Khitish Chandra Nandi vs Chaturbhuj Thapa and Others

Manisana, J.—This appeal arises from an order of the Additional District Judge Dibrugarb made in Misc Case No 11 of 1980 on 10.2.81 rejecting an application for setting aside the dismissal of Title Suit No. 6 of 1980.

Facts,-On 16.8.80, the date fixed for hear for of Title suit No 6 of 1980, the Plaintiff prayed for adjournment of the bearing of the suit. Adjournment vas granted till 25.9.80 subject to the payment of the costs. On that day, the Plaintiff did not appear. An application was however filed for adjournment of the bearing on the ground that he was lying ill. The Court refused to grant adjournment and dismissed the suit for default of appearance. Thereafter, the Plaintiff filed an application under Order 9, Rule 9 for an order to set the dismissal aside. The trial Court rejected the application. Hence this appeal.

Mr. D.N. Barua, the learned Counsel for the Respondent, has submitted that the dismissal of the suit is under Order 17, Rule 3 and not under Order 17, Rule 2, CPC and, therefore, the Plaintiff could not apply to the Court under Order 9, Rule 9 for setting the dismissal aside.

The question which arises for consideration is whether the suit has been dismissed under Order 17, Rule 2 or under Order 17, Rule 3, Code of Civil Procedure.

Order 17, Rule 2 provides:

Where on any day to which the bearing of the suit is adjourned, the parties or any of them fail to appear, the Court (sic) proceed to dispose of the suit in one of the modes directed (sic) that behalf by Order IX or make such other order as it thinks (sic)

[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.]

(Emphasis added.

Jurisdiction of the Court under Order 9 is as follows. Under Order (sic), Rule 8, the Court shall make an order that the suit be dismissed, if the Defendant appears but the Plaintiff does not appear when the suit is call on for hearing. Under Order 9, Rule 6, if the Defendant is absent and the Plaintiff appears when the suit is called on for hearing, the Court (sic) make order that the suit be beard exparte. If parties or any of the fail to appear on the date to which the hearing of the suit has been adjourned, Order 17, Rule 2 vest in the Court a discretion to dispose of the suit dismissing the suit, or to make an order for bearing the suit exparte, exercising its power under Order 9 or to pass such other order as it thinks fit, adjournment of the hearing being one of them. However, under the explanation to Rule 2, 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 date to which hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if the parties were present. Where the suit is decided by the Court exercising its power under the explanation, the Court decides the suit on merits. It may be noted here that Order 17, Rule 2 will be applicable only where there is default of appearance by the party, although a concept of notional appearance has been introduced in the explanation.

Order 17, Rule 3 runs:

Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witness, 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.

Under Rule 3, where any party to whom time has been granted has made default in one or more of the acts specified in the rules the Court may, notwithstanding such default, if the parties are present, proceed to decide the suit forthwith, or, if the parties are, or any of them is, absent, proceed under Rule 2.

The distinction between Rule 2 and Rule 3 of Order 17 is that Rule 2 will be applicable where parties or any of them fail to appear on the day to which the hearing of the suit is adjourned, as already stated. Rule (sic) will be applicable where any party to whom time has been granted fails to perform any of the acts specified therein. However, there may be cases where default under rule 3 may be coupled filth default of appearance.

Turning to the present case, the Plaintiff failed to appear on the date to which the hearing of the suit was adjourned and the suit was dismissed. The order of dismissal does not indicate that the Plaintiff failed to perform any of the acts specified in rule 3. Therefore, it is an order of dismissal under Order 17, Rule 2, Even assuming that the Rule 3 is attracted, the dismissal was under Clause (b) of Rule 3, and not under Clause (a) of Rule 3 as the Clause (a) will be applicable only where the parties are present. Although the power to exercise under Order 17, Rule 2 is derived from Clause (b) of Rule 3 in the case of default of appearance by the Plaintiff, the power is actually exercised under Order 17, Rule 2. In such a situation, the order of dismissal was passed under Order 17, Rule 2 and not under Order 17, Rule 3.

The next question which wises for consideration is whether sufficient cause has been shown for non appearance of the Plaintiff when the suit was called on for hearing. The Plaintiff examined two witnesses, PW 1 is a doctor and PW 2 is the Plaintiff himself. The trial Court disbelieved the evidence of the doctor on the ground that the valuable documents, viz, the relevant register, case history sheet, diary of the doctor and the prescription dated 30.9.80 were not produced. However, the trial Judge has not considered the evidence of PW 2. The evidence of the doctor is that be examined the Plaintiff on 12.9.80 and he issued a certificate on 19.9.80 to take rest till 9.10.80. The date fixed for hearing was 30.9.80. Therefore, this piece of the evidence of the doctor is not directly on the issue as what is to be decided is whether the Plaintiff was ill on 30.9.80. The evidence of PW 2, the Plaintiff, is that since the night of 29.9.80, he had a stomach pain and vomiting. Therefore, he could not go to Court on 30.9.80. His evidence is not shaken in the cross-examination. Considering the facts and circumstances of the case, I am of the view that the Plaintiff has shown sufficient cause for his non-appearance on 30.9.80.

For the foregoing reasons, the appeal is allowed, and the order of the learned trial Court is set aside and the suit is restored to its original number. The Plaintiff shall pay Rs. 200/- as costs to the Defendant.

With the above direction and observation, the appeal is allowed and disposed of.