ISMAIL SULEMAN BHAYAT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The plaintiff's main contention, apart from other irrelevant contention with which we are not concerned, was that he could not remain present on account of his illness on the date fixed for hearing of the suit on 12-7-67 and that a dismissal of the suit on account of his default in appearance was neither legal nor proper. According to him, such an order particularly when most of the evidence was over in the case would cause considerable hardship and grave injustice and that he should be given an opportunity to cross-examine the three witnesses examined on behalf of the defendants in the case. The arguments can then be heard and a decision on merits may well be given by the Court.

(2.) (10th March, 1969). Now it would appear from the facts set out hereinabove that the plaintiff-appellant was given the greatest latitude possible in giving him accommodation, much though it was not expected of the Court to take any notice of any letters or telegrams sent by him, or to inform him of the next date in the matter. The Court was justified in rejecting his prayer for adjournment on the date of hearing any further and it would not be possible to characterize that part of the order as in any way so improper in the circumstances of the case.

(3.) But the question is whether the Court acting under Order 17, Rule 2 of the Civil Procedure Code in dismissing the suit on account of the default of appearance of the plaintiff on that day was legal and proper, or that it should have exercised its powers under Order 17, Rule 3 of the Civil Procedure Code.