the CPC. The Order 17 rule 2 provides that where on any day, the parties fails to appear, the Court may proceed to dispose of the suit in one of the mode provided under Order 9 . Order 17 rule 3 provides that where any party to suit fails to provide his evidence or to cause the attendance of his witness, the Court may either proceed to decide the suit forthwith or if the parties are, or any of them is, absent,may proceed under Order 17 rule 2 also. The rule 2 provides for invocation of modes available under Order 9. The Explanation to rule 2 also provides that where the evidence, or a substantial portion of evidence, of any party has been recorded, and such party fails to appear on such day, the Court may dispose of it on its discretion proceed further even in absence of such party. 11. But in the present case, there was no evidence on behalf of the plaintiff. 11. But in the present case, there was no evidence on behalf of the plaintiff. On the very first date fixed by the Court, the plaintiff was not present to give evidence, therefore, under Order 17 rule 2 or under Order 17 rule 3 only mode available to the Court was to proceed under Order 9. Order 9 rule 8 provides dismissal of the suit when the plaintiff does not appear and Order 9 rule 9 provides filing of an application for setting aside such order of dismissal, therefore, learned first appellate Court has rightly dismissed the appeal as not maintainable. 12. This Court in case of Maruti Damaji Ashtinkar v. Gangadhar Rao Kher, reported in 1964 JLJ 559 =1964 MPLJ 919 has held that the order passed under Order 17 rule 3 dismissing the suit for default of plaintiff would be substituting the order of the trial Court by which the suit has been dismissed under Order 17 rule 2, then the plaintiff can apply for setting aside of the dismissal. 13. This Court in case of Central Bank of India v. M/s Arestan, reported in 2005(II) MPJR 186, has held that the suit dismissed for want of evidence after rejecting the prayer for adjournment the order falls under Order 17 rule 2 of CPC. The mere presence of counsel seeking adjournment does not amounts to presence of party hence application under Order 9 rule 9 of the CPC would be maintainable. I do not find any substantial question of law involved in this appeal. Hence, the appeal is hereby dismissed.