GOPI KISAN Vs. RAMU

JUDGEMENT

(1.) THIS is a reference by a learned single Judge of this Court to resolve a conflict relating to the interpretation and consequent applicability of Rules 2 and 3 of order XVII of the Code of Civil Procedure which arises for certain decisions of this court.

(2.) BEFORE we formulate the question for answer it would be convenient to briefly notice the facts of the case before us. A suit for recovery of money was instituted before the Munsiff, Bikaner by a plaint dated 23rd May, 1955, on the basis of a deed of agreement concerning the sale and delivery of a lorry. The defendants filed a written statement dated 22nd February, 1956, denying the execution of the deed and the liability arising therefrom. The Munsiff Bikaner on 9th August, 1957. framed issues relating to (a) the execution of the deed and want of consideration; (b) the fac-tum of delivery of lorry; (c) the penal character of the rate of interest claimed and (d) the relief. The suit stood fixed for the plaintiff's evidence on 19th september, 1957, on which date the plaintiff obtained an adjournment on payment of costs and the case was fixed for 19th October, 1957, on which date of hearing the counsel for the parties were present but the plaintiff and his witnesses were absent. The plaintiff's pleader reported no instructions. Cost was not paid. Plaintiff's evidence was closed. Defendants led no evidence and the arguments of their counsel were heard and the suit was dismissed.

(3.) THE learned single Judge in his order of reference has made pointed reference to two decisions of this Court for consideration. The first is Ram Karan v. Radha mohan, ILR (1953) 3 Raj 798 and another is Shantilal v. State, ILR (1957) 7 Raj 760 : (AIR 1958 Raj 7 ). In Ram Karan's case ILR (1953) 3 Raj 798 the suit was fixed for the plaintiff's evidence and was adjourned at his request. On the adjourned date the plaintiff and his witnesses were absent and the suit was dismissed under Order XVII Rule 3 Civil Procedure Code. Bapna and Sharma, JJ. , held that as there was no material on the record, no decision on merits as envisaged by Order, XX Rule 4 of the Code of Civil Procedure was possible and, therefore, the order of dismissal should be deemed to have been passed under order XVII Rule 2 Civil Procedure Code. In Shantilal's case, ILR (1957) 7 Raj 760 : (AIR 1958 Raj 7) after framing of the issues the suit stood fixed for the plaintiff's evidence. At the plaintiff's request it was adjourned three times. The plaintiff's statement was recorded and at his request again the suit was adjourned on payment of costs. On the adjourned date the plaintiff did not appear. The District Judge, before whom the suit was pending, proceeded under Order XVII Rule 3 Civil Procedure Code and dismissed the suit. It was urged in appeal before this Court that the District Judge had no jurisdiction to proceed under Order XVII Rule 3 Civil Procedure Code. Wanchoo, C. J. , as he then was, and one of us who decided the case, held that the District Judge was right in proceeding under Order XVII Rule 3 Civil Procedure Code. Jt was also observed that,