JUDGMENT By the Court.—Heard Sri Ravi Kant, learned Senior Advocate assisted by Sri Birendra Singh, learned counsel for appellants and sri Ajay Singh, learned counsel for respondents. 2. This is a plaintiff’s appeal under Section 96 of C.P.C., arisen from judgment and decree dated 30.11.2009 and 8.12.2009 respectively passed by Sri Mangal Prasad, Additional District Judge, Court No. 3, Agra whereby Court below has dismissed Original Suit No. 791 of 1999 filed by plaintiff-appellants (hereinafter referred to as ‘appellants’) for relief of permanent injunction. 3. Brief facts as transpire from record are that appellants filed a suit for permanent injunction, stating therein that they are owners and in possession over Bungalow No. 29, situated at Gopi Chand Shivhare Road, Agra Cantt., Agra (hereinafter referred to as “disputed property”) which is a free hold property. Original owner of disputed property was Mr. Clement Ernest Galestin who has sold it on 12.1.1942 to Syed Ali Raja, Sayyad Fiaz Mustafa and Sayyad Haseen Mustafa. Above persons sold disputed property by means of a registered sale-deed dated 26.5.1949 to Dr. A.P. Kapur. After death of Dr. A.P. Kapoor, his heirs sold it, by means of four registered sale-deeds dated 24.2.1982 to appellants. Thereafter, appellants became exclusive owners of disputed property. vide notice dated 21.12.1985 issued by Defence Estate Officer (hereinafter referred to as “DEO”), appellants were directed to refrain from raising any constructions over disputed property. Aforesaid notice was challenged by appellants in Writ Petition No. 2361 of 1986, in which opposite party in writ petition were directed to produce ‘Old Grant Lease’, but they failed to produce the same. Ultimately vide order dated 26.10.1989, Court restrained defendants from interfering in constructions raised by appellants over disputed property. Appellants spent huge sum in construction of a three star hotel on the land of disputed property, after obtaining permission dated 28.8.1996 from competent authority. Their names were mutated in the records of Cantonment Board. Defendant - Union of India - Ministry of Defence were not paid any grant/rent or tax and appellants are exclusive owners of disputed property which is a ‘Free Hold Property’ and not ‘Old Grant Lease’. Notice dated 30.7.1999 issued by defendant is wrong and illegal. Appellants have filed objection against aforesaid notice. Cost of constructions shown in the notice as Rs. 49,600/- is insufficient and respondent has no right or title over disputed property. Notice dated 30.7.1999 issued by defendant is wrong and illegal. Appellants have filed objection against aforesaid notice. Cost of constructions shown in the notice as Rs. 49,600/- is insufficient and respondent has no right or title over disputed property. Representation dated 1.9.1999 of appellants for quashing of above notice has not been considered by respondent. Rather they were issuing threats to appellant for demolition of constructions standing over disputed property. In these circumstances appellants filed the suit in question. 4. Suit was contested by respondent stating therein that appellants are not owners of disputed property and same is also not ‘Free Hold Property’. Disputed property is marked property of Agra Survey No. 214, area 1.761 acre. The above property is jointly registered in the names of Sri Babu Lal, Smt. Radha Devi, Sri Lalit Kumar and Smt. Madhur Agarwal as ‘Old Grant’ and used for residential purposes. Above persons have only occupancy rights in the disputed property and owner of above property is Government of India. Appellants have clearly admitted in the sale-deed dated 12.1.1942 that land of above disputed property is Government land and comes under ‘Old Grant’. This fact is also admitted by appellants in the sale-deed dated 26.5.1949. Alleged erstwhile owner of property Mr. Earnest Galestine has also admitted this fact in his letter dated 28.5.1941 that land of disputed property belongs to Survey No. 214, comes under ‘Old Grant’ and he had only occupancy right over the same. This fact is also admitted by successors of Dr. A.P. Kapoor in the sale-deed dated 25.2.1982, that it is property of survey No. 214 and ownership thereof is vested in Government of India. When appellants started constructions over disputed property, without any permission from competent authority, then DEO, Agra Circle, Agra, issued notice dated 31.12.1985 and asked them to stop raising constructions over disputed property for commercial use. Appellants filed writ petition No. 7148 of 1986 before this Court challenging above notice. Court vide judgment dated 18.7.1990 dismissed writ petition as not pressed. Appellants 1, 2 and 3 again filed writ petition No. 3261 of 1986 before Lucknow Bench of this Court, wherein, vide order dated 4.6.1990, Court directed authorities to maintain ‘status quo’ over disputed property, due to non production of ‘Old Grant Lease’ being not traceable but appellants cannot get any advantage for that. Appellants 1, 2 and 3 again filed writ petition No. 3261 of 1986 before Lucknow Bench of this Court, wherein, vide order dated 4.6.1990, Court directed authorities to maintain ‘status quo’ over disputed property, due to non production of ‘Old Grant Lease’ being not traceable but appellants cannot get any advantage for that. They have no right or title over disputed property and are raising un-authorised constructions over the same. No cause of action has arisen to appellants, suit is barred under Section 79/80 C.P.C., Sections 38 and 41 of Specific Relief Act, 1963 (hereinafter referred to as “S.R. Act, 1963”) and non joinder of necessary parties as such suit of appellants is not maintainable and liable to be dismissed. 