Kishore Jain vs Vishambhar Satnami

N.K. Agarwal, J.—The instant appeal is directed against the order dated 4-1-2005 passed by the IIIrd Additional District Judge, Raipur in Civil Suit No. 3-A/2003 whereby and where under, the suit preferred by the Appellant/ Plaintiff has been dismissed under Order 17 Rule 2 of Code of Civil Procedure.

Facts of the case, in brief, are that according to Plaintiff (Appellant herein) on 18-11-2004, the witnesses of the Plaintiff were present before the trial Court but they could not be examined since on the previous date, the Presiding Officer was on leave and matter was fixed for proper orders. The matter was then adjourned for 4-1-2005 for recording of Plaintiff''s evidence. On that day, the Plaintiff and his witnesses were absent; the Plaintiff''s counsel sought time upto 2.30 p.m. to produce witnesses; meanwhile the application under Order 14 Rule 5 of CPC has been filed by one of the Defendants the same has been dismissed by the Court despite no objection of Plaintiff''s counsel and the matter was fixed at 2.30 p.m., as prayed by Plaintiffs counsel. The matter again came up for healing on the same day at 2.30 p.m. Since the Plaintiff and his witnesses were absent, the Plaintiff''s counsel by filing an application under Order 17 Rule 1 of CPC sought an adjournment to lead evidence, but the same was dismissed and since the Plaintiff and his witnesses were absent on that day, the trial Court dismissed the suit under Order 17 Rule 2 of Code of Civil Procedure, against which the instant appeal has been preferred by the Plaintiff.

Shri. Raja Sharma, learned Counsel appearing for the Respondent No. 1 has raised a preliminary objection regarding maintainability of this appeal. According to him on 4-1-2005, the case was adjourned for Plaintiff''s evidence, neither the Plaintiff nor his witnesses were present on that date and therefore, learned trial Court has dismissed the suit under Order 17 Rule 2 of CPC and the said order, is not appellate. Against that, only remedy available to the Plaintiff was to file application for restoration of the suit under Order 9 Rule 9 of CPC For this, reliance has been placed upon para 23 of the judgment of M.P. High Court in case of Rama Rao and Others Vs. Shantibai and Others, .

As a result of these conclusions, our answers together with the questions referred to us, are stated as under:

(3) Whether an application under 0.9 CPC will lie for setting aside the dismissal of a suit in the following circumstances:

(a) The Plaintiff had not been asked to do something and he did not appear when the case was called on for hearing Yes. Order 17 Rule 2 CPC would alone be attracted.

(b) The Plaintiff was asked to do something which he did not do, nor did he appear when the case was called on for hearing. Yes. Order 17 Rule 2 Code of Civil Procedure, would alone be attracted.

(4) Whether, in the following situations, the Defendant can apply under 0. 9 Rule 13 CPC for setting aside an ex parte decree:-

(a) When the Defendant had not been asked to do something and he did not appear and the Court decided the suit on the basis of the existing material without or after taking any further evidence on record. Yes. Order 17 Rule 2 CPC would alone be attracted.

(b) When the Defendant had been asked to do something which he did not do, nor appeared when the case was called on for hearing and the Court decided the suit on the existing material without taking any further evidence for the Plaintiff. Yes. Order 17 Rule 2 CPC would alone be attracted.

(c) When he had been asked to do something which he did not do and did not appear when the case was called on for hearing and therefore, on the same day, the Court took on record ex parte evidence produced by the Plaintiff. Yes. Order 17 Rule 2 CPC would alone be attracted..

(d) When he had been asked to do something which he did not do nor appeared when the case was called on for hearing and the trial Court adjourned the hearing for recording Plaintiff''s evidence ex parte and on the next date, after recording Plaintiff''s exparte evidence, passed an ex parte decree against him. Yes. Order 17 Rule 2 CPC would alone be attracted.

Per contra, Shri B.P. Sharma, learned Counsel appearing for the Appellant/ Plaintiff would submit that as per dictionary meaning, word "Day" means any 24 hours period, and word "Adjournment day" means the day on which an organization, such as a Court or legislature, adjourns. In the present case, it cannot be said that on 4-1-2005, the Plaintiff was not present, at the best, it can be said that in the first half of the day the Plaintiff was not present and adjournment has been sought for production of witnesses in the latter half of the day after 2.30 p.m. Thereafter since an application has been filed by the Respondents No. 3 and 4 under Order 14 Rule 5 of CPC which was rejected by the trial Court as the Plaintiff''s counsel on Plaintiffs instruction participated in the proceedings not only for seeking adjournment but had argued the matter on an application preferred by the Defendant on Plaintiffs behalf which under Order 3 of CPC would be deemed as appearance of the Plaintiff and thus the impugned dismissal of the suit is under Order 17 Rule 3 being in presence of Plaintiff and not under Order 17 Rule 2 of CPC and, therefore, the appeal preferred by the Appellant is maintainable and the ratio laid down by M.P. High Court in the case of Rama Rao and Others Vs. Shantibai and Others, is not at all applicable in the present case.

