STATE BANK OF INDIA Vs. SURABHI ASSOCIATES

JUDGEMENT

(1.) This miscellaneous appeal is filed by the plaintiff under Order 41 Rule 1(c) of CPC being aggrieved of order dtd. 29/10/2018 passed by learned 19th Additional District Judge, Bhopal in MJC No.481/2018 refusing to entertain an application under Order 9 Rule 9 of CPC on the ground that suit was dismissed in view of lack of evidence vide order dtd. 11/07/2013 and said being passed under Order 17 Rule 3 of CPC will be covered by the decision of Calcutta High Court in the case of Lalit Chandra Das and others Vs. Sushil Chandra Guha and another, AIR 1980 Calcutta 148 , therefore, appeal will be maintainable against the said order and not an application under Order 9 Rule 9, CPC.

(2.) This Court requested Shri Ravish Chandra Agrawal, learned senior Advocate to guide this Court as to the correct legal position in this behalf. Shri Ravish Chandra Agrawal, learned senior Advocate, graciously accepted and informed that in terms of the law laid down by Hon'ble Supreme Court in Mohandas and others Vs. Ghisia Bai and others, AIR 2002 SC 2436 in which it is held that if suit is fixed for leading evidence by plaintiff, instead of leading evidence, neither plaintiff nor his witnesses were present, then suit has to be dismissed under Order 17 Rule 2 of CPC and not under order 17 Rule 3 of CPC. It is held that Order 17 Rule 2, CPC provides for procedure if parties fail to appear on day fixed. It provides that there, on any day to which hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by order IX or make such orders as it thinks fit.

(3.) Order 17 Rule 3 of CPC provides that where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witness, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, if the parties are present proceed to decide the suit forthwith or if the parties are, or any of them is, absent, proceed under Rule 2 of CPC. Shri Ravish Chandra Agrawal, learned senior Advocate, submits that the provisions of Order 18 Rule 4 of CPC was substituted by Act 22 of 2002 in regard to recording of evidence, Legislature probably did not take into consideration provisions contained in Order 17 Rule2 and 3 of CPC inasmuch as filing of affidavit under Order 18 Rule 4 of CPC will mean that evidence has been produced, therefore, there were only two courses open namely to proceed to decide the suit forthwith or proceed under Rule 2 of CPC.