5. Court below framed following issues : Þ¼1½& D;k oknhx.k fookfnr lEifRr ¼caxyk ua0 29 o mlds lkFk layXu Hkwfe½ ds Lokeh gS\ (1) Whether the plaintiffs are owners of the disputed property (bungalow no 29 and land attached to it)? ¼2½& D;k fookfnr lEifRr Qzh gksYM lEifRr gS\ (2) Whether the disputed property is a freehold property? ¼3½& D;k fookfnr lEifRr losZ ua0&214 ,fj;k 1-761 ,dM+ esa vofLFkr gS\ tks fd xouZj tujy ds vkns'k la0 179 lu~ 1836 ds vuqlkj ckcwyky] Jherh jk/kk nsoh] yfyr dqekj o Jherh e/kqj vxzoky ds uke ntZ gS rFkk ftldk LokfeRo Hkkjr la?k esa fufgr gS\ tSlk fd izfroknh }kjk izfrokni= esa vfHkdfFkr fd;k x;k gS\ (3) Whether the disputed property is situated at survey no 214 having an area of 1.761 acre; which, as per the Governor General order no 179 of 1836, is registered in the name of Babu Lal, Smt Radha Devi, Lalit Kumar and Smt Madhur Agarwal and the ownership whereof is vested with the Union of India, as mentioned in the written statement of the defendant? ¼4½& D;k caxyk la0 29 ds lkFk layXu Hkwfe ds iwoZ Lokeh ugh gSS tSlk fd izfrokni= dh /kkjk 2 esa of.kZr fd;k x;k gS\ (4) Whether there is no previous owner of the land attached to the bungalow no 29, as mentioned in para 2 of the written statement? ¼4½& D;k caxyk la0 29 ds lkFk layXu Hkwfe ds iwoZ Lokeh ugh gSS tSlk fd izfrokni= dh /kkjk 2 esa of.kZr fd;k x;k gS\ (4) Whether there is no previous owner of the land attached to the bungalow no 29, as mentioned in para 2 of the written statement? ¼5½& D;k mijksDr caxyk la0 29 ds lkFk layXu Hkwfe ds LokfeRo Hkkjr la?k ¼v.Mj vksYM xzkUV½ es fufgr gS\ tSlk fd izfrokni= esa of.kZr gS\ (5) Whether the ownership of the land attached to it to the aforesaid bungalow no 29 is vested with the Union of India (Under Old Grant), as mentioned in the written statement? ¼6½& D;k izfroknh }kjk oknhx.k dks izsf"kr uksfVl fn0 30-7-99 fofo/k gS\ (6) Whether the notice dated 30.7.99 sent to the defendant is lawful? ¼7½& D;k oknhx.k }kjk fookfnr ifjlj es fd;k x;k fuekZ.k /oLrhdj.k ds ;ksX; gS\ (7) Whether the construction made in the disputed premises is liable to be demolished? ¼8½& D;k oknh dks dksbZ okn dkj.k izkIr ugha gS\ (8) Whether the plaintiff has no cause of action? ¼9½ D;k oknh dk okn /kkjk 79] 80 O;0iz0la0 ls ckf/kr gS\ (9) Whether the suit of the plaintiff is barred by Section 79, 80 of the CPC? ¼10½& D;k oknh dk okn /kkjk 38 o 41 fof'k"V vuqrks"k vf/kfu;e ls ckf/kr gS\ (10) Whether the suit of the plaintiff is barred by Section 38 and 41 of the Specific Relief Act? ¼11½ D;k oknh dk okn vko';d i{kdkjksa ds vla;kstu ds nks"k ls nwf"kr gS\ (11) Whether suit of the plaintiff is vitiated with non-joinder of the necessary parties? ¼12½& D;k izLrqr okn dh lquokbZ dk {ks=kf/kdkj bl U;k;ky; dks izkIr ugha gS\ (12) Whether this Court has no jurisdiction to hear the instant case? ¼13½ oknh fdl vuqrks"k dk vf/kdkjh gS\ß (13) What relief the plaintiff is entitled to get?” (English Translation by Court) 6. While passing impugned judgment, Court below has observed that appellants have not produced any oral or documentary evidence to support their claim. Respondent filed affidavit (paper No. 129-Ka) in evidence, but witness was not cross-examined by appellants. Court below has accepted affidavit as un-controverted evidence. Court below has observed that no one is present to argue the matter on behalf of appellants though they were provided full opportunity and that the case is pending from 1999 and comes under the category of ‘oldest cases’. Court below has accepted affidavit as un-controverted evidence. Court below has observed that no one is present to argue the matter on behalf of appellants though they were provided full opportunity and that the case is pending from 1999 and comes under the category of ‘oldest cases’. In these circumstances, arguments in defence were heard and matter was decided on merit, on the basis of evidence available on record. 7. After taking into consideration evidence available on record, Court below has recorded findings on issues - 1 and 2 that appellants have failed to prove that they are exclusive owners of disputed property i.e. Bunglaw No. 29 and land attached thereto and that it is a ‘Free Hold Property’. In respect to issues - 3 and 5, Court below has held that no evidence was adduced by appellant which may support their case that disputed property is not an ‘old grant lease’. Issue - 4 has been decided in favour of respondent. Issues - 6, 7, 8, 9, 10, 11 and 12 are not discussed in detail as respondents did not press those issues. While deciding issue - 13, Court below has held that appellants have failed to prove their case and in view thereof they are not entitled to get any relief. Consequent to above findings, suit of appellant has been dismissed with cost. Feeling aggrieved therefrom, appellants have filed this appeal. 8. Learned Senior counsel for appellants has raised only one point that in absence of appellants and their counsel, Court below was expected to fix another date in the matter or should have dismissed the case under Order 9 Rule 8 C.P.C. or under Order 17 Rule 2 C.P.C. Court below was neither expected nor competent to decide suit of appellants on merits and hence impugned judgment and decree passed by Court below is liable to be set aside. 9. Per contra, learned counsel for respondent supported and defended impugned judgment and decree by submitting that Court below has adopted proper recourse of Order 16 Rule 20 C.P.C. for deciding case on merits despite absence of plaintiff-appellants and their counsel since matter was old relating to the year 1999 and appellants were in regular habit of prolonging the case. 10. Per contra, learned counsel for respondent supported and defended impugned judgment and decree by submitting that Court below has adopted proper recourse of Order 16 Rule 20 C.P.C. for deciding case on merits despite absence of plaintiff-appellants and their counsel since matter was old relating to the year 1999 and appellants were in regular habit of prolonging the case. 10. Considering rival submissions of learned counsel for parties we find that only one ‘point for determination’ has arisen for consideration of this Court “Whether impugned judgment and decree passed by Court below deciding suit on merits is sustainable in the eyes of law?” 11. Before entering into merits of the issue, we would like to refer some relevant provisions of C.P.C. applicable to this case : “Order 9 Rule 8.—Procedure where defendant only appears.—Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.” “Order 16 Rule 20.—Consequence of refusal of party to give evidence when called on by Court.—Where any party to a suit present in Court refuses, without lawful excuse, when required by the Court, to give evidence or to produce any document then and there in his possession or power, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.” “Order 17 Rule 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 IX or make such other order as it thinks 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 is discretion, proceed with the case as if such party were present.” (emphasis added). 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 is discretion, proceed with the case as if such party were present.” (emphasis added). “Order 17 Rule 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].” 12. Perusal of order sheet reveals that in above referred old suit of 1999, issues could be framed only on 16.6.2009. On the next date i.e. 29.9.2009 when case was called out only parties were present and their counsel were not present, hence suit was fixed for 5.10.2009 for evidence. On 5.10.2009 it was adjourned on the application of plaintiffs i.e. appellants which was allowed with cost of Rs. 150/-, and 13.10.2009 was the next date fixed. On 13.10.2009, following order was passed : Þiqdkj ij oknh vuqifLFkrA oknh dh vksj ls lk{; izkIr ugha gSA lk{; gsrq LFkxu izkFkZuki= izLrqr gSA LFkxu izkFkZuki= dk vk/kkj ugha ik;k tcfd okn dkQh iqjkuk gS rFkk ekuuh; mPp U;k;ky; }kjk lwphc) Js.kh ds ekeys ds vUrxZr gSA vr% LFkxu izkFkZuki= oknh [kkfjt fd;k tkrk gSA pw¡fd oknh }kjk lk{; izLrqr ugha fd;kA vr% oknh dk lk{; dk volj lekIr fd;k tkrk gSA i=koyh dks lk{; izfroknh fnukad 20-10-2009 dks is'k gksAß “On being called, the plaintiff was absent. No evidence has been adduced on behalf of the plaintiff. Adjournment application is filed for evidence. No ground is found for adjournment application inasmuch as the case is old enough and comes under the listed category by the Hon’ble High Court. Hence, the adjournment application is cancelled. As no evidence has been adduced by the plaintiff, the opportunity given to the plaintiff for adducing evidence stands dispensed with. Put up records on 20.10.2009 for evidence of the defendant.” (English Translation by Court) 13. Hence, the adjournment application is cancelled. As no evidence has been adduced by the plaintiff, the opportunity given to the plaintiff for adducing evidence stands dispensed with. Put up records on 20.10.2009 for evidence of the defendant.” (English Translation by Court) 13. On the next date i.e. 20.10.2009 case was adjourned on adjournment application of defendant. On the next date i.e. 23.10.2009 defendant again sought adjournment and next date fixed was 29.10.2009 for “defence evidence”. On 29.10.2009 paper No. 128-C was filed by defendant by means of application 127-C. On the next date i.e. 7.11.2009 defendant DW-1 filed his affidavit 129-A in evidence and 13.11.2009 was fixed for defence evidence (cross of DW-1). On 13.11.2009 none was present from the side of plaintiffs. In these circumstances, at 2.30 P.M., opportunity to cross-examine DW-1 was closed and 17.11.2009 was fixed. 14. On 13.11.2009 none was present from the side of plaintiffs. In these circumstances, at 2.30 P.M., opportunity to cross-examine DW-1 was closed and 17.11.2009 was fixed. 14. For the sake of convenience we are reproducing herein affidavit (paper No. 129A), filed by DW-1 in his evidence : Þlk{; 'kiFki= feutkfuc ch0oh0 prqosZnh iq= Lo0 vejukFk prqosZnh fyfid dk;kZy; j{kk lEink vf/kdkjh vkxjk e.My vkxjk vk;q djhc 54 lkyA 'kiFkdrkZ 'kiFk iwoZd fuEu c;ku djrk gS fd %& 1- ;g fd 'kiFkdrkZ j{kk lEink vfèkdkjh vkxjk e.My vkxjk Nkouh esa ofj"B fyfid ds in ij dk;Zjr gS rFkk oknh lHkh rF;ksa ls Hkyh Hkkafr ifjfpr gSA 2- ;g fd caxyk uacj 29 fLFkr yks/kh ,Dok;j jksM vkxjk yS.M losZ uEcj 214 vUrxZr gS ftldk {ks=Qy 1-761 ,dM+ gSA mijksDr caxyk uEcj 29 la;qDr :i ls ckcw yky] Jherh jk/kk nsoh yfyr dqekj o Jh e/kqj vxzoky ds uke vksYM xzkUV ds :i esa ntZ gS tks fd lu~ 1836 ls xoZuj tujy ds vkMZj uEcj 179 esa fuokl ds mn~ns'; ds fy, gSA ckcwyky vkfn mijksDr iwoZ uEcj 214 dh lEifRr esa dsoy vksdwisUlh vf/kdkj j[krs gS rFkk LokfeRo Hkkjr dk gSA oknxzLr lEifRr Qzh gksYM lEifRr ugha gSA 3- ;g fd ,e0 cslesUV vjusLV xSysfLVu mijksDr caxyk uEcj 29 iwoZ Lokeh ugha Fks fd xSfyLVu us vius i= fnukad 28-5-1941 }kjk Lohdkj fd;k x;k ;fn caxyk uEcj 29 o losZ uEcj 214 vksYM xzkUV ds :i esa rFkk mijksDr xSfyfLVu us ;g caxyk fodz; i= fnukafdr 12-1-1942 }kjk lS;n vyh] jtk lS;n] fj;kt eqLrQk] lS;n gqlSu dks fodz; dj fn;k mijksDr fodz; i= esa ;g Li"V :i ls bafxr dj Lohdkj fd;k x;k gS fd caxyk uEcj 29 dh Hkwfe vksYV xzkUV ds vUrxZr ljdkjh Hkwfe gSA mijksDr lS;n vyh jtk vkfn us mijksDr caxyk uEcj 29 MkDVj vEck izlkn diwj dks fodz; i= fnukad 26-5-1949 }kjk fodz; dj fn;k x;k] mijksDr fodz; i= esa ;g Li"V :i ls vafdr gS fd dsoy iDdk edku fodz; fd;k x;k gS rFkk Hkwfe vksYM xzkUV ds vUrxZr ljdkjh lEifRr gSA rFkk Jh vEck izlkn diwj dh e`R;q ds i'pkr mlds mRrjkf/kdkfj;ksa us vyx vyx pkj fodz; i= fnukafdr 25-02-1982 }kjk caxyk uEcj 29 dks ckcw yky vxzoky] jk/kk nsoh] Jh yfyr dqekj o Jherh e/kqj vxzoky dks fodz; dj fn;kA mijksDr fodz; i=ksa esa Mk0 vEck izlkn diwj ds okfjlksa us Hkh Lohdkj fd;k gS fd losZ uEcj 214 dh Hkwfe Hkkjr la?k ds LokfeRo esa gSA 4- ;g fd tc oknhx.k us mijksDr caxyk uEcj 29 ds foHkkx dh vuqKk@Lohd`fr izkIr fd;s fcuk voS/k fuekZ.k 'kq: dj fn;k rc Mh0bZ0vks0 vkxjk lfdZy vkxjk dS.V us ,d i= fnukafdr 31-12-1985 mijksDr voS/k fuekZ.k dk;Z dks jksdus ds fy, tkjh tk jgk FkkA bl ckcr oknhx.k us ,d fjV ;kfpdk la[;k 7140@86 ekuuh; mPp U;k;ky; bykgkckn esa nkf[ky dh ftlesa ekuuh; mPp U;k;ky; }kjk oknhx.k ds i{k esa fu"ks/kkKk ikfjr u djus ij oknhx.k }kjk cy u nsus ij mijksDr fjV ;kfpdk fnukad 18-07-1990 dks [kkfjt dj nhA blds i'pkr oknhx.kksa mijksDr fjV ;kfpdk la[;k 7148@86 ds rF; dks fNikrs gq;s ,d vU; fjV ;kfpdk la[;k 3261@1986 ekuuh; mPp U;k;ky; dh y[kuÅ [k.MihB esa leku vuqrks"k ds fy, izLrqr dh rFkk xyr rF;ksa ds vk/kkj ij oknhx.kksa us mijksDr fjV ;kfpdk esa vUrfje vkns'k fnukafdr 22-5-1987 izkIr dj fy;k ftls oknh ekuuh; mPp U;k;ky; y[kuÅ [k.MihB us fnukad 04-06-1990 dks ;FkkfLFkfr cuk;s j[kus ds vkns'k esa ifjofrZr dj fn;k rFkk rRi'pkr~ fjV fiVh'ku la[;k 3261@1986 fnukad 17-02-2004 dks fujLr gks pqdh gSA 5- ;g fd oknxzLr lEifRr caxyk uEcj 29 vksYM xzkUV dh lEifRr gS rFkk Hkkjr la?k ds LokfeRo o gd o vf/kdkj esa gSA oknhx.k dks dsoy mijksDr caxyk ij vkSdwiSUlh vf/kdkj gS rFkk os mijksDr caxyk dh dsoy fuokl ds iz;kstu esa mi;ksx dj ldrs gS rFkk dksbZ Hkh dqN fuekZ.k fMQsUl LVsV vkfQlj dh Lohd`fr ds fcuk ugha dj ldrs gS rFkk u gh mijksDr lEifRr dk O;kolkf;d :i ls iz;ksx dj ldrs gSA 6- ;g fd uksfVl fnukad 30-07-1999 oS/k o lgh gS mijksDr uksfVl ds fo:) oknhx.k us ;kfpdk la[;k 36245@99 ekuuh; mPp U;k;ky; bykgkckn esa izLrqr dh ftlesa ekuuh; mPp U;k;ky; bykgkckn us vius vkns'k fnukafdr 30-08-1999 }kjk i{kdkjksa dks dCts ds lEcU/k esa o iz'uxr lEifRr ds izd`fr ds lEcU/k esa ;FkkfLFkfr cuk;s j[kus ds fy, funsZf'kr fd;k rFkk oknhx.kksa dks funsZf'kr fd;k fd og uksfVl fnukafdr 30-07-1999 ds fo:) vius ,srjkt l{ke izkf/kdkj.k ds le{k izLrqr djs ijUrq oknhx.k us ekuuh; mPp U;k;ky; ds mijksDr vkns'k ds vuqikyu esa dksbZ ,srjkt@tokc izLrqr ugha fd;k x;k rFkk fcuk fdlh dkj.k ds ;g okn xyr o vlR; rF;ksa ij izLrqr dj fn;k x;kA oknhx.k us ekuuh; mPp U;k;ky; ds mijksDr vkns'k dh vkM+ esa voS/k fuekZ.k dks tkjh j[kk rFkk iz'uxr lEifRr dh izd`fr dks ifjofrZr dj fn;k rFkk gksVy dk fuekZ.k dj fy;k gSA bl izdkj oknhx.kksa us ekuuh; mPp U;k;ky; ds vkns'k dh voekuuk dh gSA 7- ;g fd oknhx.k }kjk dfFkr fdlh Hkh izdkj dh dksbZ /kedh ugha nh x;h gS oknhx.k us ;g okn xyr o vlR; rF;ksa ds vk/kkj ij fcuk fdlh dkj.k xyr :i ls voS/k mn~ns'; dh iwfrZ ds fy;s nkf[ky fd;k x;k oknhx.k dh oknxzLr lEifRr esa vkSdwiSUlh vf/kdkj dks NksM+ dj vU; fdlh Hkh izdkj dh dksbZ vf/kdkj Lor% gd oknxzLr lEifRr esa ugha gS rFkk u ogh oknhx.k pkgs x;s vuqrks"k dks izkIr djus ds vf/kdkjh gS rFkk oknhx.k dk okn e; gtsZ ds [kkfjt gksus ;ksX; gSA 8- ;g fd izfroknh foHkkx }kjk izLrqr izfroknh i= ds rF; lgh o lR; gS rFkk izfroknhx.kksa us vius leLr nLrkost dh lR; izfrfyfi QsgfjLr la[;k 128x@1&2 ls dkxt la[;k 128x@3 yxk;r 128x@55 i=koyh nkf[ky dh gS tks fd lgh o oS/k lR; gSA rFkk ftl izdkj foHkkx esa nkf[ky gS mlh izdkj nkf[ky dh gSA lR;kiu%& lR;kfir fd;k tkrk gS fd 'kiFki= dh en 1 yxk;r&8 rd lR; o lgh gS lR;kiu 07-11-09 dks fd;k x;kA 'kiFkdrkZ g0 viBuh;ß “Evidence on affidavit from B.V. Chaturvedi, S/o Late Amarnath Chaturvedi, Clerk in the Office of the Defence Estates Officer, Agra Division, Agra, aged around 54 years. The deponent states the following on oath: 1. That the deponent is posted as Senior Clerk with the Office of the Defence Estates Officer, Agra Division, Agra Cantt., and is well conversant with all the facts of the case. 2. That the bungalow No. 29 situated at Lodhi Square Road, Agra, which is under the Land Survey No. 214 measuring 1.761 acres. The aforesaid bungalow No. 29 is registered as an old grant in the joint names of Babu Lal, Smt. Radha Devi, Lalit Kumar and Shri Madhur Agarwal, which is for the purpose of residence since 1836 by order No. 179 passed by the Governor General. Babu Lal and others have only occupancy rights in the aforesaid property No. 214 and the same is owned by the Union of India. The suit property is not a freehold property. 3. That M. Basement Ernest Gailestin was not the previous owner of the aforesaid bungalow No. 29. Through letter dated 28.5.1941, Gailestin had admitted that the bungalow No. 29 under survey No. 29 was as an old grant and the aforesaid Gailestiin sold the same to Sayyed Ali, Raza Sayyed, Riyaz Mustafa and Sayyed Hussain by way of a sale-deed dated 12.1.1942. The aforesaid sale-deed clearly mentions that the land of bungalow No. 29 is a Government land under old grant. The aforesaid Sayyed Ali and others sold the aforesaid bungalow No. 29 to Doctor Amba Prasad Kapoor by way of a sale-deed dated 26.5.1949. The aforesaid sale-deed clearly mentions that only concrete house was sold, and the land under old grant is property of the Government. After the demise of Shri Amba Prasad kapoor, his successors sold bungalow No. 29 to Babu Lal Agarwal, Radha Devi, Shri Lalit Kumar and Smt. Madur Agarwal by way of four separate sale-deeds dated 25.2.1982. The successors of Dr. Amba Prasad Kapoor has also admitted in the aforesaid sale-deeds that the land under survey No. 214 is owned by the Union of India. 4. That when the plaintiffs started illegal construction on bungalow No. 29 without obtaining permission/approval from the concerned department, the DEO Agra Circle, Arga Cantt. issued a letter dated 31.12.1985 for stopping the aforesaid illegal construction. Amba Prasad Kapoor has also admitted in the aforesaid sale-deeds that the land under survey No. 214 is owned by the Union of India. 4. That when the plaintiffs started illegal construction on bungalow No. 29 without obtaining permission/approval from the concerned department, the DEO Agra Circle, Arga Cantt. issued a letter dated 31.12.1985 for stopping the aforesaid illegal construction. On this count, the plaintiffs filed a writ petition No. 7140 of 1986 before the Hon’ble High Court which was dismissed on 18.7.1990 without passing any injunction order on account of not being pressed by the plaintiffs. Thereafter, the plaintiffs filed another writ petition No. 3261 of 1986 before Lucknow Bench of the Hon’ble High Court for similar relief concealing the fact of aforesaid writ petition No. 7148 of 1986, and on the basis of wrong facts, the plaintiffs obtained an interim order dated 22.5.1987 in the aforesaid writ petition, which was later on 4.6.1990 converted by the Hon’ble High Court for maintaining the status quo. Thereafter, writ petition No. 3261 of 1986 came to be dismissed on 17.2.2004. 5. That the suit property being bungalow No. 29 is a property under old grant, and is under the title and ownership, and authority of the Union of India. The plaintiffs have only occupancy rights over the aforesaid bungalow and they can use the same only for the purpose of residence, and they cannot do any construction without the approval of the Defence Estate Officer nor can they use it for commercial purpose. 