AFROZ BANU Vs. NANDARAM

JUDGEMENT

(1.) THESE appeals are filed against the judgment and decree passed in R. A. Nos. 10 and 11 of 2000 on the file of the Civil Judge (Senior Division), hassan arising out of the judgment and decree passed in O. S. Nos. 18 of 1993 and 232 of 1992 on the file of the Civil Judge (Junior Division), Sakaleshpur. Both the suits have been clubbed together. A common order has been passed. The appellant is the plaintiff in both the suits filed for declaration that the eviction order obtained in O. S. No. 18 of 1993 is null and void and not binding and further seek consequential relief of injunction not to execute the decree of eviction. Perhaps the relief in O. S. No. 18 of 1993 is the duplicated version of the relief in O. S. No. 232 of 1992. It appears from the records that the plaintiff was taking adjournments time and again to adduce evidence and 18 adjournments were taken to adduce evidence. Both the suits were clubbed together at the request of the plaintiff and finally posted for evidence on 3-3-2000. On the said day by the impugned order, the suits have been dismissed for default. Compensatory costs of Rs. 3,000/- is levied on the plaintiff in each suit and further directed payment of Rs. 2,000/- as costs towards dismissal of I. A. Nos. 2, 3 and 11. On the said date, the power of attorney holder of the plaintiff was present. The Counsel was not present. The suits came to be dismissed by a detailed order narrating the defaults committed by the plaintiff on the previous occasions in adducing evidence. The Appellate court dismissed the appeals of the plaintiff confirm ing the impugned judgment of the Trial Court holding that the order of dismissal of suits passed is one under order 17, Rules 2 and 3 and Order 9, Rule 3 of the CPC. But, however, modified the order regarding costs. Hence, these second appeals.

(2.) THE case is at the stage of admission. The Counsel assisted the Court with necessary records and pleadings and argued on merits for final disposal. The following substantial question of law is framed for consideration: whether the First Appellate Court was legally justified in holding that the order of dismissal has to he construed as one under Order 17, rules 2 and 3 read with Order 9, Rule 3 of the CPC and the application of the said provisions to the facts is perversely contrary to law?

(3.) THE provisions of Order 17, Rule 2 of the CPC enables the Court to dismiss the suit when the parties or any of them tail to appear before the court. The course open to the Court is to dispose of the suit under Order 9 or make such other order as it deems fit. Under Order 9, Rule 3 when neither party appears, the Court is empowered to dismiss the suit. The explanation to order 17, Rule 2 declares that if evidence or substantial portion of evidence is already recorded, the Court in its discretion proceed with the case as if the party is present and render the verdict on merits. Under Rule 3 when the party to whom time is granted to produce evidence, fails to produce evidence or cause 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 can forthwith decide the case under Rule 2.