Subh Machinery Corporation … vs Pesticides India on 24 January, 1986

JUDGMENT

Kishore Singh Lodha, J.

1. This is a defendant’s revision against the order of the learned Additional District Judge, Udaipur dated 6-11-1984 by which he restored the suit of the plaintiff-non-petitioner which was earlier dismissed on 1-8-1981 holding that although the order dated 1-8-1981 purported to be passed under Order 17, Rule 3 Civil PC it must be deemed to have been passed under Order 17, Rule 2 CPC.

2. I have heard the learned counsel for the parties and have gone through the record.

3. The only question agitated before me by the learned counsel for the petitioner is that the order dated 1-8-1981 dismissing the suit was really under Order 17, Rule 3 CPC as it purported to be and could not have been deemed to have been passed under Order 17, Rule 2, CPC and, therefore, the learned Addl. District Judge was wrong in restoring the suit.

4. For the appreciation of this contention, a few facts leading to the dismissal of the suit may be mentioned. The plaintiff Pesticides India had filed a suit for recovery of Rs. 1,15,600/- against M/s Subh Machinery Corporation Pvt. Ltd. and the same was pending before the learned Addl. District Judge. On 1-8-1981, the suit was fixed for the plaintiff’s evidence. Earlier on 2-5-1981, the plaintiff had sought an adjournment for producing his witnesses and it was on that request that the case was adjourned and fixed for the plaintiff’s evidence on 1-8-1981. On 1-8-1981, the plaintiff’s counsel pleaded no instructions from the plaintiff and had then with drawn from the proceedings of the suit. The learned Addl. District Judge observed that the issues had been framed in the suit on 19-1-1978 and since then it was pending for the plaintiff’s evidence. One witness Prashant Verma was examined in part and his cross examination was reserved but the plaintiff did not produce the evidence and the evidence of Prashat Verma in these circumstances could not be read against the defendant. He, therefore, directed that as no witness was produced on that day, fixed for the plaintiff’s evidence. The plaintiff’s suit was dismissed under Order 17, Rule 3 CPC.

5. On 28-8-1981, an application was filed on behalf of the plaintiff supported by an affidavit of Shri Mohan Lal, the power of attorney holder of the plaintiff for the restoration of the suit. It was alleged that on 1-8-1981, Shri Mohan Lal who was looking after the conduct of the suit, was suffering from dysentery and was unable to move and, therefore, could not come to the Court and in his absence, the learned counsel for the plaintiff had pleaded no instructions from the plaintiff and then informed the Company about this, whereupon a man was sent to the house of Shri Mohan Lal and the fact of his illness came to the notice of the Company and in these circumstances, there was sufficient cause for the non-appearance of the plaintiff on 1-8-1981. It was, therefore, prayed that the matter may be restored. The defendant contested this application. The fact of the illness of Shri Mohanlal though denied in the reply was not supported by the affidavit which was filed by Shri Rasik Lal the representative of the defendant. The main ground taken up in the reply was that the learned counsel for the plaintiff purposely wanted the suit to be dismissed in default in absence of the evidence and, therefore, he pleaded no instructions. It was, however, further urged that the Court did not dismiss the suit in default but dismissed it under Order 17 Rule 3 CPC and, therefore, the application for restoration was not maintainable. The plaintiff’s only remedy was by way of an appeal against the order dismissing the suit. After hearing the parties, the learned Addl. District Judge found that the suit must be deemed to have been dismissed under Order 17, Rule 2 CPC and as according to him, there was sufficient cause for the absence of the plaintiff, restored the same. It is against this order that the present revision has been filed.

6. Now before coming to the contention raised before us, it will be proper to look at the provisions of Order 17, Rule 2 and Order 17. Rule 3, which reads as under:

2. Procedure if parties fail to appear on day fixed–Where, on

any day to which the bearing 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 17 or make such order as it thinks fit.

Explanation–Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.”

“3. Court may proceed not with standing either party fails to produce evidence, etc.–Where any party to a suit to whom time has been

granted fails to produce his evidence, or to cause the 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 may, not withstanding such default:

(a) if the parties are present, proceed to decide the suit forth with; or

(b) if the parties are, or any of them, is, absent proceed under Rule 2.

7. It is pertinent to note that Order 17, Rule 2 specifically deals with the absence of the parties and provides that if the party fails to appear on an adjourned hearing, the court may proceed to dispose of the suit in one of the modes provided under Order IX or make such other order as it thinks fit. The explanation to Rule 2 further provides that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any date to which the hearing of the suit is adjourned, the court may in its discretion proceed with the case as if such party were present. On the other hand, Order 17, Rule 3 does not specifically deal with the absence of the party but deals with the situation where a party to the suit to whom time has been granted, fails to do the act for which time was granted and in that situation, the court may not with standing such default proceed to decide the suit forthwith if the parties are present but if the parties are or any of them is absent, the court has to proceed under Rule 2. This is the position after the amendment of the Civil Procedure Code by Act No. 104 of 1976. The explanation to Order 17, Rule 2 referred to had been added by the said amendment and the later part of Rule 3 was also amended by the said Amendment Act and the words ‘”the court may not with standing such default proceed to decide the suit forthwith”. The following had been substituted:

the court may not with standing such default

(a) if the parties are present proceed to decide the suit forthwith; or

(b) if the parties are or any of them is absent, proceed under Rule 2.

