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2009 Supreme(UK) 207
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Prafulla C. Pant, J.
Pooran Chandra Lohani S/o Sri Jai Dutt Lohani Resident of Simalgair Bazar, Pithoragarh. ... . Defendant / Appellant
Versus
Kailash Chandra Chilkoti S/o Sri Ram Dutt Chilkoti Resident of Bank Road, Pithoragarh. ... . Plaintiff / Respondent
Second Appeal No. 441 of 2001(Old No. 2063 of 1985)
Decided on : 27-04-2009
Mr. Lalit Samant, Advocate for the defendant / appellant. Mr. Rajendra Dobhal, Advocate for the plaintiff / respondent.
.
The main legal point established is that the court may proceed under Rule 3 of Order XVII of C.P.C. when a party's counsel is present but fails to adduce evidence, and the consistency of pre-existing amendments with subsequent legislative changes.
Headnote:
C.P.C. - Civil Procedure - Order XVII - 2, 3 - The court discussed the provisions of Rule 2 and Rule 3 of Order XVII of the Code of Civil Procedure, 1908, and their application when a party fails to appear or adduce evidence. The court also considered the Allahabad High Court amendment and its consistency with the C.P.C. (Amendment) Act, 1976.
Fact of the Case:
The plaintiff filed a suit for recovery of money against the defendant, who had borrowed a loan and executed a pronote. The defendant failed to repay the loan and claimed adjustments for expenses incurred on the plaintiff's vehicle. The trial court decreed the suit, and the first appellate court affirmed the decision.
Finding of the Court:
The court found that the trial court did not err in proceeding under Rule 3 of Order XVII of C.P.C. when the defendant's counsel was present but failed to adduce evidence. The first appellate court also did not err in upholding the trial court's order.
Issues: The issues included the borrowing of the loan, consideration of the pronote, categorization of the pronote, understanding of payment for fuel consumption charges, and the applicability of the U.P. Money Lending Act.
Ratio Decidendi: The court held that when a party's counsel is present but fails to adduce evidence, the court may proceed under Rule 3 of Order XVII of C.P.C. The Allahabad High Court amendment was found to be consistent with the C.P.C. (Amendment) Act, 1976.
Final Decision: The court affirmed the judgments and decree passed by the lower courts, dismissing the appeal and modifying the rate of interest in the plaintiff's favor.
This appeal, preferred under Section 100 of the of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 16.09.1985, whereby the first appellate court (District Judge, Pithoragarh), dismissed the civil appeal No. 4 of 1984, affirming the judgment and decree dated 19.10.1984, passed by the trial court (Civil Judge, Almora, Camp Pithoragarh), in Suit No. 03 of 1983.
2. Heard learned counsel for the parties and perused the record.
3. Brief facts giving rise to this appeal are that plaintiff / respondent Kailash Chandra Chilkoti instituted suit No. 03 of 1983, before the trial court with the pleading that the defendant (present appellant) took loan of Rs. 13,000/- from the plaintiff on 10.06.1980, and executed a pronote. It is further pleaded that 14% interest per annum was agreed to be paid by the defendant to the plaintiff. It is alleged in the plaint that the defendant failed to repay the loan. It is further alleged that neither the amount of loan nor any amount towards interest was paid. Therefore, the suit for recovery of money instituted.
4. Defendant was served with the summons. He filed his written statement. In the written statement execution of pronote is not denied by the defendant, but it is alleged that repayment of loan was to be adjusted towards the expenditure incurred by the defendant on the vehicle of the plaintiff which was plying with the defendant's Firm M/s Jai Dutt Lohani and Sons, for transportation of grains on hire, for the government supply.
5. The trial court, on the basis of the pleadings of the parties, framed following issues:
1. Whether, the defendant borrowed an amount of Rs. 13,000/- from the plaintiff on 10.06.1980, and executed the pronote?
2. Whether, the pronote dated 10.06.1980 execution of which is admitted to the defendant, is without consideration?
3. Whether, the pronote in question was executed in the manner as and under the impression as set forth in Para 19, 20 and 21 of the written statement?
4. Whether, the pronote in question comes under the category of a bond? If so, its effect?
5. Whether, there was an understanding that an amount of Rs. 13,000/- shall be paid to the plaintiff M/s Jai Dutt Lohani and Sons for meeting the fuel consumption charges of the truck for running the said truck, as alleged by the defendant in para 15 to 19 of the written statement?
6. Whether, the suit is barred by the provisions of U.P. Money Lending Act?
7. To what relief, if any, is the plaintiff entitled?
6. From the record it appears that the plaintiff adduced his evidence as P.W. 1 Kailash Chandra Chilkoti, and the others as P.W. 2 Ram Dutt Chilkoti and P.W. 3 S.S. Mehta, Branch Manager of the Cooperative Bank, Pithoragarh.
7. On behalf of the defendant adjournments were sought for adducing the evidence. After adjournment, the case was fixed for evidence of defendant, for 18.10.1984. On said date counsel for the defendant appeared but no evidence was adduced, instead again adjournment application was moved. Said application for adjournment was rejected, and the trial court proceeded under Order XVII Rule 3 of the Code of Civil Procedure, 1908. On 19.10.1984, the judgment and decree was passed by the trial court, decreeing the suit against the defendant for recovery of Rs. 17,882/- with interest for pendency of suit till the payment is made at the rate of 14% per annum. Aggrieved by said judgment and decree, the defendant preferred civil appeal (Civil Appeal No. 04 of 1984) before the District Judge, Pithoragarh. The first appellate court after hearing the parties, dismissed the appeal vide its impugned judgment and order dated 16.09.1985. Hence, this appeal was filed by the defendant before the Allahabad High Court on 21.11.1985, where it was admitted on 19.05.1986, on following substantial question of law:
Whether, Rule 2 of Order XVII of C.P.C. as inserted by Allahabad High Court amendment and the explanation attached thereto will have no application after the Code of Civil
