Central Bank of India vs M/s Arestan

N.K. Modi, J.

Being aggrieved by order dated 30th Oct. 1999, passed by IXth Addl. District Judge, Jabalpur, whereby an application under order 9 Rule 4 C. P. C. filed by the appellant for restoration of Civil Suit No. 46-B/ 95, has been dismissed, the present appeal has been filed.

Short facts of the case are that the appellant filed a suit for realization of Rs. 83,911.96 which was registered as C.S. No. 46-B/95, which was dismissed on 29.6.1995 on the ground that the witnesses of the appellant were not present and the application filed by the appellant for adjournment was dismissed. The application for restoration filed by the appellant within the statutory period, which was registered as M.J. C. no. 14/95, and was dismissed on the ground that since the suit has been dismissed U/0. 17 Rule 3 CPC, therefore the appeal is maintainable and the application for restoration is not maintainable.

Learned counsel for the appellant placed reliance on a case reported in State Bank of India Vs. Nandram (deceased) through L.Rs. and Others, wherein, this Court has held that following conditions are necessary for application of Order XVII Rule 3 C. P.C.:

For application of Order 17 Rule 3 of the CPC 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 step, 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.

In this case, the adjournment was sought and this Court found that in such circumstance, Rule 2 of Order 17 applies and application lies under Order 9 Rule 9 C.P.C.

In view of aforesaid position of law, the appeal stand allowed. The impugned order dated 30th Oct. 1999, passed by the learned Court below in M.J.C. No. 14/1995 is set aside. No order as to costs.

C.C. as per rules.