MANAK CHAND Vs. MOOL CHAND

JUDGEMENT

(1.) THIS revision petition is directed against the judgment and decree dated 5.2.1994 passed by learned Munsif, Lalsoth under Order 17 Rule 3, CPC dismissing the suit of the plaintiff -petitioner.

(2.) THE plaintiff -petitioner filed a suit for possession under Section 6 of the Specified Relief Act, 1963 against the defendant/non -petitioners in the Court of learned District Judge. Dausa pleading therein inter alia that the defendants forcibly dispossessed him with the help of police from the Kham house marked ABCD in the enclosed site plan which was got constructed by him on agricultural land situated at village Mohammadpura, Tehsil Lalsoth bearing old Khasra No. 186 and new Khasra No. 63/2 through a registered sale deed dated 15.7.1970 from Thakur Gumani Ram Ji. The defendant -non -petitioners denied the allegations in their written statements and pleaded that the land in question was sold to them by one Raghunath Singh and though the land was entered in the name of plaintiff but it was in actual possession of Ramla, Srila etc. who are Bairwas by caste. It appears that the suit was transferred to the learned Court below on account of amendment in the pecuniary jurisdiction of the Civil Courts. The trial Court after framing the issues fixed the case on 19.3.1993 for plaintiffs evidence on 22.6.1993. It was directed that summons of the witnesses and the process fee be filed within three days. The plaintiff had infact already filed the summons and process fee on 1.3.1993 but due to lapse on the part of the concerned clerk the same were not issued. The suit was first dismissed in default on 30.4.1993 but was restored on 11.10.1993. On 6.12.1993 the learned Munsif directed that the learned District Judge be requested for transfer of the case. On subsequent 2 -3 dates the order from the learned District Judge was awaited and on 4.1.1994 the case was again fixed for 18.1.1994 for the evidence of the plaintiff. On that day, the case was adjourned for the evidence of the plaintiff to 5.2.1994 at the cost of Rs. 75/ -. On 5.2.1994 neither the plaintiff nor his learned Counsel was present in the Court so the evidence of the plaintiff was closed and the suit was decided on merits under Order 17 Rule 3, CPC relying upon the Full Bench Judgment of this Court in Gopi Kishan v. Ramu, reported in 1964 RLW 155. As there was no evidence on record, the suit was dismissed. Hence this revision petition stating that no appeal is provided against the judgment and decree passed under Section 6 of the Specific Relief Act, 1963.

(3.) I have heard learned Counsel for the petitioner -plaintiff. He has contended that the learned lower Court has committed grave illegality in passing the impugned order under Order 17 Rule 3, CPC in the absence of petitioner and without there being any evidence of the petitioner on record. According to him, the order which could have been passed in the facts and circumstances of the case was an order under Order 17 Rule 2, CPC and not under Order 17 Rule 3, CPC.