POKKER HAJI Vs. MUHAMMAD BARAMI

JUDGEMENT

(1.) IN this appeal filed by the defendant against an order rejecting his application under O.9, R.13, CPC., two questions arise. (1) Whether the disposal of the suit is under O.17, R.2, or R.3, CPC., and (2) if the disposal of the suit was under O.17, R.2, CPC., there was sufficient cause for the non-appearance of the defendant on 6 6 1969 to which date the suit was taken up for disposal.

(2.) AFTER the marking of documents on 20 3 1969 the suit was posted for trial on 26 5 1969. On that date at the request of the defendant the trial was adjourned to 6 6 1969 to quote the words of the Subordinate Judge "peremptorily". On 6 6 1969 since defendant's counsel was laid up Sri. K. Ramankutty Nair moved for adjournment on the ground that defendant's counsel was laid up and the defendant who had been to Bangalore was laid up : in Bangalore on 5-6- 1969 and could not be present in Kozhikode on 6-6-1969. A telegram was sent by the defendant from Bangalore on the 5th to his counsel and the telegram has been produced along with the application filed under O.9, R.13, CPC. The learned Judge has also relied on the telegram though it has not been properly proved. O.17. R.3, C.P.C. reads: "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, tor which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith." . The above rule can apply only when a party has been granted time to produce evidence or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit. A general adjournment of the type granted on 26 5 1969 at the instance of the defendant is not sufficient to attract Order, 17, R.3, CPC. Secondly in order that the above rule can apply it is necessary to decide the suit forthwith on the merits. The suit was disposed of only on 9-6 1969.

(3.) THE learned Judge has not disbelieved the case of illness of the defendant's counsel. THE fact that on 5 6 1969 the defendant was in Bangalore is sufficiently proved by the telegram he filed. THE learned Judge said: