The court clarified the distinction between Order 17 Rule 2 and 3 of C.P.C. and emphasized that the suit has to be dismissed under Order 17 Rule 2 when the party or any of them failed to appear on the day fixed for evidence.

As per Hon'ble Shri N.K. Agarwal, J. :-

1. The instant first appeal under Section 96 of C.P.C. is directed against the order dated 28-2-2003 passed by IInd Additional District Judge, Durg in Civil Suit No. 6-A/2001 whereby and whereunder the appellant's/ plaintiff's suit has been dismissed for want of proof under Order 17 Rule 3 of C.P.C.

2. Brief facts of the case areas under:-

3. The appellant/plaintiff had filed a suit claiming relief of declaration, permanent injunction as well as for execution of sale deed in plaintiffs favour. The trial Court framed various issues on 10-1-2002. Thereafter the case was fixed for plaintiff's evidence on 28-2-2003. On 28-2-2003, neither plaintiff nor his witnesses were present before the Court. The counsel appearing on behalf of the plaintiff/appellant sought adjournment on the ground that the plaintiff is out of station. Prayer was opposed by the respondent's counsel. Learned trial Court after recording a finding that despite having several opportunities to adduce evidence, the plaintiff failed to adduce any evidence and since the suit is an old one and last chance was given to the plaintiff for producing his witnesses, thus it would not be in the interest of justice to grant him further time and dismissed the suit under Order 17 Rule 3 of C.P.C. and thereafter vide this Court's direction dated 9-12-2005, a decree has also been drawn by the Court below.

4. Shri M.K. Bhaduri, learned counsel for the appellant would submit that indisputably on the date fixed for evidence i.e. 28-2-2003, neither plaintiff nor his witnesses were present before the Court. It is also not in dispute that till then evidence was yet to begin and therefore, in such cases, learned trial Court has erred in dismissing the suit under Order 17 Rule 3 of C.P.C. As per him, the suit ought to have been dismissed by the trial Court under Order 17 Rule 2 of C.P.C.

5. On the other hand, Shri H.B. Agrawal, learned Sr. counsel and Smt. Renu Kochar, learned counsel appearing for the respondents supported the under and contended that the appellant was grossly negligent in prosecuting his suit. Despite several opportunities, he did not adduce any evidence and as such the trial Court has rightly dismissed the suit under Order 17 Rule 3 of C.P.C.

6. I have heard learned counsel for the parties and perused the order impugned and record of the Court below.

7. The scope and ambit of the Order 17 Rule 2 and 3 falls for determination in this appeal. Order 17 Rules 2 and 3 of C.P.C. read thus:-

"2. Procedure if parties fail to appear on day fixed.-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 in that behalf by Order IX or make such other 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 notwithstanding 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, 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.

8. Order 17 Rule 2 of C.P.C. permits the Court to adopt any mode provided in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the Court to act under the