I have heard learned Counsel for the parties and perused the order impugned and the order sheet of the trial Court.

The scope and ambit of the Order 17 Rule 2 and 3 falls for determination in this appeal. Order 17 Rules 2 and 3 of CPC read thus:

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 IX 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.

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.

Order 17 Rule 2 of C.RC. permits the Court to adopt any mode 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 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. If such is the factual situation, the Court may, in its discretion deem that such party was present.

Under 9 of Rule 8 of CPC if Defendant appears and the Plaintiff does not appear, when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the Defendant admits the claim or part thereof, in which case, the Court shall pass a decree against the Defendant upon such admission and, where only part of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

In Rule 2, 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. If Order 17 Rule 3(b) is read with explanation to Order 17 Rule 2, it would be clear that the explanation gives discretion to the Court to proceed with the case 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 under 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. The combined effect of the explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the Court. The explanation to Rule 2 is in the nature of a deeming provision when under given circumstances, the absentee party is deemed to be present. 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 explanation, may proceed with the case if that prima facie is the position. Therefore, a conjoint reading of expression "make such order as it thinks fit", and the explanation to Rule 2 would mean the Court may proceed to dispose of the suit if evidence on record is sufficient to substantiate the absentee party'' stand and for disposal of the suit, otherwise the Court has to dismissed the suit under Order 9 of Code of Civil Procedure

The word "day" occurring in Rule 2 would mean the day to which the hearing of the suit is adjourned. In the present case, indisputably the Plaintiff and his witnesses were absent. The Plaintiff was represented by his counsel sought adjournment, which was refused, evidence of parties was yet to be begun and, therefore the deeming provision under the explanation is not available. Order 17 Rule 2 of CPC permits the Court to dismiss the suit under Order 9 of CPC when on any day to which the hearing of the suit is adjourned, the party or any of them fail to appear. Under Order 17 Rule 3 of C.P.C, if a party and his witnesses are absent on the day when the suit is adjourned for recording evidence, then also the Court has to proceed under Order 17 Rule 2 of Code of Civil Procedure

Order 3 of CPC authorizes an advocate to plead on behalf of a party. Certainly, he cannot adduce evidence on behalf of a party and, therefore, for the purpose of Order 17 Rule 3, appearance of counsel cannot be said to be appearance of a party and, therefore, it cannot be said that since the Advocate had appeared and also argued on one application apart from seeking adjournment, then his presence would be the presence of the party and, therefore, the suit has not been dismissed under Order 17 Rule 2 of CPC but has been dismissed under Order 17 Rule 3(a) of CPC amounting to decree and thus appellate.

Almost identical facts fell for consideration of the Supreme Court in case of Mohandas and Ors v. Ghisia Bai and Ors. AIR 2002 S.C 2436. in which on the date when the case was fixed for evidence, the counsel for Plaintiff/Appellant moved an application for a short adjournment which was rejected then again, counsel for the Plaintiff moved an application under Order 17 Rule 1 of CPC on the ground that the Plaintiff is seriously ill and, therefore, the case may be adjourned, the said application was also rejected, thereafter the trial Court dismissed the suit under Order 17 Rule 3 of Code of Civil Procedure, there against, an appeal was preferred, and the case was remanded back by the Supreme Court holding that the order passed was not under Order 17 Rule 3 but was under Order 17 Rule 2 of CPC The Supreme Court in para 3 of its judgment has observed as under:

In the present case what we find is neither the Plaintiff-Appellant nor his witnesses were present on 7th May, 1994. Therefore, the case has to be dismissed under Order XVII, Rule 2. Even Rule 3 itself provides that if the parties or any of them absent, the Court shall proceed to decide the suit under Order XVII, Rule 2. In view of the said legal position, we are of the view that the view taken by the Court below was erroneous and deserves to be set aside. We, therefore, set aside the judgment under appeal and sent the case back to the trial Court to decide the matter in accordance with law.

In the light of the dictum of the Supreme Court in the above referred case and in the light of the judgment of High Court of M.P. in Rama Rao and Others Vs. Shantibai and Others, to which I am in respectful agreement and in view of the fact that the Plaintiff and his counsel were absent as aforesaid, I have no hesitation to hold that learned trial Court has dismissed the suit under Order 17 Rule 2 of CPC and not under Order 17 Rule 3(a) of CPC and therefore, the order is not appellable.

In view of the above, in the considered opinion of this Court, the appeal not being maintainable is liable to be and is hereby dismissed. However, it is made clear that the Plaintiff/ Appellant is at liberty to seek his remedy under the provisions contained in Order 9 of CPC if so advised and if such an application is filed, the trial Court shall consider the question of limitation in accordance with law in the light of the fact that the Appellant/Plaintiff was pursuing the instant appeal instead of filing said application.