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Judgment
This appeal has been filed by the appellant against the order dated 21.08.2019, whereby the learned First Additional District Judge, Nagod, District Satna, rejected the application filed under Order IX Rule 4 read with Section 151 of the Code of Civil Procedure, 1908 (CPC), for restoration of Civil Suit No. 4-A/13, on the ground that the application was not maintainable as the order dated 18.09.2018 had been passed under Order XVII Rule 3 CPC. It was held that Order IX Rule 4 CPC was not applicable and that the proper remedy was to file an appeal against the said order.
The facts of the case, in brief, are that the appellant filed a civil suit seeking declaration of title, possession, mesne profits and permanent injunction in respect of Khasra No. 547/2Kha, measuring 0.084 hectare, situated at Village Rangla, Tehsil Uchehra, District Satna. The appellant claimed ownership on the basis of a registered sale deed dated 01.06.1996 and alleged that Respondent No. 2 had illegally encroached upon a portion of the suit land by constructing a house thereon. On the appellant's application, the land was demarcated by the Revenue Inspector, who found encroachment by Respondent No. 2. The said demarcation was confirmed by the Tahsildar on 28.12.2012. Despite proceedings under Sections 250 and 250-A of the M.P. Land Revenue Code, the encroachment was not removed, which led to the filing of the civil suit. The Trial Court had also granted an interim injunction restraining the respondents from interfering with the appellant's possession. When the suit was fixed for the appellant's evidence on 18.09.2018, neither party appeared before the Trial Court. Consequently, the suit was dismissed for want of prosecution under Order XVII Rule 3 CPC. The appellant thereafter filed an application for restoration, which was rejected as not maintainable. The appellant initially preferred a First Appeal, which was withdrawn with liberty, and thereafter filed the present Miscellaneous Appeal challenging the orders dated 18.09.2018 and 21.08.2019.
Learned counsel for the appellant submitted that the learned First Additional District Judge, Nagod, District Satna erred in dismissing the suit under Order XVII Rule 3 CPC on 18.09.2018. On the said date, both the parties were absent. Therefore, it cannot be said that the plaintiff, despite being present, deliberately failed to produce evidence or comply with any direction of the Court. It is submitted that the suit ought to have been restored and decided on merits. The appellant/plaintiff, therefore, prays for setting aside the orders dated 18.09.2018 and 21.08.2019 and for restoration of the suit.
Learned counsel for the respondents/defendants supports the orders passed by the Trial Court. It is submitted that the plaintiff failed to appear on the date fixed for his evidence and did not take steps to prosecute the suit. Therefore, the learned First Additional District Judge, Nagod, District Satna rightly dismissed the suit. It is prayed that the appeal be dismissed.
I have heard learned counsel for the parties and also perused the record.
On perusal of the record, it appears that the learned First Additional District Judge, Nagod, District Satna dismissed the suit on 18.09.2018 in absence of both the parties, i.e., the plaintiff as well as the defendants. The order dated 18.09.2018 shows that the case was fixed for the plaintiff's evidence. However, when the case was called, none appeared on behalf of either party and, consequently, the suit was dismissed for want of prosecution.
Thus, it is clear that on 18.09.2018, neither the plaintiff nor the defendants appeared before the Trial Court. In such circumstances, the dismissal of the suit could not properly be treated as a dismissal under Order XVII Rule 3 CPC. The Trial Court, therefore, erred in rejecting the appellant's application for restoration solely on the ground that the order dated 18.09.2018 had been passed under Order XVII Rule 3 CPC. The appellant was entitled to seek restoration of the suit in accordance with law.
Upon perusal of the Order XVII Rule 3 CPC, it is clear that in case where parties or any of them are absent, the Court is required to proceed under Rule 2. It is only when parties are present that the Court can proceed to decide the suit forthwith under Rule 3. In this regard, the Coordinate Bench has laid down law in case of State Bank of India Vs. Nandram (deceased) Through LRs. reported in ILR 2001 MP 544, the relevant paras are reproduced hereunder:-
"The moot question requiring determination is whether the order dated 3-8-1996 dismissing the suit of the plaintiff was passed under Rule 3 or under Rule 2 of Order 17, Civil Procedure Code. Rule 2 of Order 17, Civil Procedure Code, provides for the procedure where parties fail to appear on any day to which the hearing of the suit is adjourned. Rule 3 deals with a situation where any party fails to produce his evidence, or to perform any other act necessary to the further progress of the suit for which time has been allowed by the Court. Rule 3 reads as follows:
“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)”.
