Brij Gopal Mishra vs Dr. Manorama Srivastava (Sinha)
2017 Latest Caselaw 2509 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reportable
 
Court No. - 36
 
Case :- MATTERS UNDER ARTICLE 227 No. - 4083 of 2017
 
Petitioner :- Brij Gopal Mishra
 
Respondent :- Dr. Manorama Srivastava (Sinha)
 
Counsel for Petitioner :- Ram Kishun Misra
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Office is directed to restore the Vakalatnama filed on 12.7.2017 by Sri Uma Kant Mishra, learned Advocate on behalf of the petitioner.

By means of the present petition, the order dated 6.4.2017 passed by the Civil Judge (Senior Division), Allahabad is challenged whereby the Original Suit No. 243 of 2006 [Brij Gopal Mishra vs. Dr. Manorama Srivastava (Sinha)] was dismissed for want of prosecution under Order IX rule 8 of Code of Civil Procedure. It is recorded in the order impugned that 6.4.2017 was the last date fixed for cross examination of PW-1, the plaintiff's witness. Despite repeated calls, none of the parties were present.

The contention of learned counsel for the petitioner is that the suit of the petitioner/plaintiff has wrongly been dismissed under Order IX Rule 8 CPC as the defendant was also absent. In absence of both the parties, the suit could have been dismissed only under Order IX Rule 3 CPC and in any case, the provision of Rule 8 Order IX would not be attracted.

A perusal of the order-sheet indicates that the suit was at stage of evidence, the dates were being fixed by the court below for evidence and cross examination of the plaintiff. Last opportunity was given to the plaintiff to lead his evidence on 7.1.2017 and the plaintiff's witness was present on 18.2.2017. The matter was fixed for cross-examination of PW-1 on 21.3.2017. On 21.3.2017, last opportunity was given to the parties to cross examine PW1 on 5.4.2017. On 6.4.2017, neither the plaintiff nor the defendant was present despite repeated calls and hence the order of dismissal of suit under Order IX rule 8 CPC was passed.

Having noted the facts from the records, it is evident that the controversy revolves around Order XVII rule 2 & 3 of the Code of Civil Procedure. It would, therefore, be appropriate to extract the Order IX rule 3, 4 & 8 and Order XVII Rule 2 & 3 of the Code of Civil Procedure:-

"ORDER IX - APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE

3. Where neither party appears, suit to be dismissed-- Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

4. Plaintiff may bring fresh suit or Court may restore suit to file-- Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for [161][such failure as is referred to in rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.

8. Procedure where defendant only appears- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

ORDER XVII - ADJOURNMENTS

2. Procedure if parties fail to appear on day fixed-- 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.

[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]."

A careful reading of Order XVII rule 2 indicates that the said provision speaks of the discretion of the Court to proceed to dispose of the suit, in one of the modes, directed under Order IX or to make such order, as it thinks fit, in case the parties or any of them fail to appear on an adjourned date of hearing. Explanation to Rule 2, however, gives a discretion to the Court to proceed to decide the suit in absence of a party whose evidence or substantial portion thereof has already been recorded. Under rule 2, the expression "in one of the modes directed in that behalf by Order IX" or "make such order as it thinks fit" makes it clear that the Court can choose any one of the modes as provided in that behalf under Order IX.

Under Order XVII Rule 3, where any of the parties, whose evidence was to be recorded or whose witness was to appear on the date fixed, fails to comply with the Court's direction, notwithstanding such default, the Court may proceed to decide the suit forthwith, in a case where the parties to the suit are present. However, in a case, where the parties or any of them, are/is absent, having committed the said default, the Court has no option but to proceed under rule 2.

Thus joint reading of the rule 2 and 3 of Order XVII leaves no room for doubt that a discretion has been conferred upon the Court to choose as to the manner to proceed and pass appropriate orders in a given set of the facts and circumstances of the case, before it.

The Apex Court in the case of B. Janakiramaiah Chetty vs. A.K. Parthasarthi and others reported in 2003 (5) SCC 641 has held as under:-

"(9) In Rule 2, the expression used is "make such order as it deems fit", as an alternative to adopting one of the modes directed in that behalf by Order IX. Under Order XVII Rule 3(b), only course open to the Court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the Court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the Court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the Rule. While Rule 2 speaks of disposal of the suit in one of the specified modes. Rule 3 empowers the Court to decide the suit forthwith. The basic distinction between the two Rules. However, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the Court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present."

In the instant case, the date was fixed for evidence/cross-examination of PW-1. Both the parties were given last opportunity i.e. the plaintiff was directed to ensure his attendance as PW-1 and the defendant was directed to cross-examine him. On the date so fixed, both the plaintiff and defendant were absent. In such a situation, the Court had no option but to proceed as per rule 2, for dismissal of the suit. The mode adopted by the Court below i.e to dismiss the suit under Order IX rule 8 is in exercise of its discretionary powers conferred under Order XVII rule 2 CPC and cannot be said to suffer from the vice of jurisdiction.

The pronouncement of Gauhati High Court in Basanta Kumar Nag Choudhury vs. Bijit Lal Das reported in LAWS (GAU) 1982 3 2 relied upon by learned counsel for the petitioner, is distinguishable in the facts and circumstances of the present case.

This Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, therefore, does not deem it fit and proper to interfere.

The present petition fails and, is accordingly, dismissed.

Order Date :- 19.7.2017

B.K./-