1. Suit for declaration and permanent injunction dismissed for non-appearance; dispute over applicable dismissal provision. (Para 1 )
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2001 Supreme(SC) 290
SUPREME COURT OF INDIA
Doraiswamy Raju : V.N.Khare
Mohandas
Versus
Ghisia Bai
Case No. : 5652 of 1997
Date of Decision : 2/15/01
Under Order XVII Rule 3 of the Code of Civil Procedure, if a party fails to produce evidence for which time was granted and is absent, the court must proceed under Order XVII Rule 2 rather than deciding the suit under Rule 3.
Headnote:(A) Code of Civil Procedure, 1908 - Order XVII Rule 2 and Order XVII Rule 3 - Failure to produce evidence and absence of parties - Where a party to whom time has been granted fails to produce evidence or cause the attendance of witnesses and is absent, the court must proceed under Rule 2 as mandated by Rule 3(b) - Dismissal of a suit under Order XVII Rule 3 when the parties are absent is erroneous. (Paras 2, 3)
Facts of the case:
A suit for declaration and permanent injunction was filed. On the date fixed for evidence, the plaintiffs filed applications for better particulars and deletion of paragraphs in the written statement, both of which were rejected. On the subsequent date, the plaintiffs and their witnesses remained absent. Applications for adjournment on grounds of filing a revision and illness of the plaintiff were dismissed, and the trial court dismissed the suit under Order XVII Rule 3 of the Code of Civil Procedure. This decision was upheld by the first appellate court and the High Court.
Findings of Court:
It was found that neither the plaintiff nor the witnesses were present on the date the suit was dismissed. Since Order XVII Rule 3(b) explicitly provides that the court shall proceed under Rule 2 if the parties are absent, the lower courts were erroneous in dismissing the suit under Rule 3.
Issues: Whether the suit should have been dismissed under Order XVII Rule 2 or Order XVII Rule 3 given the absence of the plaintiff and witnesses on the trial date.
Ratio Decidendi: Under the Code of Civil Procedure, if a party fails to perform an act necessary for the progress of the suit for which time was allowed and is absent, the court must proceed under Order XVII Rule 2, as specified in Order XVII Rule 3(b).
Result: The appeal is allowed.
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Table of Contents
2. Appellant argued dismissal was under Order XVII Rule 2, not Rule 3, due to party absence. (Para 2 )
3. Neither party nor witnesses were present; under Rule 3, if absent, court must proceed under Rule 2. (Para 2 , 3 )
4. If parties are absent on adjourned date, dismissal must be under Order XVII Rule 2, not Rule 3. (Para 2 , 3 )
5. Appeal allowed; judgment set aside; case remanded to trial court for fresh decision. (Para 3 , 4 )
6. What is the effect of party absence on a hearing date under Order XVII CPC?
If parties fail to appear on an adjourned date, the court may proceed under Order IX or Order XVII Rule 2. (Para 2 )
7. What does Order XVII Rule 3 require when a party is absent?
If a party is absent after being granted time, the court must proceed under Order XVII Rule 2, not decide under Rule 3. (Para 2 , 3 )
(1) THE plaintiff-appellants herein filed a suit for declaration and for permanent injunction in the Court of Civil Judge, Class II, Harsud, District Khandwa, M.P. The said suit was filed on 26th October, 1984, 3rd May, 1994 was the date fixed for adducing evidence by the plaintiff- appellants. Instead of leading evidence, the plaintiff-appellants filed an application for seeking better particulars of the written statement. The said application was rejected. Immediately thereafter an application was moved under Order VI Rule 16 for deletion of certain paragraphs of the written statement. The said application was also rejected. On 7th May, 1994 the plaintiff-appellants remained absent. The Counsel for the plaintiff-appellants on the said date moved an application for a short adjournment for filing revision against the order passed on 3rd May, 1994 rejecting the application of plaintiff-appellants. The said application for adjournment was dismissed. Thereafter the Counsel for the plaintiff- appellants moved an application under Order VII Rule 1 on the ground that the plaintiff is seriously ill and, therefore, the case may be adjourned. The said application was also rejected. Thereafter the trial court dismissed the suit under-Order XVII Rule 3 of the Code of Civil Procedure. The plaintiff-appellants preferred a first appeal before the first Appellate Court, but the same was dismissed. The second appeal preferred by the plaintiff- appellants was also met with the same fate. The High Court was of the view that the suit was dismissed not under Order XVII Rule 2, but was dismissed under Order XVII Rule 3. The validity of the Judgment of the High Court is impugned in this appeal,
(2) LEARNED Counsel appearing for the appellants urged that the facts and circumstances of the case show that in fact the suit was dismissed under Order XVII Rule 2 and not under Order XVII Rule 3. Order XVII Rule 2 provides - 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 by Order IX or make such other order as it thinks fit. Order XVII Rule 3 provides -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, notwithstanding 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.
(3) IN the present case what we find is neither the plaintiff-appellant nor his witnesses were present on 7th May, 1994. Therefore, the case has to be dismissed under Order XVII Rule 2. Even Rule 3 itself provides that if the parties or any of them absent, the Court shall proceed to decide the suit under Order XVII Rule 2. In view of the said legal position, we are of the view that the view taken by the Court below was erroneous and deserves to be set aside. We, therefore, set aside the judgment under appeal and send the case back to the trial court to decide the matter in accordance with law.
(4) THE appeal is allowed.
