In cases where parties fail to appear, the court should adopt a substantial justice-oriented approach and provide an opportunity for both parties to lead their evidence.

( 1 ) HEARD. Learned Counsel for the respondents submits that by some omission signatures on the reply to the application under Section 5 of the Limitation Act bearing No. 1185/2000 have been left. Learned Counsel for the respondents may sign the application today in Court putting today s date, for the application is supported with a duly sworn affidavit. Insofar as the condonation of delay in filing the petition is concerned, though each day s delay may not have been minutely explained appropriately by giving details. But there is substantial explanation for delay in moving the petition. Accordingly, I feel that it would be appropriate to condone the delay for the reasons mentioned in the application. CM. 1185/2000 is allowed. C. R. 424/2000:

HEARD. 1. In this case, it appears that the case was fixed for evidence of the plaintiff. Last opportunity was granted. On 11/08/1998 none of the parties appeared. Learned Civil Judge instead of dismissing the suit dosed the evidence of the plaintiff and decided the suit on merit though it may be difficult to accept that it could be a judgment on merit. The application was moved for setting aside the order for restoration of the suit that was dismissed. It is apparent that Order 17 Rule 3, Civil Procedure Code would certainly not be attracted in case where none of the parties appear. Order 17 Rules 2 and 3, Civil Procedure Code read as under 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. 3. Court may proceed notwithstanding either party jails 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. 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. "

( 2 ) ORDER 17 Rule 2 deals with a suit where party does not appear and in such circumstances, the Court was supposed to proceed to dispose of the suit in one of the modes directed in that behalf or make such order as it thinks fit. My attention was dawn by the learned Counsel for the respondent to the explanation and he submits that substantial portion of the evidence has already been recorded, for the evidence of the defendant has already been closed. However, a very interesting thing is that evidence of the respondent was also closed in the same fashion and there is no proof to prove on record that substantial portion of evidence has been recorded. Consequently, the explanation would not be attracted in such a case.

( 3 ) IF, one considers the impugned order, it appears that the learned Trial Court has erred in deciding the application. Virtually both the parties have been left at that very stage where they started before filing the suit. Therefore, neither the contention of the defendant has been up held nor the contention of the plaintiff has been upheld. This virtually amounts to punishing both the parties. Instead of adopting substantial justice oriented approach, this approach is not desirable. Learned Counsel for the respondent also submits that he may also be allowed to lead evidence for his evidence is also dosed in the same way. This prayer is not opposed by the learned Counsel for the petitioner.

( 4 ) IN such circumstances, I think this revision has to be allowed and suit should be restored to its original number. The defendant as well as the plaintiff should be given an opportunity to lead their evidence. Since initial onus was put on the defendant, the defendant is given liberty to lead his evidence on next two dates as may