JUDGMENT : - This is defendants First Appeal. The plaintiff had filed a suit for the recovery of Rs. 19,945/-on the basis of a pronote dated 5-10-1971 for Rs. 7000/- and another pronote dated 6-10-1971 for Rs. 6000/-each of them carrying interest at the rate of Rs. 18/per cent per annum. The defendant filed written statement raising several pleas.

One of the pleas raised was that the document was not executed at Lalitpur as contended by the plaintiff but had been executed at Bhopal and the Court had no jurisdiction to try the suit. A legal plea was taken regarding the bar of U.P. Regulations of Money Lending Act.

2. After the issues had been framed in the case on 7-9-1977 the first date of hearing was fixed for 8-10-1977. On that date the defendant applied for adjournment on account of illness and the Court fixed 16-11-77. On that date the defendant moved an application 41-A by which the defendant prayed for filing handwriting experts report about the signature of the plaintiff on the receipt filed, by her. Another application was moved for directing the plaintiff to give specimen signature so that the same may be sent for examination by an expert. Both these applications were directed to be put up on 22-12-1977, as the court had no time that day. On that date the Presiding Officer was on leave and, therefore, the suit was directed to be put up on 21-1-1978. Prior to this also the defendant had moved an application 35-C as early as on 7-9-1977 for examination of the receipt signed by the plaintiff by an handwriting expert and for comparing the signature of the plaintiff thereon. No objection to this was filed and, ultimately, on 21-1-1978 when the case was taken up the plaintiff prayed for time to file necessary objection against this application on 28-1-1978 the plaintiff filed a reply which came up for orders on 4-2-1978. Again plaintiffs counsel wanted time, the Court fixed 18-2-1978 for disposal of the application. On that date also the case was adjourned. On 15-7-78 application 35-C was heard and the same was rejected. On the next date i.e. 19-4-1978 the defendant could not come and sought adjournment of the case and the same was allowed on payment of Rs. 75/as Costs. On the next date i.e. 3-5-78 the defendants counsel made an application for adjournment on the ground that defendant have not come up for some reasons and telegram had been received from the defendant that she was ill but this application was rejected on the ground that the defendant was adopting opting dilatory tactics. The court proceeded to decide the suit on merit and decreed the same. It is against this decree that the defendant has come up in First Appeal.

3. Learned counsel for the appellant has urged that in the circumstances of the present case the court had no jurisdiction to proceed under O.17, R.3, C.P.C. and the only made available to the court was to proceed under R.2 of O.17 by either passing an ex parte decree or to adjourn the suit. It is also submitted that the court has wrongly observed that the defendant had been adopting dilatory tactics and from a perusal of the record it would be apparent that she had not done any such thing. It was she who was being harassed by the plaintiff as she had to come from Bhopal to contest the case. She could not produce her evidence on the date fixed as she was ill on that date and this was a good reason to adjourn the hearing. Both the counsel have relied upon the Full Bench decision of this court in M.S. Khalsa v. Chiranji Lal (AIR 1976 Allahabad 290). Majority, view in this five Judges decision was delivered by Hon. K.B. Asthana, Chief Justice, Hon. Satish Chandra, 3. (as he then was) and Hon. H.N. Seth J. while the minority view was of Hon. R.L. Gulati and Hon. C.S.P. Singh JJ. The relevant portion of that decision which is applicable to the facts of the present case is as under:-

"So long as Rules 2 and 3 stand as they are, defectively though, I venture to suggest that -

(1) Rule 3 cannot be resorted to wh

Click Here to Read the rest of this document