This appeal under Section 96 CPC is directed against the judgment and decree dated 24.03.2014 passed by the District Judge, Pali, whereby, the suit filed by the plaintiff-appellant has been dismissed.

The plaintiff Ghisaram filed the suit for cancellation of sale deed executed on 22.03.1980 and registered on 14.04.1980 and for permanent and mandatory injunction.

A written statement was filed by the defendant No.1 denying the averments contained in the plaint. No written statement was filed by defendant Nos. 2 & 3.

Based on the averments made by the parties, the trial court framed as many as five issues.

The plaintiff was afforded several opportunities to lead evidence, however, none of the witnesses was present and, therefore, opportunity was granted on 20.09.2013 on costs and when no one appeared, on 18.11.2013 the evidence of the plaintiff was closed. On 19.03.2014, the defendants also closed their evidence without producing any witness and the suit was fixed for final arguments on 20.03.2014.

On 20.03.2014, plaintiff's counsel pleaded no instructions. Where after, the trial court after hearing the arguments of counsel for the defendants, decided the suit issue wise and for lack of evidence, decided issue No.1 against the plaintiff and issue Nos. 2, 3 & 4 against the defendants and, consequently, dismissed the suit.

Feeling aggrieved, the present appeal has been filed by the appellant-plaintiff Ghisaram.

Show cause notice was issued to the respondents and record of the trial court was summoned.

At the request of learned counsel for the parties, the appeal has been finally heard.

It is submitted by learned counsel for the appellant that though it appears from record that the appellant was granted several opportunities, however, factually the appellant being an aged and illiterate labourer, who is working far off at Gandhidham Kandla Port had no information regarding the suit being fixed for plaintiff's evidence and, where after, the counsel pleaded no instruction, regarding which the appellant-plaintiff was not given any notice by the counsel/court. It was further submitted that in any case the trial court was not justified in dismissing the suit on merits. It was prayed that the impugned judgment and decree be set aside and appellant be provided opportunity to lead evidence.

Learned counsel for the respondents vehemently submitted that in view of the conduct of the appellant in not appearing on several occasions before the trial court, he is not entitled for grant of any relief by this Court and the appeal deserves to be dismissed on account of conduct of the appellant during the trial of the suit.

I have considered the rival submissions and have perused the impugned judgment as well as the record of the trial court.

From the perusal of record, it is apparent that the appellant was provided several opportunities to lead evidence, whereby, the suit was fixed for his evidence on 19.08.2011 and after adjourning it on several occasions, last opportunity was granted on 20.09.2013 on payment of cost of Rs.500/-and the right to lead evidence was, ultimately, closed on 18.11.2013. The counsel appearing for the plaintiff pleaded no instructions on 20.03.2014 and on the same date, the arguments were heard by the trial court and, ultimately, the suit was decreed on 24.03.2014.

From the sequence of events noticed hereinbefore, when on 20.03.2014, the counsel for the plaintiff pleaded no instructions, either the trial court should have issued show cause notice to the plaintiff, as from the record it does not appear that before pleading no instructions, the counsel had issued any notice to the plaintiff or in any case, it should have dismissed the suit for default on part of the plaintiff.

Provisions of Order XVII, Rule 2 & 3 CPC reads 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 t