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2024 DIGILAW 549 (MP)

Rambati Bai v. Govind Narayan Sharma

2024-08-08

DWARKA DHISH BANSAL

body2024
ORDER 1. This civil revision has been preferred by the applicants/plaintiffs challenging order dtd.21.4.2011 passed by 3rd Additional District Judge (Fast Track) Begamganj, District Raisen to the Court of 3rd Additional District Judge, Raisen in Misc. Appeal No.25/2006 affirming the order dtd. 7.8.2006 passed by Civil Judge Class-II, Begamganj, District Raisen in MJC No.2/2006 whereby applicants/plaintiffs' application under Order 9 Rule 9 CPC was dismissed as barred by limitation, which has been affirmed by appellate Court, even after condoning the delay in filing of application under Order 9 rule 9 CPC. 2. Facts in short are that, a civil suit for eviction on the grounds available under section 12(1) of the M.P. Accommodation Control Act, 1961 (in short 'the Act') was filed by the original plaintiff-Bhagwan Das, (now dead, through LRs-the applicants) against the respondent in which the applicants/plaintiffs' evidence was over and two witnesses of defendant were also examined, and lastly on 23.3.2005 case was fixed for examination of defendant's witness-Mamta Sharma but at this stage the plaintiffs or their counsel did not appear, resultantly trial Court dismissed the suit for want of prosecution. An application for restoration of civil suit under Order 9 rule 9 CPC was filed on 4.5.2005 by applicants/plaintiffs for restoration of civil suit. As the application was barred by limitation of 9 days, therefore, an application under section 5 of the Limitation Act was also filed. 3. Upon service of summons, the application was replied by the defendant with the prayer of its dismissal. 4. Trial court recorded evidence of the applicants and respondent and upon consideration of the fact that on 23.3.2005 the applicant Ramvati was present in the court but did not appear and holding the reason of plaintiffs’ non-appearance to be insufficient, dismissed the application under section 5 of the Limitation Act and resultantly dismissed the application under Order 9 rule 9 CPC also vide its order dtd.7.8.2006. Upon filing misc. appeal by the applicants/plaintiffs, the aforesaid order was affirmed by appellate Court vide its order dtd. 21.4.2011. However, vide paragraph 10 of its order, appellate Court condoned the delay in filing of application under Order 9 rule 9 CPC, but dismissed the misc. appeal holding it to be barred by three days. 5. Upon filing misc. appeal by the applicants/plaintiffs, the aforesaid order was affirmed by appellate Court vide its order dtd. 21.4.2011. However, vide paragraph 10 of its order, appellate Court condoned the delay in filing of application under Order 9 rule 9 CPC, but dismissed the misc. appeal holding it to be barred by three days. 5. Learned counsel for the applicants submits that on 23.3.2005 the suit was listed for further evidence of the defendant, therefore, presence of the plaintiffs/applicants was not required and only their duly engaged counsel was to appear, who only could cross-examine the defendant's witness-Mamta Sharma and in presence of already available evidence of the plaintiffs as well as of defendant, trial Court had no jurisdiction to dismiss the suit for want of prosecution and it should have passed the decision on merits even in absence of plaintiffs/applicants or their counsel. He further submits that without taking into consideration the length of delay of 9 days, trial court had committed illegality in dismissing the application under Section 5 of the limitation Act as well as application under Order 9 rule 9 CPC and despite condoning the delay in filing of application under Order 9 rule 9 CPC, appellate Court committed illegality in dismissing the misc. appeal as barred by limitation of 3 days at the time of passing of final order. With these submissions, learned counsel prays for setting aside the impugned orders. 6. Learned counsel appearing for the respondent/defendant supports the impugned orders and prays for dismissal of the civil revision. 7. Heard learned counsel for the parties and perused the record. 8. First of all, it is relevant to mention here that application under Order 9 rule 9 CPC was barred by 9 days only and upon filing application under Order 9 rule 9 CPC, the application was dismissed by trial Court on the ground of delay, however appellate court has, vide paragraph 10 of impugned order dtd.21.4.2011, condoned the delay in filing of the application under Order 9 Rule 9 CPC. As such it can very well be said that the application under Order 9 rule 9 CPC is within limitation. 9. Order sheet dtd.23.3.2005, whereby suit was dismissed for want of prosecution, shows that the suit was fixed for cross-examination on the defendant's witness-Mamta Sharma. As such it can very well be said that the application under Order 9 rule 9 CPC is within limitation. 9. Order sheet dtd.23.3.2005, whereby suit was dismissed for want of prosecution, shows that the suit was fixed for cross-examination on the defendant's witness-Mamta Sharma. Previous order sheets available on record also show that after closure of evidence of the plaintiffs/applicants, two witnesses on behalf of the defendant, were examined and the case was fixed for examination/cross-examination of defendant's third witness-Mamta Sharma. 10. In view of the aforesaid factual scenario, when plaintiffs had already adduced their evidence and in the civil suit the defendant also adduced most of his evidence by examination of two witnesses and case was fixed for further evidence of the defendant's witness-Mamta Sharma, then in my considered opinion, trial Court instead of dismissing the suit for want of prosecution, should have recorded ex-parte statement of defendant's witness-Mamta Sharma and treating the plaintiffs to be present, should have passed final judgment on the basis of available evidence, which is also the intention of Order 17 rule 2 CPC. 11. Hon’ble Supreme Court has, in the case of G. Ratna Raj (D) By LRs. v. Sri Muthukumarasamy Permanent Fund Ltd. & Anr. (2019) 11 SCC 301 , relied upon its previous decision in the case of B. Janakiramaiah Chetty v. A.K. Parthasarthi & Ors. (2003) 5 SCC 641 , and held as under : “18. Order 17 Rules 2 and 3 read as under : " Order 17 Rules 2 & 3 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 9 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 its discretion, proceed with the case as if such party were present. 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 its discretion, proceed with the case as if such party were present. 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." 19. Order 17, rule 2 of the Code provides that 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 9 or make such other order as it thinks fit. 20. The Explanation appended to Order 17, rule 2 of the Code provides that 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 its discretion, proceed with the case as if such party was present. 