MADANLAL KANHAIYALAL Vs. JAI NARAYAN GENDALAL JATAV

JUDGEMENT

(1.) THE following questions have been referred by a learned single Judge for decision by a Division Bench:-" (1) Whether it is open to the Court to proceed under Order 17, Rule 3, c. P. C. , in the absence of a party? (2) Where the Court proceeds under Order 17, Rule 3 in the absence of a party and the conditions laid down in the said Rule are fulfilled, whether the order can still be construed as one under Order 17, Rule 2, merely on the ground that it was not expedient for the Court to do so?"

(2.) THE revision-petitioner filed in the Court of Small Causes a suit against the respondent for recovery of money. On October 7, 1967, which was the date for disposal of the suit, the defendant filed his written statement denying the claim. However, at the request of the plaintiff the hearing was adjourned to November 8, 1967, for evidence, subject to payment of Rs. 4/-as costs. On the last mentioned date, when the case was called on for hearing in the early hours, the plaintiff did not appear; and his counsel, though present, requested for time till 1 P. M. When equivalent Citation: the case was again taken up at about 1 P. M. , neither the plaintiff nor his counsel appeared. Thereupon the trial Court dismissed the suit saying that the plaintiff had not adduced any evidence in spite of an adjournment having been granted on the plaintiff's request for production of evidence. A decree was drawn up on the same date.

(3.) ON January 11, 1967, the plaintiff made an application under Order 9, Rule 9, c. P. C. , for restoration of the suit stating the circumstances in which he was prevented from appearing on November 8, 1967. The trial Court dismissed that application holding that it was not maintainable inasmuch as the suit had been dismissed under Order 17, Rule 3, and not under Order 17, Rule 2, C. P. C. Being aggrieved by that order, the plaintiff filed this revision.