MARUTI Vs. GANGADHAR RAO

JUDGEMENT

(1.) THE facts and circumstances leading to this revision petition are that a suit filed by the opponent in the Court of the Civil Judge, Class II, Jabalpur, claiming a decree for specific performance of a contract for re -conveyance of a house situated in Marhatal, Jabalpur, was dismissed by the trial Court on 6th December 1962 by making an order purporting 10 be under Order 17, rule 3 of the Code of Civil Procedure. On this date the evidence of the plaintiff's witnesses was to have been recorded. But when the case was taken up for hearing, the plaintiff and his counsel both were absent. The learned Civil Judge, therefore, dismissed the suit by recording the following order:

(2.) THE plaintiff then preferred an appeal from the order of the trial judge dismissing his suit. The learned Additional District Judge, Jabalpur, who heard the appeal, allowed it and setting aside the order of dismissal passed by the original Court remanded the matter to that Court for disposal according to law. The learned Additional District Judge took the view that the order passed by the trial Court under Order 17, Rule 3 dismissing the plaintiff's suit was not any decision or the suit on merits; and that in fact there was no material on record to enable the Court to decide the case on merit. He also observed that the trial Judge did not consider the fact that the burden of proving the three issues framed in the suit was on the defendant -petitioner; and if the plaintiff was absent, he should have recorded the evidence of the defendant and then disposed of the suit on merits. It is against this decision of the Additional District Judge, Jabalpur, remanding the case that the present revision petition has been filed.

(3.) IN the present case, it is obvious from the order recorded on 29th November 1962 that on that date the hearing of the suit was adjourned under Order 17, rule 1 on the request of the plaintiff that as his counsel was ill and unable to appear in the Court the case should be adjourned. The request was granted but the adjournment was not granted for enabling the plaintiff to perform any of the acts spoken of in rule 3. When, therefore, the plaintiff and his counsel both failed to appear on the adjourned bearing, that is, on 6th December 1962, the Court could not make any order under rule 3 as that rule had no applicability in the circumstances and for the purpose for which the adjournment was granted on the previous date of hearing. The rule was inapplicable also for the reason that on 6th December 1962 there was no appearance at all on behalf of the plaintiff. When the plaintiff was absent on 6th December 1962 and the adjournment had not been granted to him of the earlier date for performing any of the specific act or acts mentioned in rule 3, the trial Court should have dismissed the suit under Order 17, rule 2. But it did not do so, and instead passed an order under rule 3 dismissing the suit.