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High Court Of Madhya Pradesh
Shiv Dayal and K. K. Dube, JJ.
MADANLAL KANHAIYALAL - Appellant
Versus
JAI NARAYAN GENDALAL JATAV - Respondents
Civil Revision 64 Of 1968
Decided On : 04/14/1971
ORDER 17, RULE 3, C. P. C. - ADJOURNMENT - DEFAULT - APPEARANCE - INTERPRETATION - REMEDIES:
Fact of the Case:
Plaintiff failed to appear on an adjourned hearing in a suit for recovery of money. The trial court dismissed the suit under Order 17, Rule 3, C. P. C., holding that it was not maintainable as the suit had been dismissed under Order 17, Rule 2, C. P. C., and not under Order 17, Rule 2, C. P. C. The plaintiff filed a revision petition challenging the order.
Finding of the Court:
The court held that Order 17, Rule 3, C. P. C., applies only when a party is present and has committed the default referred to in the rule. It does not apply to a case where Rule 2 applies. Rule 3 contemplates the presence of the parties. Where the plaintiff does not appear on an adjourned hearing, the court may, under Rule 2, either dismiss the suit for default, simply adjourn the hearing to another date, or close the plaintiff's right to produce evidence and adjourn the hearing for further trial, but cannot dismiss the suit on merits. The court also held that where the court proceeds under Rule 3 in the absence of a party, although the other conditions laid down in the said Rule are fulfilled, the order must be construed as one under Order 17, Rule 2, not on the ground that it was not expedient for the court to do so, but on the ground that the court had no power to do so.
Issues: 1. Whether it is open to the Court to proceed under Order 17, Rule 3, c. P. C. , in the absence of a party? 2. Where the Court proceeds under Order 17, Rule 3 in the absence of a party and the conditions laid down in the said Rule are fulfilled, whether the order can still be construed as one under Order 17, Rule 2, merely on the ground that it was not expedient for the Court to do so?
Ratio Decidendi: 1. Order 17, Rule 3, C. P. C., applies only when a party is present and has committed the default referred to in the rule. It does not apply to a case where Rule 2 applies. Rule 3 contemplates the presence of the parties. 2. Where the plaintiff does not appear on an adjourned hearing, the court may, under Rule 2, either dismiss the suit for default, simply adjourn the hearing to another date, or close the plaintiff's right to produce evidence and adjourn the hearing for further trial, but cannot dismiss the suit on merits. 3. Where the court proceeds under Rule 3 in the absence of a party, although the other conditions laid down in the said Rule are fulfilled, the order must be construed as one under Order 17, Rule 2, not on the ground that it was not expedient for the court to do so, but on the ground that the court had no power to do so.
Final Decision: The court answered the questions referred to it as follows: (i) First question:--It is not open to the Court to proceed under Order 17, Rule 3, c. P. C. , in the absence of a party. In case of non-appearance of a party the matter must be dealt with under Order 17, Rule 2, c. P. C. However, under Rule 2 the Court has widest possible discretion to dispose of the suit in one of the modes directed by Order 9, C. P. C. or to make such other order as it thinks fit, but not to dismiss the suit on merits. The discretion has to be exercised on sound judicial principles and it will be subject to scrutiny by the superior Court. (ii) Second question:-Where the Court proceeds under Order 17, Rule 3, in the absence of a party, although the other conditions laid down in the said Rule are fulfilled, the order must be construed as one under Order 17, Rule 2, not on the ground that it was not expedient for the Court to do so, but on the ground that the court had no power to do so.
( 2 ) THE revision-petitioner filed in the Court of Small Causes a suit against the respondent for recovery of money. On October 7, 1967, which was the date for disposal of the suit, the defendant filed his written statement denying the claim. However, at the request of the plaintiff the hearing was adjourned to November 8, 1967, for evidence, subject to payment of Rs. 4/-as costs. On the last mentioned date, when the case was called on for hearing in the early hours, the plaintiff did not appear; and his counsel, though present, requested for time till 1 P. M. When equivalent Citation: the case was again taken up at about 1 P. M. , neither the plaintiff nor his counsel appeared. Thereupon the trial Court dismissed the suit saying that the plaintiff had not adduced any evidence in spite of an adjournment having been granted on the plaintiff's request for production of evidence. A decree was drawn up on the same date.
( 3 ) ON January 11, 1967, the plaintiff made an application under Order 9, Rule 9, c. P. C. , for restoration of the suit stating the circumstances in which he was prevented from appearing on November 8, 1967. The trial Court dismissed that application holding that it was not maintainable inasmuch as the suit had been dismissed under Order 17, Rule 3, and not under Order 17, Rule 2, C. P. C. Being aggrieved by that order, the plaintiff filed this revision.
( 4 ) TO answer the question referred to us, we shall first advert to the scheme of order 17, C. P. C. That Order, the heading of which is "adjournments" consists of only three Rules. Normally, on the date fixed for hearing, the hearing should begin and conclude. At any rate, it must continue from day to day until concluded, but there may be circumstances in which the Court may find adjournment of the hearing beyond the following day to be necessary. Rule 1 of Order 17 vests in the court a discretion to grant time to parties on sufficient cause being shown. Sometimes adjournment becomes necessary by the Court on its own motion. Rule 2 of Order 17 lays down the procedure to be followed by the Court when, on an adjourned hearing, the parties or any of them do not appear. Rule 3 enacts the procedure which the Court may follow when a party, who had taken time to produce his evidence or to perform any other act necessary to the further progress of the suit, commits default. As we shall presently discuss, Rule 3 contemplates appearance of both the parties on an adjourned hearing. However, Rule 3 has no application to a case where the hearing had not been adjourned at the instance of a party, or if it had been so adjourned, the party appeared on the adjourned hearing but was in default in respect of the act for which he had taken time.
( 5 ) THE three Rules of Order 17, C. P. C. , enact as follows:- Rule 1 " (1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit. (2) In every such case the Court shall fix a day for further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment: provided that, when the hearing of evidence has once begun, the hearing of the suit shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing beyond the following day to be necessary for reasons to be recorded. " equiv
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