6. That the notice dated 30.7.1999 is legal and valid. Against the aforesaid notice, the plaintiffs filed a writ petition No. 36245/1999 before the Hon’ble Allahabad High Court in which the Court had by passing an order dated 30.8.1999 directed to maintain the status quo in relation to the possession of the parties and the nature of the property in question, and the plaintiffs were directed to submit their objections with regard to the notice dated 30.7.1999 before the competent authority but in defiance to the aforesaid order of the Hon’ble High Court, they did not submit any objection/reply and filed this suit without any reason on the basis of wrong and false facts. On the pretext of the aforesaid order of the Hon’ble High Court, the plaintiffs continued illegal construction, changed the nature of the property in question and constructed a hotel there. On the pretext of the aforesaid order of the Hon’ble High Court, the plaintiffs continued illegal construction, changed the nature of the property in question and constructed a hotel there. In this way, the plaintiffs have committed contempt of the order of the Hon’ble High Court. 7. That no alleged threat of any type was given by the plaintiffs. The plaintiffs have filed this suit without any reason and on the basis of wrong and false facts in order to fulfil their illegal motives, and they have no rights of any type in the suit property apart from the occupancy rights. The plaintiffs are not entitled to the relief sought; rather, their suit is liable to be dismissed with costs. 8. That the facts of the written statement filed by the defendant department are true and correct, and the defendants have through list No. 128Ga/1-2 filed on record the true photocopies of their complete documents being paper Nos. 128Ga/3 to 128Ga/55 which are correct, valid and true, and the same have been filed in the same way as available with the department. Verification: Verified that paras 1 to 8 of the affidavit are true and correct, and the same are verified on 7.11.2009. Deponent Sd/- (Illegible)” (English Translation by the Court) (Emphasis added) 15. Order dated 13.11.2009 passed by Court below read as under : Þiqdkj ij izfroknh mifLFkrA oknh dh vksj ls dksbZ mifLFkr ugha gSA izfroknh lk{kh DW-1 fofiu fogkjh prqosZnh mifLFkr gSa vLrq lk{kh dh izfri`PNk gsrq oknh dh vksj ls dksbZ mifLFkr ugha gSA le; 2-30 P.M. gSA oknh dkQh iqjkuk gS rFkk ekuuh; mPp U;k;ky; }kjk lwphc) Js.kh dk gSA vr% DW-1 dh izfri`PNk dk volj lekIr fd;k tkrk gSA okn okLrs cgl fnukad 17-11-2009 dks is'k gksAß “On being called the defendant has turned up. None is present on behalf of the plaintiff. DW-1 Vipin Bihari Chaturvedi is present; however, for the cross-examination of the witness, none is present on behalf of the plaintiff. It is 2:30 p.m. The case is old enough and is of listed/scheduled category by the Hon’ble High Court. The opportunity to cross-examine DW-1 is dispensed with. Put up the case for hearing on 17.11.2009.” (English Translation by the Court) (Emphasis added) 16. On 17.11.2009 again none was present on behalf of plaintiff-appellants. Hence arguments on behalf of defendant were heard and 30.11.2009 was fixed for pronouncement of judgment. The opportunity to cross-examine DW-1 is dispensed with. Put up the case for hearing on 17.11.2009.” (English Translation by the Court) (Emphasis added) 16. On 17.11.2009 again none was present on behalf of plaintiff-appellants. Hence arguments on behalf of defendant were heard and 30.11.2009 was fixed for pronouncement of judgment. Order dated 17.11.2009 is quoted below : Þiqdkj ij izfroknh i{k mifLFkrA oknh dh vksj ls dksbZ mifLFkr ugha vLrq izfroknh ds fo}ku vf/koDrk us viuh cgl mifLFkr dhA oknh vf/koDrk cgl mifLFkr ugha fd;sA vr% i=koyh dks okLrs fu.kZ; fnukad 30-11-2009 dks is'k gksA fu.kZ; ds iwoZ oknh viuh cgl fyf[kr ;k ekSf[kd mifLFkr dj ldrs gSaAß “On being called the defendant has turned up. None appeared on behalf of the plaintiff; hence, the learned counsel for the defendant led his arguments. The learned counsel on behalf of the plaintiff did not adduce arguments. Put up records for order on 30.11.2009. Before the order, the plaintiff may present his arguments in writing or verbally.” (English Translation by the Court) 17. It is evident from above order dated 17.11.2009 that appellants were provided opportunity to submit their written/oral arguments before date fixed for pronouncement of judgment. On 30.11.2009 judgment 131-Ka was pronounced and suit of appellants was dismissed with costs. 18. The above discussion shows that on so many occasions appellants did not appear before Court below when case was called out. On 13.10.2009 opportunity to appellants to produce evidence was closed. On 13.11.2009 opportunity to appellants to cross-examine DW-1 was closed and on 17.11.2009 appellants were provided opportunity to submit their written/oral arguments before date of pronouncement of judgment i.e. 30.11.2009, but despite above orders, neither application to recall order dated 13.10.2009, 13.11.2009 was filed nor opportunity provided to appellant to submit written/oral arguments before date of judgment was availed. Admittedly, no oral or documentary evidence was produced by appellants. DW-1 was not cross-examined in respect of averments made by him in the affidavit filed by him in evidence. As such, above referred un-controverted affidavit is on record against appellants. 19. Admittedly, no oral or documentary evidence was produced by appellants. DW-1 was not cross-examined in respect of averments made by him in the affidavit filed by him in evidence. As such, above referred un-controverted affidavit is on record against appellants. 19. Having regard to above facts i.e. this was an old case of 1999, absence of appellants on many occasions, producing no oral or documentary evidence, no corrective measures in their stand despite closing of evidence, closing of opportunity of cross-examination of DW-1, not getting setting aside adverse orders passed against them and not availing opportunity provided to them vide order dated 17.11.2009 to put their written or oral arguments before 31.11.2009 i.e. the date fixed for pronouncement of judgment. 