SHANTABAI Vs. CHOKHELAL

JUDGEMENT

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

(2.) This reference has been made apparently because of some conflict of authorities. In Madanlal v. Narayan, AIR 1972 Madh Pra 8, it was held by a Division Bench of this Court that if: is not open to the Court to proceed under Order 17 Rule 3 of the Code of Civil Procedure in the absence of a party. In Sita Bai v. Vidyawati, AIR 1972 Madh. Pra. 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, AIR 1973 MP 179, the view expressed in Sita Bai 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.) The answers to the questions before us depend upon the construction of Rules 2 and 3 of Order 17 of the Code ot Civil Procedure which has been the subject of conflicting decisions not only in this High Court but in other High Courts as well. In Pichamma v. Sreeramulu, ILR (1918) 41 Mad 286 = (AIR 1918 Mad 143 (2)) (FB), it was held by a majority that Rule 2 applies to all cases of absence of parties whether time was granted or not to do any of the acts mentioned in Rule 3 while Rule 3 applies only to cases where parries are present and commit default of the kind mentioned in the Rule, Wallis, C. J., however, differing from the majority view expressed the opinion that Rules 2 and 3 are not mutually exclusive and Rule 3 may be applied even in the absence of the defendant. The aforessid decision was relied upon by the Judicial Commissioner's Court at Nagpur in Bhivraj v. Janardhan, (1934) 30 Nag LR 94 = (AIR 1933 Nag 370). It was held therein that the proper way of interpreting Rules 2 and 3 of Order 17 is to treat the disposal of the suit as having been made in accordance with Rule 2 in cases when, on account of the nonappearance of the party, the explanation of his failure to perform the acts referred to in Rule 3 was due but was not given on account of his absence. It was further observed that Rule 8 oi Order 12 presupposes the appearance of the party at whose instance the case was adjourned. In Dayalji v. Kedarnath, AIR 1953 Nag 222. Mudholkar, J. held that where it is not clear whether a particular case is under Rule 2 or Rule 3 of Order 17, the Court must lean in favour of holding that the case falls under Rule 2.