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Smt. Afroz Banu vs Nandaram (Dead) By L.Rs on 14 January, 2004

Karnataka High Court
Smt. Afroz Banu vs Nandaram (Dead) By L.Rs on 14 January, 2004
Equivalent citations: ILR 2004 KAR 1295, 2004 (2) KarLJ 388
Author: K S Rao
Bench: K S Rao


ORDER 17 RULES 2 AND 3 – Power of Court to dismiss suit when parties fail to appear – When to be exercised – Suit posted for evidence – Plaintiff’s power of attorney sought for time submitting that he has no statement to make – Court dismissed the suit for non – prosecution – First appellate Court upheld such dismissal – Second appeal to High Court – Dismissal of suit under Order 17 Rule 3 to be understood as dismissal for want of evidence – Court has a duty to inform and direct party to adduce evidence -Order of Trial Court does not indicate such course of action – Dismissal of suit held improper – Conduct of plaintiff in taking repeated adjournments deprecated.

Held:

Under Clause (a) order of 17 Rule 3 “if parties are present proceed to decide the suit forthwith” to be understood meaningfully to mean the dismissal of the suit for want of evidence on the part of any plaintiff. But unfortunately, the impugned order does not disclose that the plaintiff was directed to lead evidence and he refused to lead evidence. The impugned order extracted above disclose that the Court enquired whether the plaintiff has any statement to make and in reply the plaintiff said that he has nothing to say. The said observation does not indicate that the Court directed the plaintiff to proceed with the case for adducing evidence forthwith and there was refusal on the part of the plaintiff to lead evidence. In the absence of such material, it is improper for the Court to have dismissed the suit for default and such an exercise of power cannot be construed as one under Order 17 Rule 3(a).

Appeal allowed.

JUDGMENT

K. Sreedhar Rao, J.

1. These appeals are filed against the judgment and decree passed in R.A. Nos. 10 and 11 of 2000 on the file of the Civil Judge (Senior Division), Hassan arising out of the judgment and decree passed in O.S. Nos. 18 of 1993 and 232 of 1992 on the file of the Civil Judge (Junior Division), Sakaleshpur. Both the suits have been clubbed together. A common order has been passed. The appellant is the plaintiff in both the suits filed for declaration that the eviction order obtained in O.S. No. 18 of 1993 is null and void and not binding and further seek consequential relief of injunction not to execute the decree of eviction. Perhaps the relief in O.S. No. 18 of 1993 is the duplicated version of the relief in O.S. No. 232 of 1992. It appears from the records that the plaintiff was taking adjournments time and again to adduce evidence and 18 adjournments were taken to adduce evidence. Both the suits were clubbed together at the request of the plaintiff and finally posted for evidence on 3-3-2000. On the said day by the impugned order, the suits have been dismissed for default. Compensatory costs of Rs. 3,000/- is levied on the plaintiff in each suit and further directed payment of Rs. 2,000/- as costs towards dismissal of I.A. Nos. 2, 3 and 11. On the said date, the power of attorney holder of the plaintiff was present. The Counsel was not present. The suits came to be dismissed by a detailed order narrating the defaults committed by the plaintiff on the previous occasions in adducing evidence. The Appellate Court dismissed the appeals of the plaintiff confirming the impugned judgment of the Trial Court holding that the order of dismissal of suits passed is one under Order 17, Rules 2 and 3 and Order 9, Rule 3 of the CPC. But, however, modified the order regarding costs. Hence, these second appeals.

2. The case is at the stage of admission. The Counsel assisted the Court with necessary records and pleadings and argued on merits for final disposal. The following substantial question of law is framed for consideration:

Whether the First Appellate Court was legally justified in holding that the order of dismissal has to be construed as one under Order 17, Rules 2 and 3 read with Order 9, Rule 3 of the CPC and the application of the said provisions to the facts is perversely contrary to law?

3. The provisions of Order 17, Rule 2 of the CPC enables the Court to dismiss the suit when the parties or any of them fail to appear before the Court. The course open to the Court is to dispose of the suit under Order 9 or make such other order as it deems fit. Under Order 9, Rule 3 when neither party appears, the Court is empowered to dismiss the suit. The explanation to Order 17, Rule 2 declares that if evidence or substantial portion of evidence is already recorded, the Court in its discretion proceed with the case as if the party is present and render the verdict on merits. Under Rule 3 when the party to whom time is granted to produce evidence, fails to produce evidence or cause attendance of his witnesses or to perform any other act necessary to the further progress of the suit for which time has been allowed, the Court can forthwith decide the case under Rule 2.

4. In the instant case, the plaintiff was present. The relevant portions of the impugned order are extracted hereunder:

“At 3.05 Nazeer Ahmed GPA of plaintiff, husband of plaintiff is present. On questioning the GPA of plaintiff, he submits that he has no statement to be made and prays for time.

These cases are two of the oldest cases and there is a direction from Hon’ble High Court to dispose of the oldest cases at the earliest”.

The order further narrates the conduct of the party in taking repeated adjournments and finally dismissed the suits for default. Without least doubt it can be said that the plaintiff has not been sincere and diligent in prosecuting the case and in adducing the evidence. Almost 18 adjournments were taken and finally the case was posted for plaintiffs evidence on 3-3-2000. The power of the Court to dismiss the suit on the failure of the party to adduce evidence or to produce any witnesses or to carry out any other directions issued by the Court, could be traced in Order 17, Rule 3 of the CPC. Under Clause (a) “if parties are present, proceed to decide the suit forthwith” to be understood meaningfully to mean the dismissal of the suit for want of evidence on the part of any plaintiff. But, unfortunately, the impugned order does not disclose that the plaintiff was directed to lead evidence and he refused to lead evidence. The impugned order extracted above disclose that the Court enquired whether the plaintiff has any statement to make and in reply the plaintiff said that he has nothing to say. The said observation does not indicate that the Court directed the plaintiff to proceed with the case for adducing evidence forthwith and there was refusal on the part of the plaintiff to lead evidence. In the absence of such material, it is improper for the Court to have dismissed the suit for default and such an exercise of power cannot be construed as one under Order 17, Rule 3(a). The conduct of the plaintiff in taking adjournments may be evident from the record. After all the plaintiff is a layman not conversant with the procedures of law. The conduct of the plaintiff in taking adjournments may have to be deprecated and warrants a stringent view but nevertheless when an adverse order of the nature has to be passed; there is a duty of the Court to properly inform and direct the party to adduce evidence but the noting in the order sheet does not indicate such a course of action on the part of the Court. In that view of the matter, I find the dismissal made is without proper opportunity and without making the plaintiff aware of his obligations in law. The question of law is answered in the affirmative. However, I find the conduct of the plaintiff in not adducing evidence has resulted in undue delay and caused hardship to the defendants. Therefore, to compensate the hardship, I direct that the appellant shall pay the cost of Rs. 2,000/- to the defendants and shall proceed with the case by adducing evidence without seeking further time and on day-to-day basis. The appeal is allowed in part. The order of the Appellate Court is set aside. The case is remanded. The appellant-plaintiff and the respondents herein are directed to appear before the Trial Court on 16-2-2004 and the Trial Court shall dispose of the case by the end of March 2004.

Registry to transit the copy of this order forthwith to the Trial Court.

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