IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE VIVEK JAIN

th

ON THE 8 OF JANUARY, 2026

CIVIL REVISION No. 1314 of 2025

CANARA BANK

Versus

M/S SURABH KIRANA AND GENERAL STORE

Appearance:

Shri Aviral Vinayak Jaroliya - Advocate for the Petitioner.

ORDER District Khandwa, M.P. The said suit was filed on 26-10-1984. 3-5- 1994 was the date fixed for adducing evidence by the plaintiff- appellants. Instead of leading evidence, the plaintiff-appellants filed an application for seeking better particulars of the written statement. The said application was rejected. Immediately thereafter an application was moved under Order VI Rule 16 for deletion of certain paragraphs of the written statement. The said application was also rejected. On 7-5- 1994 the plaintiff-appellants remained absent. The counsel for the plaintiff-appellants on the said date moved an application for a short adjournment for filing revision against the order passed on 3-5-1994 rejecting the application of plaintiff-appellants. The said application for adjournment was dismissed. Thereafter the counsel for the plaintiff- appellants moved an application under Order VII Rule 1 on the ground that the plaintiff is seriously ill and, therefore, the case may be adjourned. The said application was also rejected. Thereafter the trial court dismissed the suit under Order XVII Rule 3 of the Code of Civil Procedure. The plaintiff-appellants preferred a first appeal before the first appellate court, but the same was dismissed. The second appeal preferred by the plaintiff-appellants was also met with the same fate. The High Court was of the view that the suit was dismissed not under Order XVII Rule 2, but was dismissed under Order XVII Rule 3. The validity of the judgment of the High Court is impugned in this appeal.

By way of the present Petition, the Petitioner has challenged the Order

dated 09.12.2024 whereby the Trial Court has dismissed the suit ostensibly under

Order 17 Rule 3 of CPC.

2. The present Revision is filed by the Plaintiff and the Trial Court vide

impugned Order dated 09.12.2024 had noted that though the learned counsel for the Petitioner/Plaintiff was present but neither the Petitioner/Plaintiff was present nor his witnesses were present and the Court noted that number of opportunities have been given to the Petitioner/Plaintiff to lead evidence which has not been availed and no evidence has been tendered, therefore, the suit was dismissed by

noting that it is a dismissal under Order 17 Rule 3 of CPC.

3. The dismissal is in absence of the Petitioner as well as his witnesses. It

has been held by the Hon'ble Supreme Court in case of Mohandas v. Ghisia Bai reported in AIR 2002 SC 2436 that in such circumstances, the dismissal would be

under Order 17 Rule 2 of CPC. The Hon'ble Apex Court has held as under:-

"1. The plaintiff-appellants herein filed a suit for declaration and for permanent injunction in the Court of Civil Judge, Class II, Harsud,

2. Learned counsel appearing for the appellants urged that the facts and circumstances of the case show that in fact the suit was dismissed under Order XVII Rule 2 and not under Order XVII Rule 3. Order XVII Rule

2 provides:

“2. Where, on any day to which the hearing of the suit is adjourned, the parties or 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 other order as it thinks fit.”

3. Order XVII Rule 3 provides:

“3. 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.”

4. In the present case what we find is that neither the plaintiff- appellants nor his witness