PRITHVI NATH JALALI Vs. ABDUL AHAD SODAGAR

JUDGEMENT

(1.) This revision is directed against an order of the Courts below dismissing the plaintiffs application under Order 9, Rule 13, C. P. C. In the trial Court, the issues were framed on 11/8/1977 in presence of the parties and their counsel and the plaintiff was asked to lead his evidence and produce the same on 15/9/1977. The plaintiff remained absent on, that date and did not also produce any evidence. The case was adjourned to 17/9/1977 for the appearance of the plaintiff and the production of the evidence by him. The plaintiff, however, again remained absent and failed to produce the evidence. The trial Court passed an order dismissing the suit as not proved. The plaintiff moved an application for restoration of the suit under Order 9, Rule 13. The trial Court dissmissed the application holding that the same was not maintainable as the order was one under Order 17, Rule 3. The plaintiff preferred an appeal which came to be heard by the Addl. Dist. Judge, Srinagar. He agreed with the view expressed by the trial Court and dismissed the appeal. Hence this revision.

(2.) Order 17, Rules 2 and 3 provided as under:-

(3.) Clearly Rule 2 applies where a party to a suit fails to appear on the date to which the hearing has been adjourned. In that event the Court has got the option either to proceed under Order 9 or make such order as it thinks fit. On the other hand, Rule 3 applies where a party obtains time to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit. But does not do so within the time allowed by the Court. In such a situation the Court is at liberty to proceed to decide the suit forthwith. Such a default can however be assumed by the Court only where the party is present and fails to give any reason to the satisfaction of the Court for not having done what it was directed to do. Accordingly where a default takes place within the meaning of both Rule 2 and Rule 3, the law contemplates that Rule 2 and not Rule 3 should be applied where it is coupled with the default of appearance of the concerned party and that, even where Rule 3 has been mentioned, the order should be construed as one passed under Rule 2. In this view I am fortified by the judgments of the Madhya Pradesh High Court reported in AIR 1972 Madh Pra 8 and AIR 1973 Madh Pra 179.