Rameshwar Nath vs Rannit Singh and others

J.V. Gupta, J.—This appeal is directed against the remand order passed by the Additional District Judge, Patiala, dated 6.11.1986, whereby decree for specific performance of the agreement to sell, passed in favour of the plaintiff was set aside and the case was remanded for fresh decision after allowing defendants No. 2 and 3, reasonable opportunity to lead their evidence.

Plaintiff Rameshwar Nath filed a suit for specific performance on the basis of an agreement to sell dated 4.7.1960. It was stipulated in the agreement that the defendant Jaimal Singh would execute the sale deed in his favour after getting the sale certificate from the Pepsu Township Development Board. That being so the suit was filed on 24.8.1981.

The suit was contested by subsequent defendant-vendees No. 2 and 3. Many opportunities were given to them for adducing their evidence but they failed. Ultimately on 11.12.1984, their counsel pleaded no instructions on their behalf. As a result thereof, the evidence of the defendants was closed on that very day and the case was adjourned for arguments. Later on an application dated 2.1.1985, was filed on behalf of the defendants for allowing them to lead evidence which was declined by the trial Court Ultimately, the plaintiff''s suit was decreed vide trial Court judgment dated l5.2.1987.

Aggrived with the same, the defendents No. 2 and 3, that is the subsequent vendees, filed the appeal. There, an argument was raised that the trial Court invoked the provisions of Order 17 Rule 3 of the CPC and closed the defendants'' evidence but at the same time adjourned the case for arguments whereas the suit should have been decided forthwith. This contention prevailed with the learned Additional District Judge, in view of the earlier judgments of this Court reported in Basant Kaur an another v. Smt. Gurdyalo (1975) 77 P.L.R. 772, State of Punjab v. Radh Kishan (1978) 80 P.L.R. 454 Consequently, on that basis alone, he set aside the judgment and decree of the trial Court and remanded the case back for fresh decision after allowing the defendants reasonable opportunity to lead their evidence.

The learned counsel for the plaintiff appellant submitted that the view taken by the lower appellate Court was wrong and illegal. The cafes relied upon by the lower appellate Court did not deal with the amended provisions and, therefore, were of no help to the defendants According to the learned counsel under Order 17 Rule 3 of the Code of Civil Procedure, the Court could proceed to decide the suit forthwith or proceed under Rule 7 thereof which means in one of the modes directed in that behalf by Order 9 of the Code of Civil Procedure. In support of this contention, he referred to a Supreme Court judgment in Prakash Chander Manchanda and Another Vs. Janki Manchanda, .

After hearing the learned counsel for the parties, I find force in the contention raised on behalf of the appellant. In the said Supreme Court judgment, it was held, if on a date fixed, one of the parties to the suit remains absent and for that party no evidence has been examined up to that date, the Court has no option but to proceed to dispose of the matter in accordance with Order 17, Rule 2 in any one of the modes prescribed under Order 3 of the Civil Procedure Code. After the Amendment by Act 104 of 1976 to Order 17, Rules 2 and 3 in cases where a party is absent only course is as mentioned in Order 17 Rule 3(b) to proceed under Rule 2. Therefore in absence of the defendant, the Court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as now stands also clearly lays down thus if one of the parties fails to appear the Court has to proceed to dispose of the suit in are of the modes directed under Order 9. The Explanation to Rule 2 gives discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. In these circumstances the remand order passed by the learned Additional District Judge is liable to be set aside.

Consequently, this appeal succeeds. The order dated 6.11.1986, is set aside and the case is sent back to the Additional District Judge, Patiala, for deciding the appeal on merits in accordance with the law The parties have been directed to appear in that Court on 10.11.1986.