The trial court's decision to dismiss the suit under Order 17 Rule 3 CPC was upheld, emphasizing the importance of providing ample opportunities to the parties to lead evidence.

Ajay Mohan Goel, J.

By way of this appeal appellant has assailed the judgment passed by the Court of learned District Judge, Kullu in Civil Appeal No. 41 of 2009 dated 26.10.2010, vide which learned appellate court while allowing the appeal filed by present respondents No.1 and 2 (plaintiffs) set aside the judgment and decree passed by the Court of learned Civil Judge (Sr. Division) Lahaul-Spiti at Kullu in Civil Suit No. 8 of 2008 dated 18.6.2009, whereby learned Civil Judge had dismissed the suit so filed by plaintiffs under Order 17 Rule 3 CPC. Records demonstrate that suit for possession was filed by present respondents/plaintiffs (hereinafter referred to as ‘plaintiffs) for retraining defendant by way of permanent injunction from causing interference over the suit land and for restraining defendant from dispossessing them from the suit land and the factory building standing thereon.

2. The suit so filed by the plaintiffs was resisted by the defendant by way of written statement.

3. On the basis of pleadings of the parties, learned trial court framed the following issues:-

“1. Whether the plaintiffs are in possession of the suit property? OPP.

2. If issue No.1 is proved, whether the plaintiffs are entitled for injunction? OPP.

3. Whether the suit is within time? OPP.

4. Whether the suit is not maintainable in the present form? OPD.

5. Whether the suit has been valued properly for the purpose of Court fee and jurisdiction? OP parties.

6. Relief.”

4. After framing of issues, which were so framed on 18.9.2008, plaintiffs were given time to lead evidence and the case was ordered to be listed on 18.12.2008 for plaintiffs’ evidence. On 18.12.2008 learned trial court passed the following order:-

“No PW is present, nor any steps taken. Adjournment prayed. Allowed. Now to come up for plaintiffs’ evidence. Put up on 6.4.2009.”

5. On 6.4.2009, learned trial court passed the following order:-

“No PW is present. Time prayed for plaintiff evidence. Allowed. Now to come up for plaintiff’s evidence on 18.6.2009. this is last opportunity. Steps be taken.”

6. On 18.6.2009 also no PWs was present and accordingly learned trial court dismissed the suit vide separate judgment under Order 17 Rule 3 of the CPC.

7. The judgment and decree so passed by learned trial court was challenged in appeal. Learned appellate court while setting aside the judgment and decree so passed by learned trial court remanded the case back to the learned trial court with the direction to decide the same afresh after affording one opportunity to the plaintiffs to lead evidence by, inter alia, holding that order so passed by learned trial court was liable to be set aside, as plaintiffs were not warned by learned trial court before taking extreme step of closing evidence and dismissing the suit.

8. The judgment and decree so passed by learned appellate court stands assailed by way of this appeal.

9. Despite service, as respondents/plaintiffs did not appear before the Court, accordingly they were ordered to be proceeded against ex parte on 13.7.2017.

10. It is pertinent to take note of the fact that though there were two plaintiffs before learned trial court, however, the judgment and decree passed by learned trial court was assailed only by one of the plaintiff’s, namely, Gaurav Arora.

11. I have heard learned counsel for the appellant/defendant and have also gone through the records of the learned courts below.

12. A perusal of the impugned judgment and decree demonstrates that what weighed with learned appellate court while deciding the judgment and decree passed by learned trial court was that learned trial court did not warn the plaintiffs before taking extreme steps of closing evidence and dismissing the suit. In my considered view, findings returned by learned appellate court that the judgment and decree passed by learned trial court was liable to be set aside, as the learned trial court had not warned the plaintiffs before taking extreme steps of closing evidence and dismiss