KISHORE JAIN Vs. VISHAMBHAR SATNAMI

JUDGEMENT

(1.) The instant appeal is directed against the order dated 4-1 -2005 passet by the Illrd Additional District Judge, Raipur in Civil Suit No. 3 -A/2003 whereby and whereunder, the suit preferred by the appellant/ plaintiff has been dismissed under Order 17 Rule 2 of C.P.C.

(2.) 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 C.P.C. 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 plaintiffs counsel by filing an application under Order 17 Rule 1 of C.P.C. 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 C.P.C, against which the instant appeal has been preferred by the plaintiff.

(3.) Shri. Raj a 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 plaintiffs 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 C.P.C. and the said order, is not appellable. Against that, only remedy available to the plaintiff was to file application for restoration of the suit under Order 9 Rule 9 of C.P.C. For this, reliance has been placed upon, para 23 of the judgment of M.P. High Court m case oi Rama Rao and others Vs. Shantibai and others, 1977 AIR(MP) 222 Court m case oi Rama Rao and others Vs. Shantibai and others .