Mahendra Jain vs Bhanwarlal Jain - 1997 Supreme(MP) 1142

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : Prafulla Bharat
For the Respondent: Ajit singh

Headnote:(1) Civil Procedure Code, 1908 – – O. 17 R. 2 and 3 – – both parties present – – defendant unable to produce evidence despite granting time – – case falls under this provision.
       (2) Civil Procedure Code, 1908 – – O.41 R.23 and O. 43 R.1 (u) – – order of remand by appellate Court under O.41 R. 23 – – miscellaneous appeal under O.43 R.1 (u) is maintainable.
       (3) Civil Procedure Code, 1908 – – S.11 – – order not passed in presence of party – – not binding upon it.
       (4) Appeal – – forum is to be determined by the provision under which the impugned order has been passed.
        Short Note
       1. This is an appeal against the judgment and decree (sic), dated 20.10.95, passed by the 1st Addl. Distt. Judge, Jabalpur, Bastar arising out of Civil Suit No. 77 – A/1983, decided on 30.4.1985 by the Court of 1st Civil Judge, Class – II, Jagdalpur.
       2. In this appeal, the learned counsel for the respondent has raised a preliminary objection to the effect that no appeal lies under Order 43 Rule 1 Clause (u) of the Code of Civil Procedure as the lower appellate Court has passed a judgment and decree remanding the case to the trial Court. The learned counsel for the appellants, on the other hand, argues that initially he has filed a second appeal, but by order, dated 17.1.94, passed by this Court in the course of motion hearing, Hon. Shri Justice R.S. Garg directed that no second appeal lies u/s.100 of the CPC. The remand order is appealable under Order 43 Rule 1 (u) of CPC. Therefore, this appeal was converted into the Misc. Appeal. For this reason, the order passed by Horn. Shri Justice R.S. Garg is binding on this Court.
       3. It is true that this appeal was converted as per order, passed by Hon. Shri Justice R.S. Garg. However, since this order was without notice to the respondent, the respondent is entitled to say that this order is wrong and so far as respondent is concerned, it is not binding on him. In view of this matter, the matter was heard.
       4. In the opinion of this Court, it is well established in view of the decision rendered by this Court in Mohd. Yousuf and others v. Smt. Jyotsana Ben and others (AIR 1996 MP 197) that a forum of appeal is to be determined by the provision under which the order is passed by the Court or by the provision under which the Court purports to pass the order. The judgment and decree was wrongly passed by the Court below. It was actually an order under Order 41 R. 23 of the CPC. Consequently, the second appeal filed by the appellant was rightly ordered by the Court to convert into Misc. Appeal.
       5. The trial Court passed a decree under Order 17 Rule 3 of CPC against the respondent which was challenged by the respondent in appeal u/s. 96 of CPC. The lower appellate Court has set aside the judgment and decree on the ground mentioned by it in para – 12 of its judgment holding that the Court below should not have exercised its power under Order 17 Rule 3 of CPC. In para – 8 of the judgment, it is stated by the lower appellate Court that on 13.3.85. Thakur Mahendra Singh Bhadoriya was examined and cross – examined. Thereafter, the appellants/plaintiffs closed their case. The case was then fixed for 19.4.85 for the evidence of the respondent. On 19.4.85, a request was made on behalf of the Senior Advocate, by the Junior Advocate Shri Dewangan that the Senior Advocate has gone to Jabalpur. The case was then adjourned to 29.4.85 saying that last opportunity is given to the respondent for leading evidence. On 29.4.85 again Senior Counsel Shri M.N. Thakur asked for adjournment. The trial Court refused to grant adjournment and proceeded under Order 17 Rule 3 of CPC after closing the case of the respondent. The case was fixed for arguments on 30.4.85 and on the same date judgment and decree was passed.
       6. The only question now remains to be determined in this appeal is whether the order, passed by the trial Court, should have been under Order 17 Rule 2 of CPC or under Order 17 Rule 3 of CPC. It is apparent from the facts stated above that the case was fixed for evidence on 19.4.85. On that date Junior Advocate Shri Dewangan appeared and requested for adjournment on the ground that Senior Advocate has gone to Jabalpur. The case was then adjourned to 29.4.85. This was the last opportunity given for producing the evidence on 29.4.85. On that date, Shri R.N. Thakur asked for adjournment. The trial Court refused to grant adjournment and proceeded under Order 17 Rule 3 of CPC it is clear from the order – sheet, dated 29.4.85, that the counsel appeared and asked for adjournment and he did not say that he had no instruction on 29.4.85. Since the counsel for the respondent participated in the proceedings, it would be deemed that the parties were represented at the time when the Court proceeded under Order 17 Rule 3 of CPC. The learned counsel for the appellants further pointed out that the counsel for the respondent further argued the case on merits thereafter when the case was heard on 30.4.85. It is thus clear that on 29.4.85, the counsel for the respondent has no instruction not to appear in the case. The trial Court, therefore, rightly proceeded under Order 17 Rule 3 of CPC.
       7. The further question is whether the trial Court was wrong in refusing to grant adjournment to the counsel for the respondent under Order 17 Rule 1 of CPC. Normally, this is a matter of exercise of discretion by the trial Court. Nevertheless, this Court can consider this aspect of the matter as the lower appellate Court has itself done. It is true that the respondent was not permitted to lead evidence, but for this reason neither the trial Court nor the appellants could be blamed for the order, dated 29.4.85. It was made clear by the trial Court that this was the last opportunity given to the respondent to produce the evidence, but the respondent did not do so and for this reason, the lower appellate Court was wrong in setting aside the order of the trial Court proceeding ex – parte and remanding the case for further trial giving the respondent an opportunity to leed evidence.
       8. In view of this matter, the judgment and decree of the lower appellate Court, which is in fact, an order for remand, is set aside. The case is sent back to the lower appellate Court to decide the appeal of the respondent on merits u/s. 96 of CPC.
       9. The appeal succeeds and is allowed to the extent indicated above. No order as to costs.