Chamaru vs Chippal

R.S. Pathak, C.J.—This is a Plaintiff''s second appeal against a decree of the lower appellate court affirming the dismissal of the plaintiff''s suit by the trial court.

After the plaint and written statement had been filed in the suit, the trial court framed issues on 24th May, 1967, and posted the case for Plaintiff''s evidence on 14th August, 1967. As the Presiding Officer was on tour on the date fixed, the case was not taken up and was fixed for 11th December, 1967. The Presiding Officer being on leave, the case was next fixed for 3rd May, 1968, for recording the plaintiff''s evidence. On that date, the Plaintiff stated that he dropped all his witnesses except one, the Office Kanungo. The Office Kanungo had been served but was not present. Accordingly, the trial court recorded the following order:

The counsel for the parties present. The P.Ws. not present. The Plaintiff''s witnesses except Office Kanungo arc dropped. Warrant bailable on process for Rs. 200 to issue for 24-6-1968 and the plaintiff should also be present on that date.

The plaintiff did not deposit the process fee for issue of a bailable warrant and the plaintiff also did not appear on the date fixed. On 24th June, 1968, the trial court made the following order:

Counsel for the parties present. Neither the plaintiff nor his evidence present, Nor any summoned through court. The suit is accordingly dismissed under Order 17, Rule 3, Code of CPC Announced. The file after completion be consigned.

Sd/- C.S SAUHTA, Sub-Judge, 1st Class, Kangra.

The plaintiff appealed against the dismissal of his suit, and the appeal has been dismissed by the learned District Judge, Kangra.

Before the lower appellate court the appellant contended that Order 17, Rule 3, CPC did not apply and the suit could not be dismissed under that provision. The plea was rejected. The same plea is raised now.

Order 17, Rule 3 provides:

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, proceed to decide the suit forthwith.

The appellant contends that Order 17, Rule 3 comes into play only in cases where on the application of a party time has been granted to him to produce his evidence, and that as in the present case the order of 3rd May, 1968, was not passed at the instance of the appellant no action could be taken under Order 17, Rule 3. In my opinion, the contention is without substance. The appellant had proposed a number of witnesses, and on 3rd May, 1968, he dropped all the witnesses except the Office Kanungo. As the Office Kanungo was not present despite service, an order was made by the trial court directing a bailable warrant to issue. When the trial court made the order, it was in tacit recognition of the fact that the appellant wished to summon that witness. The list of witnesses had been filed earlier, and on 3rd May, 1968, it was modified to the extent that the Office Kanungo alone was summoned as a witness. The application for summoning of witnesses was still alive, and the order of the trial court on 3rd May, 1968, for procuring the attendance of the Office Kanungo as a witness must be attributed to the appellant''s application. Viewed from this stand point, the order of 3rd May, 1968, must be taken as an order granting time to the appellant to cause the attendance of his witness. It will be noted that the said order required the deposit of the process fee by the appellant and also his personal presence. The appellant did not comply with the order, and the suit was dismissed on 24th June, 1968. The dismissal of the suit can be rightly attributed to the jurisdiction under Order 17, Rule 3.

It is urged by the Appellant that the case falls under Order 17, Rule 2. That provision, to my mind, does not apply because it is not a case where the appellant failed to appear. His counsel was present and there is nothing to show that he did not have adequate authority to represent the appellant. Order 17, Rule 2 cannot be invoked.

The appellant relies on Rukmansa Rajansa Hosmani Vs. Shankargouda Basangouda Lakhyal, ; Rqfiq Ahmad and Anr. v. Mohammad Shafi and Ors AIR 1919 All. 423; Rukhma Bai v. Daulti AIR 1956 Bho 26 and Moll Lal Surajmal Joshi v. Mohammad Shafi and Anr. AIR 1956 Nag 179 but in my opinion none of those cases is of any assistance to the appellant.

It is next contended by the appellant that as no evidence had been led it was not possible to try the suit on its merits and, therefore, also the suit could not have been dismissed under Order 17, Rule 3 Now merely because the parties have led no evidence in a suit does not mean that the suit cannot be dismissed. A plaintiff may file a suit and then be unable to produce any evidence in support of his case. It is open to the court to dismiss the suit on its merits. Dismissal on the merits implies, in the circumstances, that the allegations contained in the plaint were not made out, and the trial court, therefore, has dismissed the suit.

The appeal fails and is dismissed with costs.