SITALPRASAD KALKA PRASAD Vs. SUKYA

JUDGEMENT

(1.) CIVIL Suit No. H-A of 1944 was fixed on 11-10-1945 for recording evidence of parties. On that date the plaintiff who had to lead evidence was not present and his pleader applied for an adjournment on the ground that the plaintiff was ill since last three days and that his witnesses were also ill and were consequently absent. The defendants opposed the adjournment and the lower Court refused to adjourn the case.

(2.) THEREUPON the plaintiff's counsel Mr. C.D. Gautam said that as the plaintiff could not appear and instruct him for that date he was unable to proceed with the case for want of instructions, and that the plaintiff may be treated as absent. Thereafter the Court recorded the evidence of defendant 1 as a witness and closed the case at 12.35 P. M. The learned Judge then immediately proceeded to write a judgment which was delivered the same day, and the decree in accordance with that judgment was actually signed on 12-10-1945.

(3.) THERE is much substance in the contention of the non-applicant. In a case where the plain, tiff at whose instance a suit is adjourned to enable him to perform some act necessary for the further progress of the suit remains absent on the adjourned date of hearing and also fails to perform the act for which the adjournment was granted to him, the Court should dispose of the case under Order 17, Rule 2, Civil P.C. and not under Order 17, Rule 3: vide cases collected by Sir D.F. Mulla in his Civil Procedure Code at p. 708.