20. We are of the view that Court below has rightly decided suit on the basis of evidence on record placed by defendant-respondent. It is fully established on the basis of above referred un-controverted affidavit of DW-1, Bipin Bihari Chaturvedi, that suit property being bungalow No. 29 is a property under Old Grant, and is under the title, ownership and authority of Union of India. Plaintiffs had only occupancy rights over land of aforesaid bungalow and they could use the same only for the purpose of residence. They could not have raised any construction without approval of D.E.O. nor could use it for commercial purpose. All concerned including predecessors of appellants admitted in their sale-deeds etc. that disputed property is an ‘Old Grant’, and they had only occupancy right over the same. Writ Petition No. 3261 of 1986, 7140 of 1986 and 36245 of 1999 were dismissed by this Court. Directions of Court in Writ Petition No. 36245 of 1999 for filing objection was not complied by appellants. Their constructions over disputed property is without obtaining no objection from competent authority. In the above facts and backdrop, we find no force in the contentions raised on behalf of appellants to the effect that Court below was not justified to decide the case on merits in absence of appellants and expected to pass order under Order 9 Rule 8 C.P.C. or under Order 17 Rule 2 C.P.C. only because it suits appellants. We are of considered view that appellants had no vested right to guide and decide how Court below should proceed to fulfill vested designs of appellants to prolong the case as per their wishes. We are of considered view that appellants had no vested right to guide and decide how Court below should proceed to fulfill vested designs of appellants to prolong the case as per their wishes. Appellants cannot be permitted to make hostage the Court to achieve their purposes and obtain order which suits them. 21. Order 9 deals with situation where summons have been issued to defendants and date is fixed for appearance of the parties. Rule 1 says, upon date fixed if defendant appear and answer by filing written statement, Court shall proceed to hear the matter, unless hearing is adjourned to future date. 22. Rule 3 provides a situation where none of the party appears on last date fixed and empowers Court to dismiss the suit. It says that Court may make an order of dismissal of suit, but does not compel Court to make such order. If a suit is dismissed under Order 9 Rule 3, plaintiff may seek restoration of suit by filing an application under Rule 4 and satisfy Court that he did not appear for sufficient cause. When both parties appear after service of notice on the date fixed as required under Rule 9(1) C.P.C., Court may proceed further and then comes stage of Order 10 i.e. examination of parties by Court. Rule 1 requires, if the defendant has appeared, Court will ascertain whether it admits or denies allegations made in the plaint or written statement, and record such admission and denial. 23. The procedure which is to be followed by Court when date is fixed for evidence is governed under Order 16. 24. In the present case 5.10.2009 was fixed in presence of parties for ‘evidence’. Plaintiff sought adjournment on 5th October, 2009 and then matter was adjourned to 13th October, 2009 for ‘evidence’. On 13th October, 2009 also plaintiff was not present. Instead an application for adjournment for adducing evidence was filed. This adjournment application was rejected. Order 16 Rule 20 applies to a situation when a party to the suit is present in Court but refuses without lawful explanation to give evidence or produce documents. No doubt it is a penal provision and therefore has to be construed strictly. 25. In the present case on 13th October, 2009 plaintiff sought adjournment and did not give ‘evidence’. Plaintiff through counsel was present and submitted an application for adjournment which was rejected. No doubt it is a penal provision and therefore has to be construed strictly. 25. In the present case on 13th October, 2009 plaintiff sought adjournment and did not give ‘evidence’. Plaintiff through counsel was present and submitted an application for adjournment which was rejected. Hence in our view Order 16 Rule 20 does come into picture. Therefore, Court closed evidence of plaintiff and fixed 20th October, 2009 for defendant’s evidence. Adjournment was granted at the request of defendant on 20.10.2009 to 23.10.2009 and on the next date i.e. 29th October, 2009 defendant lead his evidence by filing an affidavit. Court fixed 13.11.2009 for evidence i.e. cross-examination of defendant DW-1 but again plaintiff remained absent, therefore, evidence of defendant was also closed. 17.11.2009 was fixed for hearing. On 17th November, 2009 neither plaintiff nor his counsel appear while defendant and his counsel were present and advanced submissions. 26. It is in this backdrop the question is, “whether Court was bound to follow procedure under Order 9 Rule 3?” 27. We may notice at this stage that under Order 17 Rule 2 Court has discretion either to dispose of Suit under Order 9 or make such other order as it deems fit on application under Order 9 Rule 3 and its follow up by Court is not mandatory. On date fixed for ‘evidence’ of plaintiff, he himself was absent but an application for adjournment through his agent was there, therefore it cannot be said that he was not represented. That being so and looking to the fact that it was an old matter in which plaintiff was continuously prolonging it, it cannot be said that since Court did not follow procedure of Order 9 Rule 3 C.P.C. and proceeded to decide the matter on merit, committed procedural illegality, Order 17 Rule 2 C.P.C. does not bar such procedure. 28. On interpretation of Order 17 Rule 2 C.P.C. we find that there is some difference of opinion but consensus is that Court had power to decide the suit on merit. 