ORDER :

Sanjay K. Agrawal, J.

1. The substantial questions of law involved, formulated and to be answered in this plaintiff's second appeal are as under:

"1. Whether the First Appellate Court is justified in dismissing the suit on merits instead of proceeding under Order 47 (sic 17) Rule 2 of CPC as on the date of evidence the plaintiff was not present and whether the First Appellate Court is justified in upholding that order?

2. Whether both the Courts below are justified in granting counter claim of the defendants on perverse ground?"

[For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking in the suit before the trial Court].

2. The essential facts required to be noticed for adjudication of this second appeal are as under:

(2.1) It is the plaintiff's case that suit land was originally held by one Mst. Safura Bai. Said Mst. Safura Bai has executed a Will in favour of plaintiff on 04.04.1995 in respect of suit land for area 0.926 hectares and for remaining part of the land i.e. 0.328 hectare, she has executed a sale deed in favour of the plaintiff on 05.06.1995 for a cash consideration of Rs.12,000/- and since then the plaintiff is in peaceful possession of the suit land but defendants No. 1 & 2, after death of Safura Bai on 5.6.1995, in collusion with the revenue authorities got their name recorded in the revenue records and are trying to interfere in his peaceful possession leading to filing of the suit for declaration of title and permanent injunction.

(2.2) Defendants No. 1 & 2 filed their written statement denying the plaint averments and claimed that they being the daughters of Safura Bai succeeded the property and Will is forged and fabricated, as such, they be declared title holders of the suit land; they further pleaded that neither the sale-deed was executed by Safura Bai in favour of plaintiff, nor any will was executed by her in favour of the plaintiff.

(2.3) During pendency of the proceeding, defendants No. 1 & 2 filed counter claim stating inter alia that they are owner of the property in question and, therefore, possession should be handed over to them by granting the counter claim.

(2.4) The suit was filed before the trial Court on 25.6.1997. On 24.11.2005 plaintiff's opportunity to lead evidence was closed as on the said date neither plaintiff appeared nor his witness appeared and his counsel sought time, which was declined by the trial Court and the matter was fixed on 30.11.2005 for recording the statements of defendants' witnesses but as defendants do not wish to examine any witness, defendants' opportunity to adducing evidence was also closed and ultimately, on 30.11.2005, the trial Court heard the matter finally and dismissed the suit on merits and counter claim was granted in favour of defendants, which was upheld by the first appellate Court, leading to filing of second appeal in which the substantial questions of law have been formulated, which have been set out in the opening paragraph of the judgment.

3. Mr. Anurag Singh, learned counsel appearing for the appellant would submit that on 24.11.2005, neither plaintiff appeared nor his witnesses appeared and plaintiff's counsel sought time for adducing evidence, which was declined by the trial Court and, therefore, learned trial Court ought to have proceeded under first part of Order 17 Rule 2 of the CPC and ought not to have dismissed the suit on merits under Order 9 Rule 8 of the CPC and the trial Court could not have proceeded the suit on merits as per explanation attached to Order 17 Rule 2 of the CPC as there was no evidence on record to proceed and decide the suit on merits, which has been upheld by the first appellate court erroneously. He further submits that since the defendants led no evidence, therefore, the court below ought not to have decreed the counter claim filed by the defendants as it is a cas