ORDER

1. This first appeal has been filed challenging the judgment and decree dated 17.12.2021 passed by the Fourth District Judge, Sagar in R.C.S.A./3900010/2016, whereby learned trial Court has dismissed the suit for want of evidence of the plaintiff. Learned counsel for the appellant submits that although the learned Court has passed the order dismissing the suit in the form of judgment and decree but perusal of it, shows that, learned Court has not considered any evidence and has not decided the matter on merits and ultimately has dismissed the suit for want of evidence of the plaintiff. Accordingly, he submits that such dismissal of suit comes within the purview of Order 17 rule 2 of CPC and not under Order 17 rule 3 of CPC. He submits that because of passing of judgment and decree, he has preferred first appeal but in fact he has remedy to challenge the same by way of application under Order 9 rule 9 of CPC accordingly, he prays for permission and liberty to file application under Order 9 rule 9 of CPC before the same Court.

2. Heard learned counsel for the appellant and perused the impugned judgment and decree along with other order-sheets submitted by the appellant/plaintiff on record of the first appeal.

3. Bare perusal of the impugned judgment and decree shows that learned Court below in Para 8 of the same has mentioned that the plaintiff was given more than 14-15 opportunities for producing evidence but he has not adduced any evidence and due to non-production of evidence by the plaintiff, the defendant has also not produced any evidence and ultimately, the learned Court has dismissed the suit for want of evidence of the plaintiff and not on merits.

4. Provisions of Order 17 rule 2 & 3 of CPC are reproduced as under :

Order XVII Rule (2) of CPC -- Procedure if parties failed to appear on day fixed- Where, on any day to which the hearing of the suit is adjourned, the parties on any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such order as it thinks fit.

(Explanation -- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present)

3. Court may proceed notwithstanding either party fails to produce evidence, etc.-- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, (the Court may, notwithstanding such default.-

a) if the parties are present, proceed to decide the suit forthwith, or

b) if the parties are, or any of them, is, absent, proceed under rule 2.

5. Bare perusal of the provision contained in Order 17 rule 2 of CPC depicts that if on the date of evidence, the plaintiff does not appear then the learned Court is free to dismiss the suit and undisputedly on the date of evidence, the plaintiff didn't appear, therefore, the learned Court was free to dismiss the suit for want of evidence of the plaintiff and it was not required to even list the case for evidence of the defendant. In any case, although the learned Court has passed the judgment and decree which prima facie appears to be under Order 17 rule 3 of CPC but in view of the fact that the plaintiff was not present in the Court on the date of evidence, the dismissal of suit will come under Order 17 rule 2 of CPC and not under Order 17 rule 3 of CPC.

6. Hon'ble the apex Court in the case of Mohandas v. Ghisia Bai reported in 2002 SCC OnLine SC 68, has held that if the plaintiff does not appear on the date of evidence, the case will fall under Order 17 rule 2 of CPC and not under rule 3. Similar view has been taken by coordinate Bench of this Court in the case of Laxman K