The main legal point established is that when a party fails to appear, the Court should dismiss the suit under Order IX Rule 8 of the C.P.C.

JUDGMENT :

1. With the consent of learned counsel for the parties, the matter is heard finally.

2. This first appeal has been preferred under Section 96 of the Code of Civil Procedure, 1908 [hereinafter referred to as 'the C.P.C], challenging the judgment and decree dated 30.08.2019 passed by the XI Additional District Judge, Rewa, in a Civil Suit No.15-A/2015, whereby the suit of the plaintiffs/appellants has been dismissed on merits.

3. A short question has been raised by the appellants that in view of the facts and circumstances of the case, the Court below has committed error in deciding the suit on merits whereas the same ought to have been dismissed by the Court as per the provisions of Order IX Rule 8 of the C.P.C.

4. Learned senior counsel for the appellants submits that the appellants are not aggrieved with the dismissal of the suit, but raising an objection in respect of the manner in which the suit has been decided. It is also contended by learned senior counsel that the Court below has observed that in accordance with the provisions of Order XVII Rule 2 of the C.P.C., the order has been passed but that was not under the said provision and the Court has proceeded taking shelter of the explanation appended thereto, whereas the same was not applicable in the facts and circumstances of the case.

5. Considering the aforesaid short question involved, the matter is heard finally.

6. To resolve the controversy involved in the case and to answer the question as to whether the trial Court has rightly proceeded under Order XVII Rule 2 C.P.C. deciding the matter on merits or the Court below ought to have dismissed the suit simpliciter as per the requirement of Order IX Rule 8 of the C.P.C., certain necessary facts in brief are required to be taken note of, those are as follows:-

That, the plaintiffs have filed the suit for declaration and partition claiming l/5th share in the suit property and also sought declaration that the Will executed in favour of defendant No.2 shall be declared void to the extent of interfering in the share of the plaintiffs.

The suit was filed on 02.03.2009 along with the documents as mentioned in the List of Documents. The written statement was filed by the defendants and they have also filed a separate suit along with their written statement. Vide order dated 05.07.2014, the proceedings of said civil suit i.e. Civil Suit No.25-A/2010 were stayed in pursuance to the provisions of Section 10 of the C.RC. Issues were framed on 09.10.2014 and thereafter the case was fixed for 16.10.2014 for recording the evidence, but no evidence of the plaintiffs was recorded although there were several applications filed and even decided by the Court. On 03.11.2015, last chance was granted to the plaintiffs to record their evidence and thereafter, continuously several opportunities were granted and finally on 14.03.2016, last chance was given with a cost of Rs.200/-. On 21.09.2016, a warning was given to the plaintiffs giving them one more opportunity with a condition that if the evidence is not recorded, then the right to lead evidence would be closed. However, thereafter, an application under Order XXII Rule 3 was filed and decided and again on 06.12.2016, one more opportunity was granted to the plaintiffs to lead evidence and the case was fixed for 19.12.2016. On this date, the Court waited till 04:30 p.m. for the plaintiffs and his witnesses, but nobody appeared and they remained absent, even affidavits of the witnesses of plaintiffs were not produced. The right of the plaintiffs to lead evidence was, therefore, closed and the Court fixed the case for recording the evidence of defendants.

Even after fixing the case for recording the evidence of the defendants, the plaintiffs never appeared, accordingly, the statement of the witnesses of defendants were recorded. On 25.04.2017 and 05.05.2017, after recording the statem