4-A. By the amendment of 1976, Clauses (a) and (b) have been substituted for the words “Proceed to decide the suit forthwith” to define clearly the scope of Rule 3, so as to state the action to be taken by the Court when (i) the parties are present and (ii) they are absent.
5.In a case where parties or any of them are absent, the court is required to proceed under Rule 2. It is only when parties are present that the Court can proceed to decide the suit forthwith under Rule 3. For application of Rule 3, 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 steps; and (3) the party concerned should have appeared in Court. A reading of Rule 2 and Rule 3 in juxtaposition would make the difference between Rule 2 and Rule 3 clear. Whereas under Rule 2, the Court can, in its discretion, in the absence of the parties or any of them, grant a further adjournment, or proceed to dispose of the suit in one of the modes prescribed in Order 9, but under Rule 3, notwithstanding the default of any party failing to do the specified acts for which time has been allowed, as the parties are present, the Court may, if it does not grant further adjournment, proceed to a decision on merits upon whatever materials are before it. 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 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 not under Rule 3.
6.Full Bench of this Court in Ramarao v. Shantibai, 1977 MPLJ 364 : 1977 JLJ 147 dealing with the scope of Rule 2 and Rule 3 as they stood prior to the amendment of 1976 held;
“If, when a suit is called on for hearing, a party's counsel appears and seeks adjournment but when the adjournment is refused he retires saying that he has no instructions, it will be no appearance of the party and Rule 2 of Order 17, Civil Procedure Code along would be attracted. However in such a case the defaulting party must show cause for non-appearance as well as for not fully instructing the counsel. The same is the position if the counsel had sought adjournment because he was instructed by his client to ask for adjournment only, and not to proceed with the trial if adjournment be refused; or if the counsel feels a necessity to seek adjournment so that he may prepare himself, and on his own, seeks adjournment; or if the counsel appears merely to inform the Court that he has no instructions. In such circumstances Rule 2 of Order 17 applies and an application lies under Order 9, Rule 9.”
7.The decision in Ramarao (supra) in fact interprets unamended provisions offer Rule 2 and Rule 3 as they now stand after amendment. In the instant case, as already pointed out, no hearing had commenced in the suit when the counsel appeared and merely made prayer for adjournment which was refused by the Court. Under the circumstance, the Court could not have proceeded under Rule 3 and the Order of dismissal passed by it would be deemed to be an order passed under Rule 2 and would be subject to the provisions of Order 9, Civil Procedure Code. The Court below therefore, erred in law in refusing to entertain application for restoration made under Order 9, Rule 9, Civil Procedure Code. It is a different matter that the application may not succeed on merits inasmuch as the Court would be free to hold that no sufficient cause for absence of the plaintiff on the date when his suit was called on for hearing, was made out."
In the present case, it is seen that on the date of hearing, i.e., 18.09.2018, both the plaintiff and the defendants were absent. No one appeared on behalf of either party. Therefore, in such circumstances, the order passed by the trial Court on the said date falls within the purview of Order XVII Rule 2 of the CPC and not Order XVII Rule 3 of the CPC. The trial Court, therefore, erred in holding that the order dated 18.09.2018 was passed under Order XVII Rule 3 of the CPC and that the restoration application was not maintainable and the order was appealable. The trial Court ought to have considered the application under Order IX Rule 4 of the CPC on its merits. Instead, it wrongly held that the application was not maintainable.
In view of the facts and circumstances of the case, this Court is of the considered opinion that the learned First Additional District Judge, Nagod, District Satna, erred in dismissing an application filed under Order IX Rule 4 read with Section 151 of CPC. Therefore, the order dated 21.08.2019 passed by the learned First Additional District Judge, Nagod, District Satna, is hereby set aside.
Consequently, Civil Suit No. 04-A/2013 is restored to its original number, subject to payment of costs of Rs.25,000/-(Rupees Twenty-Five Thousand only) by the plaintiff to the defendants within a period of four months from today. It is made clear that the aforesaid amount shall be deposited by the plaintiff in the savings bank account of the defendants.
Accordingly, the present appeal is allowed and disposed of.