Somari Bai (Smt.) vs Sakuntala Thakur and Others (Smt.)

T.P. Sharma, J.—By this revision the applicant has challenged legality and propriety of the order dated 4-2-2002 passed by the 3rd Additional District Judge, Jagdalpur, in Misc. Civil Appeal No. 27/2000 affirming the order dated 5-9-2000 passed by the 1st Civil Judge Class II, Jagdalpur, in Civil MJC No. 3/99, whereby the application under Order 9 Rule 9 of the Code of Civil Procedure, 1908 (for short ''the Code'') was dismissed on the ground that the order dated 28-9-99 passed in Civil Suit No. 171- A/98 was under Order 17 Rule 3 of the Code and no application for restoration of the suit is maintainable.

Order is challenged on the ground that the learned Court below has failed to exercise the jurisdiction vested on it by dismissing the miscellaneous appeal as not maintainable on the ground that the order dated 28-9-99 was passed under Order 17 Rule 3 of the Code.

Facts of the case, in brief, are that the present applicant has filed civil suit against the non-applicants which was pending for evidence on 28-9-99 and on that date the plaintiff and the defendants were not present. Application for adjournment under Order 17 Rule 1 of the Code was filed by Counsel for the plaintiff and application under Order 17 Rule 3 of the Code was filed by Counsel for the defendants. After hearing the parties, the Court has rejected the application filed by Counsel for the plaintiff for adjournment and dismissed the suit on the ground that sufficient opportunity has been provided to the plaintiff for adducing evidence, but the plaintiff has utterly failed to adduce evidence. Memo of cost was also prepared. Application for restoration of the suit under Order 9 Rule 9 of the Code was filed which also dismissed vide order dated 5-9-2000 passed in Civil MJC No. 3/99 on the ground that the application under Order 9 Rule 9 of the Code for restoration of the suit is not maintainable because the order was passed under Order 17 Rule 3 of the Code. The order dated 5-9-2000 was challenged before the 3rd Additional District Judge, Jagdalpur and the learned Additional District Judge has held that the suit has been dismissed under Order 17 Rule 3 of the Code and the miscellaneous appeal is not maintainable against such order.

I have heard learned Counsel for the parties and perused copy of the order impugned, copy of the order dated 5-9-2000 passed by the 1st Civil Judge Class II, Jagdalpur in Civil MJC No. 3/99 and copy of the order dated 28-9-99 passed by the 1st Civil Judge Class II, Jagdalpur in Civil Suit No. 171-A/98.

Learned Counsel for the applicant submits that on the date of hearing, i.e., 28-9-99 the plaintiff was not present and application for adjournment was filed by Counsel for the parties which was dismissed on the ground that ample opportunity has been given to the plaintiff and the suit was dismissed under Order 17 Rule 3 of the Code, and memo of cost was prepared. Learned Counsel further submits that on the date of hearing, i.e., 28-9-99 the plaintiff, i.e., the party was not present, therefore, the Court was only competent to pass order under Order 17 Rule 3 (b) of the Code and the restoration application is competent against such order under Order 9 Rule 9 of the Code, but the learned Civil Judge has dismissed the application illegally, the learned Additional District Judge also dismissed the miscellaneous appeal illegally and failed to exercise the jurisdiction vested on it. Learned Counsel placed reliance in the matter of Mohandas and Ors. v. Ghisia Bai and Ors. AIR 2002 SC 2436, in which considering the fact that the suit was fixed for leading evidence by plaintiff, instead of leading evidence plaintiff filed application for seeking better particulars of written statement, application rejected and another application for deleting certain paras in written statement also rejected, after dismissal of such application the application for adjournment on the ground of illness was filed which was also rejected and the Court dismissed the suit under Order 17 Rule 3 of the Code, the Apex Court has held that at the time of such application or order neither the plaintiff nor his witnesses were present, therefore, dismissal of suit under Order 17 Rule 3 of the Code was not proper and the suit ought to have been dismissed under Order 17 Rule 2 of the Code.

On the other hand, learned Senior Advocate appearing on behalf of non-applicant No. 8 argued that ample opportunity has been given to the plaintiff to lead evidence but the plaintiff has utterly failed to adduce evidence, therefore, no option except to dismiss the suit was left with the Court and Counsel for the plaintiff having instruction for adjournment was present at the time of passing such order, therefore, the order was one under Order 17 Rule 3 of the Code but not under Order 17 Rule 3 (b) of the Code, and no application for restoration was maintainable against such order of dismissing the suit. Learned Additional District Judge has rightly dismissed the miscellaneous appeal as the same was not maintainable.

Admittedly, on 28-9-99 the plaintiff was not present, only adjournment application was filed by Counsel for the plaintiff which was rejected and the suit was dismissed. Rules 2 and 3 of Order 17 of the Code read as follows:

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 3 of the Code empowers the Court to proceed under Clause (a) or (b) when the parties fail to produce evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit. When such party present, the Court is under obligation to decide the suit forthwith under Clause (a) of Rule 3 of Order 17 of the Code, but when the parties are absent, the Court is required to proceed under Rule 2 of Order 17 of the Code, inter alia, to proceed in accordance with the Order 9 of the Code. If the suit is dismissed in terms of Order 9 of the Code, restoration application under Order 9 Rule 9 of the Code is competent as maintainable. If the application for restoration of a suit under Order 9 of the Code is dismissed, remedy of miscellaneous appeal is available to the aggrieved party under Clause (c) of Order 43 of Rule 1 of the Code.

