Transport Corporation Of India vs Vijayanand Singh @ Vijaymal Singh ...
2015 Latest Caselaw 961 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Case :- SECOND APPEAL DEFECTIVE No. - 268 of 2014 
 

 
Appellant :- Transport Corporation Of India 
 
Respondent :- Vijayanand Singh @ Vijaymal Singh And Anr. 
 
Counsel for Appellant :- P.K. Dubey,Dharampal Singh,S. Niranjan 
 
Counsel for Respondent :- P.C. Pathak 
 

 
Hon'ble Pankaj Mithal, J.

The suit of the plaintiff/appellant was dismissed by the court of Civil Judge (S.D.), Varanasi on 24.7.2013 for the non-presence of the plaintiff/appellant and for want of evidence, after rejecting the application for adjournment.

An appeal preferred against the above order by the plaintiff/appellant was dismissed by the appellate court vide judgment and order dated 18.10.2014 as not maintainable with observation to apply under Order 9 Rule 9 C.P.C. for recall of the above order.

The above two orders have been assailed by the plaintiff/appellant by means of this second appeal.

The office of the Stamp Reporter has reported that the second appeal is not maintainable.

On query being made as to why the appeal is not maintainable a further report was submitted that the instant appeal is not maintainable in view of Order 42 Rule 1 C.P.C.

Order 42 Rule 1 C.P.C. simply provides that Rules of Order 41 C.P.C. shall apply to the appeals from appellate decrees. It is difficult to comprehend the above objection of the office of the Stamp Reporter as Rule 1 of Order 42 C.P.C. in no way prohibits further appeal from the order dismissing the appeal.

In view of above, the objection of the Stamp Reporter is overruled.

I have heard Sri Dharampal Singh, Senior advocate on behalf of plaintiff/appellant and Sri Rajeev Mishra for the defendants/respondents.

Sri Singh has argued that the lower appellate court has manifestly erred in law in dismissing the appeal as not maintainable. The suit of the plaintiff/appellant was not dismissed in default simplicitor but also for insufficient evidence. Therefore, the order dismissing the suit was appealable and not liable to be set aside under Order 9 Rule 9 C.P.C.

Sri Rajeev Mishra, on the other hand, contends that in view of Order 17 Rule 2 and 3 C.P.C., the order dismissing the suit in default can be recalled, if necessary, under Order 9 Rule 9 C.P.C. and since the order is not in the nature of decree the appeal has rightly been dismissed as not maintainable.

On the respective submissions of the parties, the only question of law involved in this second appeal is whether the order of the trial court dismissing the suit in default and for want of evidence is appealable under Section 96 C.P.C., and consequently the present appeal is maintainable.

Learned counsel for the parties agreed for the final disposal of the appeal at the stage of admission by dealing with the above aspect of the matter, as no factual dispute is involved and accordingly addressed the Court on the above substantial question of law as formulated during the course of arguments & made known to them..

The relevant part of the order dated 24.7.2013 of the trial court dismissing the suit reads as under:

Þvr% LFkxu izkFkZuki= 158?k fujLr fd;k tkrk gS oknh dk okn oknh dh vuqifLFkfr ,oe~ lk{;kHkko esa [kkfjt fd;k tkrk gSA i=koyh nkf[ky nQ~rj gksA---ß

The trial court by the above order dismissed the suit for absence of the plaintiff/appellant and for want of evidence.

Rule 3 of Order 17 C.P.C. enables the Court to proceed with the suit notwithstanding failure of either of the party to produce evidence. It reads as under:

"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."
 

Under Rule 3 aforesaid where, any party to the suit fails to adduce evidence or to perform any other act for which time has been allowed by the Court, the Court may proceed with and decide the suit, if the parties are present, or if any one of them is absent, proceed under Rule 2 of Order 17 C.P.C. Thus, this rule provides for two options to the Court. The first option to proceed with the suit and decide it if the parties are present. The second option to proceed under Rule 2 if any one of the parties is absent.

