S.S.BRAR Vs. GULNER ZIA

JUDGEMENT

(1.) This appeal is directed against the order dated 16.12.2013 passed by a learned Single Judge of this court in I.A No. 19373/2013 in CS(OS) No. 1888/2009. The said application was filed purportedly under Order IX Rule 9 of the Code of Civil Procedure, 1908. By virtue of the said application, the appellant / plaintiff sought recall of the order dated 29.10.2013 whereby the suit filed by the appellant was dismissed by noticing that despite repeated opportunities, the appellant / plaintiff had failed to lead evidence.

(2.) Before the learned Single Judge it was contended on behalf of the appellant / plaintiff that the application under Order IX Rule 9 CPC sought to recall the order dated 29.10.2013 on the ground that the order ought to be construed as one dismissing the suit for non-prosecution and for that reason the provisions of Order IX CPC would apply. It was contended on behalf of the appellant / plaintiff, before the learned Single Judge, that the order dated 29.10.2013 could not be construed as an order under Order XVII Rule 3 CPC, inasmuch as, the court had not actually decided the case on merits notwithstanding the fact that there was no evidence led by the appellant / plaintiff. Several decisions had been relied upon by the appellant / plaintiff before the learned Single Judge. Even before us, the learned counsel appearing for the appellant placed reliance on the following decisions:-

(3.) The learned Single Judge found that the decisions relied upon by the appellant / plaintiff were all distinguishable on facts and that those judgments were in the context of non-appearance by one of the parties to the suit. The learned Single Judge observed that the order dated 29.10.2013 had been passed in the presence of the learned counsel for the parties and, therefore, could not be regarded as a case of non-appearance by one of the parties. The learned Single Judge, further, observed that the suit was for specific performance and that the plaintiff, not having led any evidence, the essential ingredients of the suit could not be proved by the appellant / plaintiff only on the basis of documents on record. It was further observed in the impugned order that the documents which had been exhibited had to be proved by leading evidence and as there was no evidence in support of the case of the appellant / plaintiff, the averments in the plaint could not be regarded as having been proved. Consequently, the learned Single Judge came to the conclusion that the order dated 29.10.2013 was not an order on dismissal of a suit for non-prosecution but was clearly an order on the merits of the case in terms of Order XVII Rule 3 CPC. Consequently, the learned Single Judge held that the application under Order IX Rule 9 CPC was misconceived and the same was dismissed as such.