8. It would be thus, clear that before the amendment, the absence of the party, to whom time had been granted for doing something on the adjourned date, on such adjourned date it was not material under Order 17, Rule 3 Civil PC and the court could proceed not with standing the default to decide the suit forthwith but now after the amendment, a change has been brought about and the court has been given the power to proceed with the case forthwith only if the parties are present on such adjourned hearing but if the parties are or any one of them is not present on such adjourned hearing, the court cannot proceed with the suit but has to proceed under Rule 2. Under Rule 2, the court will have to proceed in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit unless the condition referred to in the explanation is applicable. That condition is that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on the adjourned hearing, the court may in its discretion proceed with the case as if such party were present.

9. Under Order 9, rule 8 the suit has to be dismissed where the defendant appears and the plaintiff does not appear when the suit is called on any hearing unless the defendant admits the claim or part thereof in which case the court shall pass a decree against defendant upon such admissions and where part only of the claim has been admitted, the suit shall be dismissed so far as it relates to the remainder.

10. Now after the analysis of the provisions of Order 17, Rule 2, Order 17, Rule 3, the facts of the present case may be examined. The case was adjourned on 2-5-1981 on the request of the plaintiff for the plaintiff’s evidence and on 1-8-1981, the plaintiff could not produce evidence. Therefore, the first condition under Order 17, Rule 3 Civil PC is fulfilled; that the party to whom time was granted, failed to produce its evidence but on that day, the plaintiff was not present and his counsel had also pleaded no instructions and thereafter did not take any part in the proceedings and thus must be deemed to have been absent and, therefore, the case must fall under Clause (b) of the later part of Rule 3 of Order 17 which provides that the court may not with standing such default if the parties are or any of them is absent, proceed under Rule 2. Thus when the plaintiff was absent on 1-8-1981, the learned Addl. District Judge had no option but to proceed under Rule 2 of Order 17 and he could not have proceeded to decide the suit forthwith. He himself had observed that only one witness Prashant Verma had been examined in part and his cross-examination had not yet been completed and, therefore, that statement could not be read against the defendant. That being so, the case could not have fallen under the explanation to Order 17, Rule 2 Civil PC because it cannot be said that the evidence or a substantial portion of the evidence of the plaintiff had already been recorded. In these of circumstances the learned Judge while accepting the application for restoration was right in holding that the order dated 1-8-1981 must be deemed to have been passed under Order 17, Rule 2 Civil PC. Such a course to interpret the order as to whether it must be deemed to have been passed under Order 17, Rule 2 or not was open to him as has been held in Ganga Das v. Mst. Gopli .

11. The learned counsel for the petitioner, however, urged that the counsel for the plaintiff was present on the day suit was dismissed under Order 17, Rule 3 Civil PC. He had not with drawn his power of attorney as required by Order 3, Rule 4 and, therefore, the mere fact that he pleaded no instructions cannot make him absent from the court and in this connection, he placed reliance upon Jyoti Prasad v. Punjab National Bank . I am however, unable to agree with him. The authority relied upon by him, does not apply to the present case. There the matter related to the service of notice on defendant’s pleader after restoration of the suit under Order 9, Rule 9 and it was in that connection that it was held that his engagement cannot be deemed to have been terminated merely on account of the dismissal of the suit for default. On the other hand, our own court has taken the plea of no instructions on the part of the counsel to be his absence as has been held in Badri Prasad v. Jyanti Prasad ILR (1959) 9 Raj. 1142.

12. The learned counsel also relied on some other decisions in this respect but in view of the decision of our own Court, I need not refer to them.

13. The learned counsel for the petitioner also brought to my notice the decisions of this Court in Gopi v. Ramu A.I.R. 1964 Raj. 147 and Sheshmal v. Rawat Karansingh 1977 WLN (U.C.) 200 and urged that a plaintiff who had been granted time to produce evidence and fails to produce the same and further even fails to appear before the Court on the adjourned date is guilty of double default, and in such a case, the court is free to proceed under Order 17, Rule 3 C.P.C. No doubt this was the view of this Court, according to these decisions but these are decisions which arose out of the provisions of Order 17 Rule 3 before it was amended in 1976. I have already stated above, that before the amendment Order 17 Rule 3 did not make any distinction in the absence or presence of the party on the adjourned hearing and could proceed with the case forthwith if the party had defaulted in carrying out of the purpose for which the adjorunment had been granted to it but after the amendment, the position is quite different and the court can proceed under Order 17, Rule 3 CPC only if the parties are present but if the parties are or any one of them is absent, the court has no option but to act under Order 17, Rule 2 CPC. In the present case, as already stated above, the plaintiff was absent on 1-8-81 and, therefore, the court was left with no option put to proceed under Order 17, Rule 2 CPC and as no evidence of the plaintiff or substantial portion thereof had been recorded, the suit had no be dismissed in default. That being so, I do not see any reason to interfere with the order passed by the learned Addl. District Judge, Udaipur restoring the suit.

14. The result, therefore, is that this revision fails and is hereby dismissed. However, looking to the facts and circumstances of the case, I shall leave the parties to bear their own costs.