What amounts to presence of party has been elaborately discussed by the Constitution Bench of the M.P. High Court in the matter of Ramarao Marotirao and Ors. v. Shantibai widow of Madhorao and Ors. 1977 MPLJ 364, in which five Judges Constitution Bench of the M.P. High Court has held that if parties are absent, Counsel for the parties are present and apply for adjournment, and the same is refused, the order would be under Order 17 Rule 2 of the Code. The questions which were answered in Para 23 of the said judgment reads as follows:

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

-------------------------------------------------------------------------- Questions Answers -------------------------------------------------------------------------- (1) If, when a suit is called on It will be no appearance of the for hearing, a party''s Counsel party and Rule 2 of Order 17, appears and seeks adjournment but CPC alone would when adjournment is refused he be attracted. However, in such a retires saying that he has no case the defaulting party must instructions whether this will show ''sufficient cause'' for amount to "appearance" of the non-appearance as well as for not party whom the Counsel represents? fully instructing the Counsel. -------------------------------------------------------------------------- (a) If the Counsel had sought adjournment because he was instructed by his client to ask for an adjournment only, and not to proceed with the trial if adjournment be refused ? -------------------------------------------------------------------------- (b) If the Counsel feels a It will be no appearance of the necessity to seek adjournment so party and Rule 2 of Order 17, that he may prepare himself and, CPC alone would on his own, seeks adjournment. be attracted. -------------------------------------------------------------------------- (2) If, when a case is called on It will be no appearance of the for hearing, the Counsel appears party and Rule 2 of Order 17, (without making any request for CPC alone would adjournment) merely to inform the be attracted. Court that he has no instructions and, therefore, would not appear, will it still amount to appearance of a Counsel for the purposes of Order 9 Rule 8 or Order 17 Rule 2, Civil Procedure Code ? -------------------------------------------------------------------------- (3) Whether an application under Order 9, CPC will lie for setting aside the dismissal of a suit in the following circumstances: -------------------------------------------------------------------------- (a) The plaintiff had not been Yes, Order 17, Rule 2, Civil asked to do something and he did Procedure Code would alone be not appear when the case was attracted. called on for hearing. -------------------------------------------------------------------------- (b) The plaintiff was asked to do Yes, Order 17, Rule 2, Civil something which he did not do, nor Procedure Code would alone be did he appear when the case was attracted. called on for hearing. -------------------------------------------------------------------------- (4) Whether, in the following situations, the defendant can apply under Order 9, Rule 13, Civil Procedure Code for setting aside an exparte decree: -------------------------------------------------------------------------- (a) When the defendant had not Yes, Order 17, Rule 2, Civil been asked to do something and he Procedure Code would alone be did not appear and the Court attracted. decided the suit on the basis of the existing material without or after taking any further evidence on record. -------------------------------------------------------------------------- (b) When the defendant had been Yes, Order 17, Rule 2, Civil asked to do something which he did Procedure Code would alone be not do, not appeared when the case attracted. was called on for hearing and the Court decided the suit on the existing material without taking any further evidence for the plaintiff. -------------------------------------------------------------------------- (c) When he had been asked to do Yes, Order 17, Rule 2, Civil something which he did not do and Procedure Code would alone be did not appear when the case was attracted. called on for hearing and therefore, on the same day, the Court took on record ex parte evidence produced by the plaintiff. -------------------------------------------------------------------------- (d) When he had been asked to do Yes, Order 17, Rule 2, Civil something which he did not do, nor Procedure Code would alone be appeared when the case was called attracted. 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 ex parte evidence, passed an ex parte decree against him. --------------------------------------------------------------------------

In the light of the decision, in the matters of Mohandas (supra), Ramarao (supra) and the provisions contained in Order 17 Rule 3 (a) and (b) of the Code, order dated 28-9-99 was the order passed only under Order 17 Rule 3 (b) of the Code and not under Order 17 Rule 3 (a) of the Code and restoration application was maintainable against such order. The Trial Court has illegally dismissed the application, even the Appellate Court has not considered the aforesaid legal position and has dismissed the miscellaneous appeal as not maintainable and thereby failed to exercise the jurisdiction vested on it. It is also pertinent to note that while dismissing the suit allegedly under Order 17 Rule 3 (a) of the Code, the Civil Judge Class II has failed to drawn up the decree. In the circumstances, the order impugned dated 4-2-2002 is not sustainable.

In the result, the revision is allowed. Order impugned dated 4-2-2002 passed by the 3rd Additional District Judge, Jagdalpur, in Misc. Civil Appeal No. 27/2000 and subsequently, the order dated 5-9-2000 passed by the 1st Civil Judge Class II, Jagdalpur in Civil MJC No. 3/99 are hereby set aside. 1st Civil Judge Class II, Jagdalpur is directed to consider the application filed under Order 9 Rule 9 read with Section 151 of the Code on merits. No order as to costs.

Parties are directed to remain present before the 1st Civil Judge Class II, Jagdalpur on 28th July, 2009 for further progress of the case.