29. In C.P.C. applicable before 1908, there were Sections 157 and 158, corresponding to Order 17 Rule 2 and 3, respectively. These provisions were considered in Chandramathi Ammal v. Narayanasami Iyer, (1910) 33 Mad 241. It was held that Section 157 deals with case of absence of parties and 158 applies where parties failed to do what was ordered. 30. 29. In C.P.C. applicable before 1908, there were Sections 157 and 158, corresponding to Order 17 Rule 2 and 3, respectively. These provisions were considered in Chandramathi Ammal v. Narayanasami Iyer, (1910) 33 Mad 241. It was held that Section 157 deals with case of absence of parties and 158 applies where parties failed to do what was ordered. 30. Aforesaid decision was approved by a Full Bench of Madras High Court in Prativadi Bhayankaram Pichamma v. Kamisetti Sreeramulu and others, AIR 1918 Madras 143 (2) FB, holding that Order 17 Rule 3 would apply to cases where parties are present but failed to satisfy Court as to existence of any adequate reason for their not having done what they were directed to do. Order 17 Rule 2 however, empowers Court to apply, while adjourning the hearing, same procedure to be followed in a case of failure of parties to attend first hearing. It however, expressly empowers Court in respect of passing such orders as it deems fit. Court held that provision of Order 17 Rule 3 is harsher than Order 17 Rule 2 inasmuch as Rule 3 empowers Court to proceed to decide the suit forthwith on the basis of material before it and it can dismiss the suit on merit if evidence on record does not prove plaintiff’s case. Similarly, it may pass a decree if defendant is absent and there is formal proof of plaintiff’s claim and onus is on defendant. 31. A Full Bench of Bombay High Court also had an occasion to consider Order 9 and 17 in Basalingappa Kushappa Kumbhar and others v. Shidramappa Irappa Shivanagi and another, AIR (30) 1943 Bombay 321 FB. Therein 8th September, 1939 was fixed for evidence in the suit. Defendant and his witnesses however remained absent on the said date. Defendant’s pleader filed an application seeking adjournment which was rejected. Thereafter, defendant’s Pleader withdrew himself from the case stating that his client has not turned up and he has no instructions. Plaintiff led evidence and Court passed decree in plaintiff’s favour. Thereafter, defendant applied to have decree set aside and to get the suit restored on the ground that he was not able to attend Court because of his illness. Thereafter, defendant’s Pleader withdrew himself from the case stating that his client has not turned up and he has no instructions. Plaintiff led evidence and Court passed decree in plaintiff’s favour. Thereafter, defendant applied to have decree set aside and to get the suit restored on the ground that he was not able to attend Court because of his illness. Trial Court held that sine decree was not ex parte but on merits, therefore, said decree cannot be set aside under Order 9 Rule 3 C.P.C. In appeal District Judge took a different view holding that decree was ex parte hence defendant’s application was maintainable. Matter was taken in revision which was referred to a Full Bench and question was “whether a decree passed by Court on evidence led by plaintiff after defendant’s Pleader withdrew for want of instructions is an ex parte decree or a decree on merits?” Since there were two divergent views, hence, matter was referred to larger Bench. Court held, if counsel has appeared representing parties and moved an application for adjournment or any reason, other than that he has no instructions, which was not because of absence of party, and had adjournment application rejected, such a case therefore would fall under Order 17 Rule 3 and not Rule 2. Referring to order 3 Rule 2 C.P.C., Bombay High Court observed that a party can appear in person or by a recognised Agent or Pleader acting on his behalf. Thus, where Pleader is present, duly instructed, but refuses to participate in proceedings it cannot be said that Court has proceeded ex parte but where Pleader refuses to participate on the ground that he has no instructions, meaning thereby a duly authorised Pleader was not representing party concerned and in such a case Rule 2 would apply. Bombay High Court in that case therefore, decided that since Pleader sought adjournment on the ground of want of instructions and withdrew himself, the decree must be treated to be an ex parte decree and not on merits and it was within scope of order 17 Rule 2 and not Rule 3 C.P.C. 32. Next a Full Bench of this Court in Seth Munna Lal v. Seth Jai Prakash, AIR 1970 Allahabad 257 FB. Next a Full Bench of this Court in Seth Munna Lal v. Seth Jai Prakash, AIR 1970 Allahabad 257 FB. Order 17 Rule 2 and 3 came up for consideration before Full Bench as it stood at that time and read as under : “Rule 2—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 off the modes directed in that behalf by O. 9 or make such other order as it thinks fit. Where the evidence, or a substantial portion of the evidence, of any party has already been recorded and such party fails to appear on such day, the Court may, in its discretion, proceed with the case as if such party were present, and may dispose of it on the merits. Explanation—No party shall be deemed to have failed to appear if he is either present or represented in Court by agent or pleader, though engaged only for the purpose of making an application.” Rule 3—There, in a case to which R.2 does not apply 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, proceed to decide the suit forthwith.” 33. Court held that situation in which an order is passed by Trial Court has to be examined to find out whether order is under Order 17 Rule 2 or Rule 3. It also referred to an earlier Full Bench judgment of this Court in Lalta Prasad v. Nand Kishore, (1899) ILR 22 Allahabad 66, which was decided under provisions of C.P.C., 1882. Several adjournments were granted to plaintiff by Trial Court. Ultimately when he was not present, suit was dismissed for default of appearance and for want of prosecution. His application for restoration was rejected on the ground that suit was dismissed for want of proof and therefore remedy lies in appeal. Several adjournments were granted to plaintiff by Trial Court. Ultimately when he was not present, suit was dismissed for default of appearance and for want of prosecution. His application for restoration was rejected on the ground that suit was dismissed for want of proof and therefore remedy lies in appeal. It was not approved by Full Bench in Lalta Prasad (Supra) and Court held that order of dismissal of suit was under Section 102 of C.P.C., 1882 and therefore application under Section 103 (Order 9 Rule 9 C.P.C., 1908) was maintainable. 