Rule 2 of Order 17 C.P.C. provides that where on the date of hearing any party fails to appear the Court may dispose of the suit in one of the modes directed in that behalf by Order 9 C.P.C. or make such order as it thinks fit.

In other words, the above rule permits the Court to proceed under Order 9 C.P.C. if the party fails to appear in suit on the adjourned date of hearing.

Order 9 Rule 8 C.P.C. in turn provides that where on the date of hearing of the suit defendant appears and the plaintiff fails to appear, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof.

A conjoint reading of all the above three provisions would reveal that where the party fails to produce the evidence and is not present, the Court can proceed under Rule 2 of Order 17 C.P.C. which permits the Court to dispose of the suit in one of the modes prescribed under Order 9 C.P.C. One of the modes prescribed under Order 9 C.P.C. is contained under Rule 8 of Order 9 C.P.C. which empowers the Court to dismiss the suit in default for absence of the plaintiff if the defendant is present.

Thus, a suit can be dismissed in default both for the absence of the plaintiff and for want of production of evidence on his behalf.

In the instant case, the suit was fixed for evidence of the plaintiff on the adjourned date. On the adjourned date the plaintiff failed to appear to adduce any evidence. The Court, therefore, proceeded in accordance with Rule 3 of Order 17 C.P.C. read with Rule 2 of Order 17 C.P.C. to dispose of the suit in one of the modes prescribed under Order 9 C.P.C. Since the defendant was present and plaintiff had failed to appear and adduce evidence the suit was dismissed in default. Therefore, the dismissal of the suit for want of evidence was essentially dismissal in default as contemplated by Rule 8 Order 9 C.P.C. Accordingly, it was open for the plaintiff to have applied under 9 Rule 9 C.P.C. for setting aside the dismissal on the fulfilment of the conditions laid down therein.

A plain reading of Section 96 C.P.C. postulates that the appeal lies against a decree passed by the Court exercising original jurisdiction and not against any judgment or order. The term 'decree' has been defined in Section 2(2) C.P.C. to mean a formal expression of an adjudication which conclusively determines the rights of the parties with regard to to all or any of the matters in controversy in the suit. Accordingly, adjudication of a lis involved in a suit between the parties is necessary to constitute a decree. In the case of R. Rathinavel Chettiar1 it has been held that a decree must fulfil the following essential elements:

(i)There must be an adjudication in a suit.

(ii)The adjudication must determine the rights of the parties in respect of, or any of the matters in controversy.

(iii)Such determination must be a conclusive determination resulting in a formal expression of the adjudication.

The aforesaid decision has been followed with approval by the Supreme Court recently in the case of Rajni Rani2.

The reliance placed upon the case of Budhulal Kasturchand3 is of no assistance. In the aforesaid case the court was only concern with the dismissal of the suit for default in payment of costs for adjournment. It was not a case of dismissal of suit simplicitor for default of the party to appear on adjourned date of hearing rather in the said case parties were present.

The dismissal of the suit of the trial court as per the order referred to above was not an adjudication of the rights of the parties involved in the suit which can be formally expressed. It was simply an order of dismissal of the suit without any adjudication of any lis or rights of the parties. Therefore, the order of the trial court dated 24.7.2013 does not conform to the definition of a decree as contained in Section 2(2) C.P.C. In that situation, as it was not a decree, it was not amiable to appeal under Section 96 C.P.C.

In view of the aforesaid facts and circumstances, I am of the opinion that the lower appellate court committed no error in law in dismissing the appeal of the plaintiff as not maintainable.

In the event the appeal was not maintainable before the lower appellate court, as there was no decree to be appealed against, the second appeal before this Court would also not be maintainable.

The substantial question of law involved in this appeal is accordingly answered and it is held that the order of the trial court dismissing the suit for absence of plaintiff and for want of evidence is not in the nature of a decree against which an appeal would lie under Section 96 C.P.C. Consequently, no further appeal would lie against it under Section 100 C.P.C. to this Court.

The appeal is, therefore, dismissed with no order as to costs.

Dt: July 1, 2015

Brijesh.