1980 Supreme(MP) 350

K. N. Shukla, J.
Sardar Preetam Singh v. Sardar Jangjeet Singh.
C. Revn. No. 743 of 1980 (I) ; Decided on 16-10-1980.

Headnote:(1) Civil P. C., 1908 -- O. 18, R. 17 -- recalling of witnesses under -- when may he refused -- application filed after two years -- circumstances also against applicant -- refusal proper.

        (2) Civil P. C. 1908 -- O. 17, Rr. 2 and 3 (a), O. 9, R. 7 -- procedure under -- applicability of -- action taken under O. 17, R. 2 -- proper course open to pony aggrieved is one provided under O. 9, R. 7.

        Grievances of the petitioner are that the trial Court erroneously refused to recall the plaintiff under Order 18, rule 17 of the Code of Civil Procedure and also to adjourn the case for examination of the defendants witness and that the learned Judge acted illegally in not permitting the petitioner to lead evidence on the adjourned dath which was fixed for final arguments.

        Held : After perusing the impugned orders and hearing learned counsel for the parties I do not see any merit in this revision petition. The order sheet dated 29-8-80 shows that the learned Judge gave a very cogent reason for refusing to re-call the plaintiff who had already been examined on 2-2-1978 i.e. more than two years before the application under Order 18, rule 17 of the Code was filed by the petitioner-defendant. The trial Judge observed further that the case was fixed for evidence on that very date but the defendant was neither present nor had kept his witnesses ready. The Defendants counsel was present in Court and applied for adjournment which was refused and the case was posted for final arguments after closing the evidence.

        Shri Patel learned counsel for the petitioner argued that the Court below was wrong in taking action under Order 17, rule 3 (a) Civil Procedure Code because in fact action under Order 17, rule 2 of the Code only could be taken in the circumstances of the case. According to him when the defendant and his witnesses were absent, the Court ought to have proceeded under Order 17, rule 2 and not under Order 17, rule 3 ibid.

        This argument does not help the petitioner. If the proper procedure applicable in such a situation was one as prescribed under Order 17, rule 2 of the Code, then the course open for the petitioner-defendant was to seek redress under the provisions of Order 9, rule 7 or other rules and he could not claim to lead evidence without setting aside the ex-parte order. Revision dismissed.