RATANBAI SHIVLAL LOHAR Vs. SHANKAR DEOCHAND LOHAR

JUDGEMENT

(1.) This suit was fixed for hearing for the 12 March 1920. Various adjournments were granted, the last of which was for the 24 July 1920. On that day when the case was called on the plaintiff was absent and the suit was dismissed. The same day the pleader appeared and presented an application for the restoration of the suit to the file. On the 23 August, this application was dismissed. The learned Judge said: The applicant's pleader urges that the dismissal of the suit should be held to be under Order XVII, Rule 2 and Order IX, Rule 8, Civil Procedure Code, but it is clear that the Court has not dismissed the suit under the above provisions. The suit has been decided under Order XVII, Rule 3, because the plaintiff to whom time was given failed to produce the evidence, and the provisions of Order IX do not therefore apply. The plaintiff's only remedy is to appeal against the decree.

(2.) The plaintiff has obtained a rule from this Court on the 25 November 1921 calling on the defendant to show cause why the decision of the lower Court should not be reversed and a re-trial of the suit directed. The decision of the learned Judge, if it were allowed to stand, would apply to every case in which there has been an adjournment before the trial of the case has actually commenced, to enable a party to produce his evidence, and the party does not appear on the adjourned date We are constantly having cases in which the failure to distinguish between the provisions of Rule 2 and Rule 3 of Order XVII has caused injustice That Order deals generally with "adjournments." Rule 1 gives the Court power to grant adjournments from time to time, provided that, when the hearing of evidence has once begun, the hearing of the suit should continue from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing beyond the following day to be necessary for reasons to be recorded.

(3.) Under Rule 2, where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.