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(BEFORE RUMA PAL AND C.K. THAKKER, JJ.)
THAKUR JI RAM JANKI JI AND ANOTHER -Appellants;
Versus
SHANKAR DAYAL - Respondent.
Civil Appeal No. 3165 of 2005,
Decided on May 6, 2005
Civil Procedure Code, 1908, Order 17 Rules 2 and 3 -Dismissal of suit for non production of evidence- Suit decreed and upheld in first appeal-Second appeal allowed by the High Court on the ground that the provisions of Order 17 Rule 3 had not been complied with by the Trial Court- Order 17 Rule 3 enables the Court, when time has been granted to a party to produce evidence -But if he fails to do so or the case of either default on the part of the party with regard to the further progress in suit, to either (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 of Order- The High Court erred in holding that Clause(a) of Rule 3 Order 17 requires the Court to deliver judgment on the same day- There is no such mandate under the said provision[Paras 3 to 6]
ORDER
1. Leave granted.
2. The dispute in this appeal arises out of a suit filed by the appellant, who is the father, against his son, the respondent. The appellant had filed the suit for possession alleging that the respondent had forcibly occupied a portion of the appellant's property. The suit was decreed in favour of the appellant by the trial court. The first appeal which was preferred by the respondent was dismissed. The respondent filed a second appeal which was allowed by the High Court solely on the ground that the provisions of Order 17 Rule 3 of the Code of Civil Procedure, 1908 had not been complied with by the trial court.
3. Order 17 Rule 3 of the Code of Civil Procedure, 1908 enables the court, when time has been granted to a party to produce evidence and he fails to do so or the case of either default on the part of the party with regard to the further progress in the suit, to either (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 Order 17.
4. The High Court was of the view that clause (a) of Rule 3 Order 17 requires the court to deliver judgment on the same day. Since the judgment was not delivered on the same day, but on another day it was held that the provisions of Order 17 had been violated.
5. The reasoning of the High Court is entirely erroneous; Order 17 Rule 3 does not cast a mandate on the trial court but merely empowers the trial court to exercise its discretion in the manner provided. It does not by any stretch of c imagination require that in the case of default of the party, the trial court must proceed to decide the suit forthwith and that if it does not do so on that date it cannot do so thereafter.
6. The only reason on which the High Court has set aside the concurrent findings of the first appellate court being erroneous, the appeal is allowed.
The decision of the High Court is set aside and the decision of the first appellate court is affirmed.
7. There shall be no order as to costs.
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