BHOORILAL Vs. KANHAIYALAL

JUDGEMENT

(1.) THE applicants brought a suit in the Small Cause Court and obtained a decree for Rs. 177-7-0. The non-applicants (defendants) had made a counterclaim, which was dismissed. The-defendants on that made an application, to this Court, and Jackson, A. J. C., remanded the case for a fresh decision with regard to this counterclaim, holding that the finding with regard to the sum of Rs. 490 must stand, and that a fresh decision must be arrived at with regard to the counterclaim of Rs. 300. After the remand further statements were recorded, and the points for determination were stated on 19th September 1930. An adjournment was given on account of want of time, first on 24th October 1930 and then again on 26th November 1930, on which date all the witnesses for the plaintiff were examined and the case was closed. The defendants raised a legal plea and again an adjournment was given for 3rd December 1930, the plaintiffs closing their case. On 3rd December one witness for the defendants was partly examined, and the case was adjourned to 10th December for further examination, the other witnesses being dieted to appear on that date. On 10th December parties were absent and the suit was dismissed for default. The plaintiffs now apply for revision of that order on the ground that it was incorrect and that either a decision on merits should have been given or a further adjournment should have been given, but that under Order 17, Rule 2, Civil P. C., the suit should not have been dismissed.

(2.) I am not, however, pressed by the argument of the learned Counsel for the applicants. Although they had closed their case, it was no doubt their duty to appear at the adjourned hearing, and under Order 17, Rule 2, the Court could proceed under Order 9, Rule 3, or might pass such other order as it thought fit. There is some conflict of authority in the matter, but in any case it is clear that if there was any dispute as to the amount in suit, no decree could be passed in favour of the plaintiffs in the absence of the parties. In the present case the defendants had not admitted the plaintiff's claim. They did no doubt admit certain items, but they had made a counterclaim, alleging that nothing was due, but on the contrary there was a balance in their favour. The lower Court might, it is true, perhaps have granted an adjournment, but it should not have done so without good cause, such as the probability of the parties appearing at the adjourned hearing and good cause shown for the non-appearance. In the present case there is no such sufficient cause.

(3.) THE learned Counsel for the applicants cited Enatulla Basunia v. Jiban Mohan Roy AIR 1914 Cal 380, Jyodhyaprasad v. Secy. of State, A. I. R. 1924 Nag. 298, Sanahi Ram Kandhaya Lal v. Gulab Chand Kalu Ram, A.I.R. 1925 Pat. 712 and Chamak Lal Mandal v. Mauji Mandal, A. I. R. 1929 Pat. 248, in support of his contention. I do not, however, think that any of those cases will support the applicants. Enatulla Basunia v. Jiban Mohan Roy AIR 1914 Cal 380, has made a distinction between Order 17, Rule 2, and Order 17, Rule 3. In the present case Order 17, Rule 3, cannot apply because the adjournment was not at the instance of a party, but under the ordinary procedure of the Court, as the witnesses present could not be examined on the date fixed for hearing. Further, there are not, as I have held above,' materials on record for the Court to proceed to decide the suit. The Court, then, could not decide the suit forthwith under the provisions of Order 17, Rule 3. I would add that the balance of authority is in favour of the view that, even where an adjournment has been granted at the instance of one party, who fails to appear at the adjourned hearing, an order should be passed under Order 17, Rule 2, and not under Order 17, Rule 3. I would refer to Chandramathi Ammal v. Narayanasami Aiyar (1910) 33 Mad 241, Pichamma v. Sreeramulu AIR 1918 Mad 143, Shrimant Sagajirao v. S. Smith (1896) 20 Bom 736, Ganeshi Lal Har Narain v. Debi Das and Ram Adhin v. Ram Bharose .