SHANTIBAI Vs. CHOKHELAL

JUDGEMENT

(1.) OPINION Raina, J. The following questions have been referred to this Bench for opinion by a Division Bench while dealing with this appeal :

(2.) 1972 JLJ 317=AIR 1972 MP 198, another Division Bench proceeded upon the view that it is open to the Court to proceed under Order 17, rule 3 of the Code even in the absence of a party. In Narbada Prasad v. Awadesh Narain 1973 JLJ 64l=AIR 1973 MP 179, the view expressed in Sitabai v. Vidyawati (supra) was ignored on the ground that the observations made therein were obiter dicta. It was to resolve this conflict that the Division Bench made this reference.

(3.) 1964 JLJ 559, Dixit, C.J., following the decision of the Nagpur Judicial Commissioner' Court in Bhivraj v. Janardhan (supra) held that rule 3 of Order 17 presupposes the appearance of the party at whose instance the case was adjourned but who is unable to give proper explanation for his omission to perform the specific act or acts for which the adjournment was granted at his instance. A similar view was expressed by Bhave, J. in Lakhanlal v. Dasroolal 1967 JLJ Short Note 95. It appears that this line of reasoning was adopted by the Division Bench consisting of Shivdayal and K. K. Dube, JJ. In Madanlal v. Jal Narayan (supra) holding that it is not open to the Court to proceed under rule 3 of Order 17 in the absence of a party. It is not clear from the judgment whether the contrary view expressed in some cases was taken into consideration or not.