21. Order 17, rule 3 of the Code, however, 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 are, or any of them is, absent, proceed under rule 2. 22. 22. The scope of Order 17, rule 2 and Order 17, rule 3 of the Code came up for consideration before this Court in the case of B. Janakiramaiah Chetty v. A.K. Parthasarthi & Ors., (2003) 5 SCC 641 wherein Justice Arijit Pasayat speaking for the Bench held in paras 7 to 10 as under:- "7. In order to determine whether the remedy under Order 9 is lost or not what is necessary to be seen is whether in the first instance the Court had resorted to the Explanation of rule 2. 8. The Explanation permits the court in its discretion to proceed with a case where substantial portion of 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. As the provision itself shows, discretionary power given to the court is to be exercised in a given circumstance. For application of the provision, the court has to satisfy itself that: (a) substantial portion of the evidence of any party has been already recorded; (b) such party has failed to appear on any day; and (c) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the court to adopt any of the modes provided in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The Explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the court to act under the specified circumstance i.e. where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the court may in its discretion deem as if such party was present. Under Order 9, rule 3 the Court may make an order directing that the suit be dismissed when neither party appears when the suit is called on for hearing. There are other provisions for dismissal of the suit contained in rules 2, 6 and 8. We are primarily concerned with a situation covered by Rule 6. The crucial words in the Explanation are "proceed with the case". There are other provisions for dismissal of the suit contained in rules 2, 6 and 8. We are primarily concerned with a situation covered by Rule 6. The crucial words in the Explanation are "proceed with the case". Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the Court or not. 9. In Rule 2, the expression used is "make such order as it thinks fit", as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17, rule 3 (b), the only course open to the court is to proceed under rule 2, when a party is absent. Explanation thereto gives a discretion to the court to proceed under rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the court has no option but to proceed as provided in rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, rule 3 empowers the court to decide the suit forthwith. The basic distinction between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to rule 2 and rule 3 is that a discretion has been conferred on the court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present. 10. The crucial expression in the Explanation is "where the evidence or a substantial portion of the evidence of a party". There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. 10. The crucial expression in the Explanation is "where the evidence or a substantial portion of the evidence of a party". There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The court while acting under the xplanation may proceed with the case if that prima facie is the position. The Court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the Court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision." 23. Now when we examine the facts of the case at hand keeping in view the law laid down in the case of B Janakiramaiah Chetty (supra), we find that the plaintiff's evidence was recorded and his case was also closed. It is not in dispute that the defendants were placed ex parte on the date when the case was fixed for recording defendants' evidence but the same was not recorded due to the defendants' absence on the said date. In other words, it was a case where the defendants did not lead any evidence. 24. In such a situation arising in the case, in our view, the case at hand would not fall under Explanation to Order 17, rule 2 of the Code because in order to attract the Explanation, "such party" which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treat "such party" as "present" on that day and is accordingly empowered to proceed in the suit. 25. In this case, the party, who was absent and was proceeded ex parte was the "defendants" and they had not led any evidence whereas it was the plaintiff, who was present and had led his evidence. 26. 25. In this case, the party, who was absent and was proceeded ex parte was the "defendants" and they had not led any evidence whereas it was the plaintiff, who was present and had led his evidence. 26. In other words, if the plaintiff had remained absent and was found to have led evidence, the Court could have invoked its powers under Explanation to Order 17, rule 2 of the Code treating the plaintiff as "present" for passing appropriate orders. Such is, however, not the case here. 27. Similarly, in converse situation, if the defendants had remained absent (as has happened in this case) on that date and if it would have noticed that they had adduced the evidence either fully or substantially prior to the date on which they were proceeded ex parte, the Court could have invoked its powers under Explanation to Order 17, rule 2 of the Code treating the defendants as "present" on that day for passing appropriate orders in the suit. Such is, however, again not the case here. 28. We are, therefore, of the view that since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Order 17, rule 3 (b) read with Order 17, rule 2 of the Code for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order 9 of the Code or could have made any other order as it thinks fit.” 12. While passing the order dtd.23.3.2005 or while deciding the application under Order 9 rule 9 CPC, both the Courts below have not taken care of the aforesaid factual and legal position and taking very harsh view, dismissed the applications/appeal on one or other ground, not acceptable in the eyes of law. 13. In view of the aforesaid discussion, in my considered opinion both the impugned orders dismissing the application under Order 9 rule 9 CPC, are not sustainable and are hereby set aside. Resultantly, the application under Order 9 rule 9 CPC stands allowed and civil suit stands restored to its original number, with the further direction to trial court to proceed with the suit and to decide the same on merits from the stage when the plaintiffs did not appear i.e. from 23.3.2005. 14. Resultantly, the application under Order 9 rule 9 CPC stands allowed and civil suit stands restored to its original number, with the further direction to trial court to proceed with the suit and to decide the same on merits from the stage when the plaintiffs did not appear i.e. from 23.3.2005. 14. Both the parties are directed to remain present before trial Court on 9.9.2024. 15. With the aforesaid, this civil revision is allowed and disposed off. 16. Misc. application(s), pending if any, shall stand closed.