34. Matter again came up before five Judge Bench of this Court in M.S. Khalsa v. Chiranji Lal and others, AIR 1976 Allahabad 290 FB. Following questions were referred for answer by larger Bench: “21. The facts of this appeal involve consideration of the questions- (1) Whether Rule 3 of Order XVII can at all apply if one or the other of the parties has failed to appear? (2) Whether Rule 3 of Order XVIII is attracted merely because the defaulting party had taken an adjournment on the previous date even though such party was not either on previous or the adjourned date required to do any of the acts mentioned in Rule 3? (3) Whether an application for adjournment simpliciter would be covered by the Explanation added by this Court to Order XVII, Rule 2, C.P.C.? (4) What is the significance of the word ‘forthwith’ occurring in Rule 3 of Order XVII, C.P.C.? (5) Whether an order by the Court that it was proceeding or passing a decree under Order XVII, Rule 3, C.P.C. was final and binding on the defendant, or whether the defendant was entitled to maintain an application under Order IX, Rule 13 C.P.C. on the plea that in fact and in law the decree was caused by his non-appearance, and so it was a decree passed ex parte against the defendant?” 35. The larger Bench answered the questions by majority and found that there was apparent discrepancy in the Full Bench judgments in Lalta Prasad (Supra) and Munna Lal (Supra) and view taken by Full Benches are not correct. It held that Rule 3 will apply when a party is present or is deemed to be present and has defaulted in doing acts mentioned in Rule 3, otherwise Rule 2 would apply. 36. It held that Rule 3 will apply when a party is present or is deemed to be present and has defaulted in doing acts mentioned in Rule 3, otherwise Rule 2 would apply. 36. A Single Judge of Orissa High Court in Aujuna Padhan v. Surendranath Satpathy and another, AIR 1978 Ori 175 , has taken a view that under Order 17 Rule 2 C.P.C. Court can proceed in two ways either to proceed under Order 9 and dismiss the suit for default or decree suit ex parte in the case of absence of defendant. Second course is to decide suit on merits but here Court should exercise judicial discretion and consider facts and circumstances justifying such an order. Relevant observations read as under : “So the Court in such a case does not lack the power to dispose of the suit finally on the merits. But in exercising its power under Rule 2, the Court should exercise its judicial discretion and decide whether it should dismiss the suit on merits or should pass an order under Order 9, C.P.C. or adjourn the hearing of the case on any suitable condition. Ordinarily in such a case it should adjourn the case, which view has been prevailing in the decisions of this Court for about a decade. But in a fit case, depending upon the materials on record and the facts and circumstances of the case, the Court may take recourse to either of the other two courses if its judicial conscience enables it to act that way. The discretion to dispose of the suit on merits can be exercised on judicial consideration, and such a decision can be given only when the judge consciously feels that he can adjudge judicially the merits of the respective cases of the parties on whatever materials are available on record. A judicial decision on the merits should satisfy all concerned that the said decision was arrived at on a judicious appreciation of the merits of the respective cases put forward by the parties.” 37. In the present case when we examine the matter in the light of above discussion we find that 13th October, 1999 was fixed for evidence of plaintiff. Plaintiff himself was not physically present but represented through Agent/Counsel who moved an application for adjournment which was rejected. In the present case when we examine the matter in the light of above discussion we find that 13th October, 1999 was fixed for evidence of plaintiff. Plaintiff himself was not physically present but represented through Agent/Counsel who moved an application for adjournment which was rejected. Here it is not a case where counsel did not represent plaintiff for want of instructions, and since matter was old, hence, Court rightly proceeded to decide the matter on merits. 38. In the facts and circumstances of the case, we are of considered view that stage of case on relevant date i.e. 17.9.2009 was not a situation in which order under Order 9 Rule 8 or under Order 17 Rule 2 C.P.C. was required to be passed. Rather, it was a clear case where appellants were not producing evidence and documents in their possession despite Court’s repeated orders to do so. This situation authorises Court to pronounce judgment against them or making such order in relation to suit as it thinks fit. In these circumstances, if Court below has chosen to hear defendant and fix a date for pronouncement of judgment with opportunity to appellants to submit their written or oral arguments before the date fixed for pronouncement of judgment, it has committed no legal or factual fault. As such in pronouncing impugned judgment and decree on the date fixed, Court below has not committed any mistake or exceeded its power and jurisdiction, rather by doing so it has fulfilled its duty to perform justice between parties. 39. For the aforesaid discussion, we see no good reason to interfere in this appeal. The question for determination framed herein above is accordingly answered in favour of respondents and against appellants. 40. Appeal lacks merit and is accordingly dismissed with costs throughout and impugned judgment and decree stands confirmed.