MOHANDAS Vs. GHISIA BAI

JUDGEMENT

(1.) The plaintiff-appellant herein filed a suit for declaration and for permanent injunction in the Court of Civil Judge, Class II, Harsud, District Khandwa, M.P. The said suit was filed on 26th October, 1984. 3rd May, 1994 was the date fixed for adducing evidence by the plaintiff-appellants. Instead of leading evidence, the plaintiff-appellants filed an application for seeking better particulars of the written statement. The said application was rejected. Immediately thereafter an application was moved under Order 17, Rule 16 for deletion of certain paragraphs of the written statement. The said application was also rejected. On 7th May, 1994 the plaintiff-appellants remained absent. The counsel for the plaintiff-appellants on the said date moved an application for a short adjournment for filing revision against the order passed on 3rd May, 1994 rejecting the application of plaintiff-appellants. The said application for adjournment was dismissed. Thereafter the counsel for the plaintiff-appellants moved an application under Order VII, Rule 1 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 XVII, Rule 3 of the Code of Civil Procedure. The plaintiff-appellants preferred a first appeal before the first appellate Court, but the same was dismissed. The second appeal preferred by the plaintiff-appellants was also met with the same fate. The High Court was of the view that the suit was dismissed not under Order XVII, Rule 2, but was dismissed under Order XVII, Rule 3. The validity of the judgment of the High Court is impugned in this appeal.

(2.) Learned counsel appearing for the appellants urged that the facts and circumstances of the case show that in fact the suit was dismissed under Order XVII, Rule 2 and not under Order XVII, Rule 3. Order XVII, Rule 2 provides - 'where, on any way 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 by Order IX or make such other order as it thinks fit'. Order XVII, Rule 3 provides - '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'.

(3.) 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.